Steiner v. United States of America (INMATE 3)

Filing 27

MEMORANDUM OPINION AND ORDER: It is ORDERED as follows: 1. Steiners objections (Doc. 26 ) are OVERRULED; 2. The Recommendation of the Magistrate Judge (Doc. 22 ) is ADOPTED; 3. Steiners 28 U.S.C. 2255 motion is DENIED; and 4. This action is DISMISSED with prejudice. A final judgment will be entered separately. Signed by Chief Judge William Keith Watkins on 11/14/2017. (dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JAMES STEINER,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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) CASE NO. 2:14-CV-1256-WKW
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[WO]
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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
In October 2009, a jury found Petitioner James Steiner guilty of conspiracy to
commit carjacking, in violation of 18 U.S.C. § 371; aiding and abetting a carjacking,
in violation of 18 U.S.C. §§ 2119 and 2; and aiding and abetting the use or carrying
of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C.
§§ 924(c)(1)(A) and 2.

Subsequently, on June 18, 2010, this court sentenced

Steiner to 195 months in prison. The Eleventh Circuit affirmed Steiner’s conviction
and sentence on September 7, 2011, United States v. Ware, 440 F. App’x 745 (11th
Cir. 2011), after which Steiner did not seek certiorari review in the Supreme Court.
On March 5, 2014, the U.S. Supreme Court decided Rosemond v. United
States, 134 S. Ct. 1240 (2014), which held that for a conviction under 18 U.S.C. §
924(c), the Government must show “that the defendant actively participated in the

underlying . . . violent crime with advance knowledge that a confederate would use
or carry a gun during the crime’s commission.” 134 S. Ct. at 1243. Arguing that
he had no such advance knowledge and that the Supreme Court’s ruling applied
retroactively, Steiner filed a motion under 28 U.S.C. § 2255 on December 29, 2014,
seeking to vacate his conviction under § 924(c). (Doc. # 1.) Specifically, Steiner
argued that he was actually innocent of the § 924(c) violation, that the trial court
erred by failing to instruct the jury of § 924(c)’s advance notice requirement, and
that his counsel was ineffective for failing to object to the erroneous jury
instructions. (Doc. # 1.) The Government opposed these claims on the grounds
that they were untimely, procedurally improper, and without merit. (Doc. # 6.)
On June 26, 2015, the Supreme Court announced another decision, Johnson
v. United States, 135 S. Ct. 2551 (2015), that Steiner believes affected his conviction
under § 924(c).

In Johnson, the Supreme Court held that the Armed Career

Criminal Act’s residual clause was unconstitutionally vague, and in Welch v. United
States, 136 S. Ct. 1257 (2016), the Supreme Court clarified that the rule announced
in Johnson applies retroactively. On January 11, 2016, Steiner amended his § 2255
motion and now argues that Johnson dictates that the residual clause in
§ 924(c)(3)(B) is unconstitutionally vague as well. (Doc. # 13.)

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In a Recommendation, filed pursuant to 28 U.S.C. § 636(b), the Magistrate
Judge finds that Steiner’s Rosemond claims are both time-barred and without merit
because Steiner had advance knowledge of the use of a firearm in the crime; that the
ineffective assistance of counsel claim is both time-barred and without merit because
his counsel could not be expected to predict a future Supreme Court holding; and
that the Johnson claim—though an issue of first impression—is without merit
because the conviction could be affirmed through an alternative provision within §
924(c).

(Doc. # 22.)

Accordingly, the Magistrate Judge recommends that

Steiner’s § 2255 motion be denied.
Steiner filed objections to the Magistrate Judge’s Recommendation. (Doc.
# 26.) Based upon an independent and de novo review of those portions of the
Recommendation to which objection is made, see 28 U.S.C. § 636(b), the
Recommendation is due to be adopted and the objections are due to be overruled.
II. DISCUSSION
Steiner objects to all of the Recommendation’s conclusions, including that his
Rosemond claim is time-barred and without merit, that his ineffective assistance of
counsel claim is time-barred and without merit, and that his Johnson claim is without
merit. Steiner also objects to what he alleges is the Magistrate Judge’s failure to

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address his claim that the trial court’s jury instructions were plainly erroneous. The
objections are addressed in turn.1
A.

Steiner’s Rosemond Claim
Steiner argues that the Magistrate Judge incorrectly finds that his Rosemond

claim was untimely under 28 U.S.C. § 2255(f)(1), which includes a statute of
limitations of one year from the date on which the conviction becomes final.
Instead of the § 2255(f)(1) limitation generally applicable to § 2255 motions, Steiner
argues that his Rosemond claim is subject to the rule found in § 2255(f)(3), under
which the statute of limitations does not begin to run until “the date on which the
right asserted was initially recognized by the Supreme Court, if that right has been
newly recognized by the Supreme Court and made retroactively applicable to cases
on collateral review.”

