United States District Court, S.D. West Virginia
RANDY L. THORNTON, Movant,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr., Senior United States District Judge
is the movant's Emergency Motion to Correct Sentence
Under 28 U.S.C. § 2255, filed on June 13, 2016, by his
counsel, Federal Public Defender Christian M. Capece.
action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On March 9, 2018, the magistrate
judge entered his PF&R recommending that the motion be
denied, and this matter be dismissed from the docket of the
court. The movant timely filed objections on March 19, 2018.
Upon the court's direction, the United States responded
to the objections on April 12, 2018 and the movant replied on
May 11, 2018.
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made.'” Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
12, 2005, movant was convicted by a jury in the above-cited
criminal case of two counts of being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g)(1). At
sentencing, the court found that the movant had committed at
least three prior violent felonies, thus meeting the
statutory criteria pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), subjecting
him to a mandatory minimum sentence of fifteen years, with a
guideline range of 262 to 327 months. Specifically, as
specified in both counts of the indictment, the movant
previously committed the following offenses:
a. Convicted on or about July 12, 1973, in the Court of
Common Pleas Lake County, Ohio, of unarmed robbery, in
violation of Ohio Revised Code § 2910.12;
b. Convicted on or about August 19, 1975, in the Court of
Common Pleas Lake County, Ohio, of escape in violation of
Ohio Revised Code § 2921.34;
c. Convicted on or about October 2, 1975, in the Court of
Common Pleas Lake County, Ohio, of burglary, in violation of
Ohio Revised Code § 2911.12 and felonious assault in
violation of Ohio Revised Code § 2903.11;
d. Convicted on or about August 14, 1980, in the Circuit
Court of Kanawha County, West Virginia, of attempted robbery
by violence, in violation of W.Va. Code § 61-2-12; and
e. Convicted on or about December 5, 1980, in the Circuit
Court of Kanawha County, West Virginia, of malicious
wounding, in violation of W.Va. Code § 61-2-9.
movant was sentenced to serve 262 months in prison followed
by a five-year term of supervised release, as well as a $5,
000 fine and a $200 special assessment. Although the Judgment
and Commitment Order does not identify with specificity the
convictions upon which the court relied in making the ACCA
determination, a review of the sentencing transcript reveals
that the court found that movant had been convicted of five
violent felonies, as set forth in paragraphs 28 (1973 Ohio
unarmed robbery), 30 (1975 Ohio burglary and felonious
assault), 31 (1980 West Virginia attempted robbery by
violence), 32 (1980 West Virginia escape) and 34 (1980 West
Virginia malicious wounding) of the presentence report.
Transcript of Sentencing Hearing, ECF # 103 at 15. The
movant's conviction and sentence were affirmed on appeal.
United States v. Thornton, 209 Fed.Appx. 297 (4th
the Supreme Court's decision in United States v.
Johnson, 135 S.Ct. 2551 (2015) (“Johnson
II”), in which the Court found the residual
clause of the ACCA to be unconstitutionally vague, the movant
filed the instant motion arguing that he no longer qualifies
as an Armed Career Criminal. Specifically, he argues that
without the residual clause, the definition of “violent
felony” no longer covers at least three of his prior
convictions. The magistrate judge disagreed, and recommended
in his PF&R that the court find: (1) movant's West
Virginia malicious wounding conviction is a violent felony;
(2) movant's West Virginia attempted robbery by violence
conviction is a violent felony; (3) movant's Ohio unarmed
robbery conviction is a violent felony; and (4) movant's
Ohio burglary conviction is not a violent felony. The
PF&R also recommends that the court decline to address
whether movant's Ohio felonious assault conviction is a
ACCA defines “violent felony” at 18 U.S.C. §
924(e)(2)(B) as follows:
term “crime of violence” means any crime
punishable by imprisonment for a term ...