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Jones v. United States

United States District Court, N.D. West Virginia

September 16, 2019

KOFIE AKIEM JONES, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER DENYING PETITIONER'S MOTION TO AMEND AS UNTIMELY, AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE, OVERRULING PETITIONER'S OBJECTIONS AND DISMISSING CIVIL ACTION WITH PREJUDICE

          FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE

         I. Background

         Following a jury trial, the pro se[1] petitioner, Kofie Akiem Jones, was convicted of (1) conspiracy to rob banks and interfere with commerce by threats and violence, (2) attempted bank robbery, (3) armed bank robbery, (4) possession of a firearm in furtherance of a crime of violence, (5) interference with commerce by threats and violence, and (6) possession of a firearm in furtherance of a crime of violence. ECF No. 19 at 4/ECF No. 437 at 1.[2] The petitioner was sentenced to 535-months imprisonment followed by five years of supervised release. Id.

         Now pending before the Court is the petitioner's motion to vacate, set aside or correct sentence by a person in federal custody pursuant to 28 U.S.C. § 2255. ECF Nos. 1 and 12. In his motion, the petitioner asserts that “Johnson supra, retroactively vindicates [him] of liability.” ECF No. 1 at 1/ECF No. 350 at 1. He also requests assistance of counsel. Id.

         The petitioner then received a notice of deficient pleading and he later filed a motion under § 2255 on a court-approved form. ECF Nos. 4 and 12/ECF Nos. 354 and 360.

         In his motion, the petitioner claims he is entitled to relief on seven grounds. Id. First, the petitioner asserts that his due process rights under the Fifth Amendment of the United States Constitution were violated because he “was subjected under Count One to, 18 U.S.C. 371, which has been abrogated by Johnson[3] supra due to unconstitutionally vague language” (Ground One). ECF No. 12 at 5/ECF No. 360 at 5. Second, the petitioner states that his due process rights were violated when he “was charged with attempted bank robbery, which language has since been abrogated in light of Johnson, supra” (Ground Two). Id. at 6. Third, the petitioner asserts that his due process rights were violated because he “was charged with armed bank robbery (18 U.S.C. 2113) which language has since been abrogated by the Johnson, supra decision” (Ground Three). Id. at 8. Fourth, the petitioner contends that his due process rights were violated because he “was charged in Count Four for possession of a firearm in furtherance of a crime of violence, 18 U.S.C. 924(c) which language has since been abrogated by Johnson, supra” (Ground Four). Id. at 10. Fifth, the petitioner states that his due process rights were violated because he “was charged with Hobbs Act robbery in violation of, 18 U.S.C. 1951 . . . in which language has been abrogated in light of Johnson, supra” (Ground Five). Id. at 11. Sixth, the petitioner asserts that his due process rights were violated because he “was charged in Count Six with possessing a firearm in furtherance of a crime of violence, 18 U.S.C. 924(c) . . . in which language has been abrogated in light of Johnson, supra” (Ground Six). Id. Seventh, the petitioner contends that his due process rights were violated, stating that his “jury charge/instructions reflects the crime of violence language abrogated in light of Johnson, supra” (Ground Seven). Id.

