United States District Court, N.D. West Virginia
ROMAN A. BROWN, Petitioner,
WARDEN, USP HAZELTON Respondent.
MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE,
OVERRULING PETITIONER'S OBJECTIONS AND DISMISSING
CIVIL ACTION WITHOUT PREJUDICE
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE
petitioner, Roman A. Brown, a federal inmate designated to
USP Hazelton in Bruceton Mills, West Virginia, filed a
petition for habeas corpus under 28 U.S.C. § 2241. ECF
No. 1. In the petition, the petitioner challenges the
validity of his sentence from the United States District
Court for the Middle District of Louisiana, Baton Rouge. ECF
No. 1 at 1. The petitioner alleges that his prior convictions
for simple robbery are not qualifying predicates under the
Armed Career Criminal Act (“ACCA”), citing
United States v. Johnson, 599 U.S. 133
(2010) (“Johnson I”), Johnson v.
United States, 135 S.Ct. 2551 (2015)
(“Johnson II”), and Mathis v.
United States, 136 S.Ct. 2243 (2016) for
support. Id. at 6; ECF No. 1-1 at 6-7. Specifically,
the petitioner alleges that pursuant to Johnson I,
his simple robberies do not qualify as “crimes of
violence” under the “force clause” of 18
U.S.C. § 924(e)(2)(B)(i), citing United States v.
Ervin, 198 F.Supp.3d 1169, 1177 (D. Mont. 2016).
Id. at 8. The petitioner states that the term
“physical force” “connotes an exertion
strong enough to constitute power. That is more force than is
entailed in any intentional physical contact, no matter how
slight.” Id. (citing Ervin, 198
F.Supp. at 1177 (quotation marks omitted)). Moreover, the
petitioner claims that since the crime of simple robbery in
Louisiana can be committed with less force than is required
by Johnson I, his prior convictions cannot stand
under the “force clause” of §
924(e)(2)(B)(i). Id. at 9. Further, the petitioner
contends that since the “residual clause” of
§ 924(e)(2)(B)(ii) was invalidated in Johnson
II, his prior convictions for Louisiana simple robbery
cannot be used to enhance his sentence under the ACCA.
Id. Specifically, the petitioner states that without
the ACCA enhancement, his statutory maximum sentence is ten
years of imprisonment. Id. For relief, the
petitioner requests that this Court grant his petition,
vacate his sentence and grant him release (as his time served
has been more than ten years). Id.
respondent then filed a motion to dismiss for lack of
jurisdiction (ECF No. 10) and a memorandum in support (ECF
No. 11). In support of the motion to dismiss, the respondent
asserts that the petitioner's petition should be
dismissed since the petitioner cannot demonstrate that 28
U.S.C. § 2255 is inadequate and ineffective to challenge
the legality of his sentence. ECF No. 11 at 6. Specifically,
the respondent states that the petitioner is not challenging
his conviction, but his sentence; therefore, the standard
established in In re Jones, 226 F.3d 328, 333-34,
does not apply and the Court must review the petitioner's
challenge under United States v. Wheeler, 886 F.3d
415 (4th Cir. 2018). The respondent then contends that the
petitioner cannot meet the second prong of the
Wheeler test, namely that the settled substantive
law changed and was deemed to apply retroactively on
collateral review. Id. at 11. Specifically, the
respondent asserts that Mathis and Johnson
I did not announce a substantive change in the law
deemed to apply retroactively on collateral review.
Id. at 12-13. Moreover, the respondent indicates
that the United States Supreme Court has held that even
though the residual clause is void for vagueness, the force
clause and the enumerated crimes clause of §
924(e)(2)(B) remain valid as defining the scope of the
predicate felonies under the ACCA. Id. at 13-15.
petitioner then filed a response to the respondent's
motion to dismiss. ECF No. 13. In his response, the
petitioner states that the retroactively applicable change in
law identified in his petition is Johnson II.
