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Thornton v. United States

United States District Court, S.D. West Virginia

April 12, 2019

RANDY L. THORNTON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          John T. Copenhaver, Jr., Senior United States District Judge

         Pending 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.

         This 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.

         Upon an 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)).

         I. Background

         On May 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.

         The 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 Cir. 2006).

         Following the Supreme Court's decision in United States v. Johnson, 135 S.Ct. 2551 (2015) (“Johnson II”)[1], 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 violent felony.

         II. Discussion

         The ACCA defines “violent felony” at 18 U.S.C. § 924(e)(2)(B) as follows:

         (B) The term “crime of violence” means any crime punishable by imprisonment for a term ...


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