         The government then filed an answer to the petitioner's petition. ECF No. 14/ECF No. 376. The government first states that the United States Court of Appeals for the Fourth Circuit has decided that armed bank robbery is categorically a “crime of violence” for a conviction under § 924(c), so the petitioner's challenge to the use of his armed bank robbery conviction in Count Three as a predicate for his “crime of violence” conviction in Count Four should be denied. Id. at 3-5. Specifically, the government states that the petitioner was not sentenced under the “residual clause” in the Armed Career Criminal Act (“ACCA”), the residual clause of the Career Offender guideline, nor the residual clause found in 18 U.S.C. § 924(e)(1)(B)(ii). Id. at 5. Rather, the government states that the petitioner was sentenced under the “force clause” found in 18 U.S.C. § 924(c)(3)(A), noting that the Fourth Circuit has already ruled that Johnson is inapplicable to the force clause of the armed bank robbery statute, and that armed bank robbery is a crime of violence. Id. Moreover, the government indicates that the petitioner has procedurally defaulted on that claim since he failed to raise it in any appeal of his sentence. Id. at 3, 5, 7-8. The government adds that every circuit has decided that Hobbs Act robbery is categorically a crime of violence for a conviction under § 924(c), and so the petitioner's challenge regarding his Hobbs Act robbery conviction in Count Five should be denied. Id. at 3-4, 6. Specifically, the government states that the petitioner was not sentenced in Count Six under the “residual clause” in the ACCA, the residual clause of the Career Offender guideline, nor the residual clause in 18 U.S.C. § 924(e)(1)(B)(ii). Id. at 5-6. Lastly, the government notes that the petitioner has procedurally defaulted on this claim as well for failing to raise it in any appeal of his sentence. Id. at 7. Similarly, the government contends that the petitioner failed to raise his void for vagueness contention on his direct appeal of his resentencing, and therefore the petitioner cannot establish cause and has procedurally defaulted. Id. at 7-8.

         The petitioner then filed what is titled as “Motion for Status Update/Second Request to Hold Proceeding in Abeyance for Requisite Time.” ECF No. 380.[4] The petitioner attached a copy of a letter from appointed counsel advising the petitioner that his office was “obligated to notify the Court there is no firm legal basis to support [his] claim. As such, no supplemental filings will be made by [the] office.” ECF No. 380-1 at 1. Specifically, the petitioner requests new counsel since his appointed counsel stated that there is no firm legal basis to support the petitioner's claims. Id. at 2-3. The Clerk of Court then sent the docket sheet to the petitioner. ECF No. 381.

         The petitioner then filed what is titled as “Consolidated Motion for Status Update/Motion of Notice of Change of Address. Motion to Preserve the Rights for Equitable Tolling.” ECF No. 16/ECF No. 396. In that motion, the petitioner states, “[o]n or about December 15th, 2016, this petitioner wrote this Honorable Court asking for [his] case to be held in abeyance under the conditions of ineffective assistance of counsel by Brian Kornbrath, this petitioner also provided exhibits and a detailed outline of the ineffectiveness concerning appointed counsel.” Id. at 2. The petitioner further indicates that “[o]n or about December 19th, 2016, [he] was transferred to Lewisburg Special Management Unit[ ] [sic] SMU where [he is] currently housed.” Id. Moreover, the petitioner alleges that he “still has not received his personal property and legal work since it was confiscated on August 5th, 2016.” Id. Lastly, the petitioner requests a “status update of his filings.” Id.

         The petitioner then filed what is titled as “Motion for Status Update/Motion to Amend/Supplement in Support of Habeas § 2255 Petition.” ECF No. 451.[5] In that motion, the petitioner requests that this Court “supplement/amend” the following cases “into his habeas § 2255 petition[:]” (1) United States v. Ali, 2019 U.S. App. LEXIS 4140 (4th Cir. Feb. 11, 2019); (2) United States v. Simms, 914 F.3d 229 (4th Cir. Jan. 24, 2019); (3) Dimaya v. Lynch, 803 F.3d 1110, 1120 (9th Cir. 2015); (4) United States v. Strayhorn, 743 F.3d 917 (4th Cir. 2014); (5) United States v. Feliciano, 747 F.3d 1284 (11th Cir. 2014); (6) United States v. Lewis, 802 F.3d 449 (3rd Cir. 2015); and (7) United States v. Henry, 797 F.3d 371 (6th Cir. 2015). Id. at 1-2. The petitioner states that he should be permitted “to supplement these appellant authorities into his pleadings pursuant to Fed.R.Civ.P. 15(c) because it relates back and will not result in prejudice to the opposing party.” Id. at 3.