Id. at 3. The petitioner states that the United
States Court of Appeals for the Fifth Circuit held in his
direct appeal that the petitioner's prior convictions for
simple robbery fell under the “force clause” of
§ 924(e); however, that decision was before Johnson
I and Johnson II were decided. Id. at
2. The petitioner states that the Fifth Circuit's denial
to grant the petitioner a second or successive § 2255
based on Johnson II, which was decided before
Mathis, was error that demonstrates §
2255's ineffectiveness. Id. The petitioner
reiterates that since the simple robberies can be committed
without threat of force or use of force, those offenses
cannot stand under the “force clause” of §
924(e). Id. at 5. The petitioner asserts that
because the law has substantively changed, the petitioner is
able to proceed under the savings clause. Id.
respondent filed a reply to the petitioner's response.
ECF No. 14. In the reply, the respondent maintains that the
petitioner cannot meet the conditions under Wheeler.
Id. at 1. The respondent states that Johnson
II is inapplicable and that the petitioner also fails to
meet the third prong under Wheeler, namely that the
petitioner is unable to meet the gate-keeping provisions of
§ 2255(h)(2) for second or successive motions.
Id. at 2-5.
States Magistrate Judge James P. Mazzone then entered a
report and recommendation (ECF No. 15) and the petitioner
timely filed objections (ECF No. 16). In his objections, the
petitioner maintains that Johnson II is a
substantive change in law that is retroactively applicable to
cases on collateral review. Id. at 3. The petitioner
states that although the petitioner was sentenced under the
“force clause” of the ACCA, there have been
several substantive changes in the law that erode the Fifth
Circuit's holding that the petitioner's prior
convictions for simple robbery fell under the “force
clause” of § 924(e), citing Johnson I,
Johnson II, and Mathis. Id. at 4.
The petitioner states that after Johnson I, the
petitioner's simple robberies do not qualify as
“crimes of violence” under the “force
clause” of the ACCA. Id. at 4-5. The
petitioner then states that in Johnson II, the
Supreme Court found that the residual clause of §
924(e)(2)(B) was unconstitutionally vague and could not be
used to enhance a sentence under the ACCA; therefore, the
petitioner's prior convictions for simple robbery cannot
be used to enhance his sentence. Id. at 5-6.
Moreover, the petitioner contends that he has met the third
prong under the Wheeler test since the Fifth Circuit
denied him permission to file a second or successive petition
on August 23, 2016, which was prior to Welch, 136
S.Ct. 1257 (2016) and Mathis. Id. at 5-6.
Therefore, in erroneously denying the petitioner's
application, the petitioner has demonstrated why § 2255
is inadequate or ineffective. Id.
respondent then filed a response to the petitioner's
objections. ECF No. 17. In the response, the respondent
states that the magistrate judge was correct in determining
that the petitioner failed to satisfy either the second or
third prongs of Wheeler, and that the Court is
without jurisdiction to consider the § 2241 petition.
Id. at 1.
reasons that follow, this Court finds that the report and
recommendation of the magistrate judge should be affirmed and
adopted in its entirety.
28 U.S.C. § 636(b)(1)(C), this Court must conduct a
de novo review of any portion of the magistrate
judge's recommendation to which an objection is timely
made. Because the petitioner filed objections to the report
and recommendation, the magistrate judge's recommendation
will be reviewed de novo as to those findings to
which the petitioner objected. As to those findings to which
objections were not filed, all findings and recommendations
will be upheld unless they are “clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A).
Court has conducted a de novo review of the portion
of the magistrate judge's report and recommendation and
finds that the magistrate judge's report and
recommendation should be affirmed and adopted in its
the magistrate judge correctly found that the petitioner has
failed to satisfy either the second or third prongs of
Wheeler. Id. at 9. Specifically, in
Johnson II, the Supreme Court held that the residual
clause of § 924(e)(2)(B)(ii) was void for vagueness,
thereby invalidating any increased sentence imposed under
that subsection. In Welch v. United States, 136
S.Ct. 1257 (2016), the Supreme Court held that its decision
in Johnson II was retroactive and provided that any
prisoner who was sentenced under the residual clause of the
ACCA could file a § 2255 petition to seek relief.
Id. at 10. However, the petitioner was not sentenced
under the residual clause of the ...