         The petitioner has also filed what is titled as “Motion to Amend and Supplement in Accordance with F. R. Civ. P. 15(c)(1)(B) and F. R. Civ. P. 15(d).” ECF No. 452.[6] In that motion, the petitioner asserts that “after the Supreme Court's decision in Sessions v. Dimaya, 584 U.S. (2018) the residual clause of 18 USC § 924(c) is unconstitutionally [vague] [sic], and therefore Hobbs Act robbery can not support an enhancement under § 924(c) because Hobbs Act robbery ‘is' common law robbery with an interstate element, and 18 USC § 1951 is constructed in accordance with the common law to cover uses of both [‘violent'] [sic] and ‘nonviolent' force.” Id. at 4. Moreover, the petitioner cites Descamps v. United States, 133 S.Ct. 2276 (2016), and states that Descamps “teaches us that if a statute sweeps more broadly than the generic offense, a conviction under that statute cannot be used as a predicate for enhancement under § 924, even if the defendant actually committed the offense in its generic form.” Id. at 9. The petitioner also cites Descamps to support his contention that “a conviction under 18 USC § 2113(a) is not a crime of violence under the proper application of the categorical approach.” Id. at 11.

         The government then filed a response to the petitioner's motion to amend and supplement in accordance with Federal Rule of Civil Procedure 15(c)(1)(b) and Federal Rule of Civil Procedure 15(d). ECF No. 18/ECF No. 453. In its response, the government states that it incorporates its response in the government's answer to the petitioner's petition (ECF No. 14/ECF No. 376). Id. at 2.

         The petitioner filed a reply to the government's response to the petitioner's motion to amend and supplement in accordance with Federal Rule of Civil Procedure 15(c)(1)(b) and Federal Rule of Civil Procedure 15(d). ECF No. 454.[7] In his reply, the petitioner first contends that his “argument was aimed directly at 18 USC Section 924(c)(3)(A), the so-called ‘force clause.' This is because this circuit, and several others have already ruled that 924(c)(3)(B) is unconstitutionally vague.” Id. at 1. Second, the petitioner asserts “that the word ‘force' in the Hobbs [A]ct covers both ‘violent,' and ‘nonviolent,' uses of force, and that the Hobbs Act was specifically written to cover any and all uses of force, whether ‘violent,' or ‘non-violent.'” Id. The petitioner then asserts that the language of the Hobbs Act is broad and that the words “force, ” “violence, ” and “putting in fear” must be given their broadest possible meaning.” Id. Lastly, citing Scheidler v. NOW, 537 U.S. 393 (2003), the petitioner asserts that “any ambiguity as to the meaning of the word ‘force' under the Hobbs Act must be decided in favor of the petitioner.” Id. at 2.

         This action was referred to United States Magistrate Judge Michael John Aloi for initial review and report and recommendation pursuant to Local Rule of Prisoner Litigation Procedure 2 and 28 U.S.C. § 636(b)(1)(B). The magistrate judge filed a report and recommendation recommending that the petitioner's motion to vacate, set aside, or correct sentence by a person in federal custody (ECF Nos. 1 and 12/ECF Nos. 350 and 360) be denied and dismissed with prejudice. ECF No. 19 at 23/ECF No. 460 at 23. Moreover, the magistrate judge recommended that all of the following be denied as moot: (1) the petitioner's pending motion for status update/second request to hold proceeding in abeyance for requisite time (ECF No. 380); (2) the petitioner's consolidated motion for status update/ motion of notice of change of address/motion to preserve the rights for equitable tolling (ECF No. 16/ECF No. 396); (3) the petitioner's motion for status update/motion to amend/supplement in support of § 2255 motion (ECF No. 451); and (4) the petitioner's motion to amend and supplement in accordance with Federal Rule of Civil Procedure 15(c)(1)(B) and Federal Rule of Civil Procedure 15(d) (ECF No. 452). Id. at 23-24.

         The magistrate judge informed the petitioner that if he objected to any portion of the report and recommendation, he was required to file specific written objections within 14 days after being served with copies of the report and recommendation. Id. at 24.

         The petitioner then filed a motion for an extension of time to file objections to the magistrate judge's report and recommendation. ECF No. 21/ECF No. 462. This Court granted the motion for an extension of time. ECF No. 22/ECF No. 463. The order ...


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