As explained, contrary to Steiner’s contentions, the

Magistrate Judge’s conclusion that the § 2255(f)(1) limitation applies is well
reasoned and correct.
First, it cannot be said that the Government waived its ability to assert a
timeliness defense. Steiner points out—and the Magistrate Judge recognizes—that
the Government used confusing language in noting that “[i]t appears that Rosemond

The facts and applicable law are set out in more detail in the Recommendation and are
not repeated here except as necessary to understand the court’s decision.
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did announce a new substantive rule . . . that should be made retroactively applicable
to cases on collateral review.” (Doc. # 6, at 20.) However, considering that this
excerpt falls within a section of the Government’s Response titled “Steiner’s § 2255
Motion Is Untimely Under § 2255(f)(1) And He Has Not Met The Requirements For
Application Of § 2255(f)(3) Unless This Court Itself Finds That Rosemond Is
Retroactively Applicable Under Teague v. Lane,” it is clear that the Government is
inartfully arguing in the alternative, not expressly waiving a timeliness defense.
(Doc. # 6, at 18.)
Second, the Magistrate Judge reasons that “nearly every” district court to
consider whether Rosemond applies retroactively has determined that it does not.
(Doc. # 22, at 4.) Opposing the substantial majority of district courts to consider
this issue, Steiner argues that Rosemond announced a new substantive rule, and it
therefore applies retroactively under Teague v. Lane, 489 U.S. 288 (1989). See
Welch, 136 S. Ct. at 1265–66. However, as the Magistrate Judge finds, Rosemond
did not announce a “new rule.” (Doc. # 22, at 5.) When considering a direct
appeal, the Eleventh Circuit mentioned that Rosemond “clarified” what the
Government must prove for a § 924(c) conviction, and this court will not go further
to find that Rosemond contains a new rule of law that applies retroactively. United
States v. Davis, 754 F.3d 1205, 1222 (11th Cir. 2014), reh’g en banc granted,
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opinion vacated, 573 F. App’x 925 (11th Cir. 2014), and on reh’g en banc reinstated
in relevant part, 785 F.3d 498 (11th Cir. 2015); see Walker v. United States, No.
2:14CV625-MHT-GMB, 2017 WL 4856277, at *3 (M.D. Ala. Sept. 27, 2017)
(finding Rosemond does not apply retroactively), report and recommendation
adopted, No. 2:14CV625-MHT, 2017 WL 4856167 (M.D. Ala. Oct. 26, 2017). But
see Farmer v. United States, 867 F.3d 837, 841–42 (7th Cir. 2017) (holding that
Rosemond does apply retroactively on collateral review).
Moreover, even if the court were to find that Rosemond had retroactive
application and Steiner’s claim were not time-barred, the Magistrate Judge correctly
finds his claim to be without merit. (Doc. # 22, at 6.) The Eleventh Circuit
specifically noted that Steiner was “aware” that his codefendant placed guns into the
vehicle that Steiner drove on the way to the carjacking, Ware, 440 F. App’x at 749,
and Steiner presents no authority or convincing reason for disturbing that finding.
Additionally, as the Magistrate Judge found, Steiner’s continued participation in the
carjacking after his co-defendants fired their weapons at the victims’ car is sufficient
under Rosemond to establish that he had advance knowledge that his cohorts would
use a firearm to accomplish the crime.2 See 134 S. Ct. at 1205 n.9.

Contrary to Steiner’s contentions, there is trial testimony suggesting that Steiner had
ample opportunity to abandon the crime once his co-defendants began firing their weapons. After
Steiner forced the victims’ car off the road and his co-defendants began firing their weapons, the
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B.

Steiner’s Jury Instruction and Ineffective Assistance of Counsel Claims
Steiner also objects to the Magistrate Judge’s purported failure to address

whether the district court erred by failing to instruct the jury on § 924(c)’s advance
notice requirement—the rule announced in Rosemond. While the Magistrate Judge
may not have squarely addressed this issue (instead addressing it in the context of
ineffective assistance of counsel), this claim is time-barred for the same reason that
Steiner’s direct Rosemond claim is time-barred. And, as argued by the Government
in its Response to Steiner’s initial § 2255 Motion, (Doc. # 6, at 26–27), Steiner is
procedurally barred from challenging those instructions on collateral review because
he did not challenge them on direct appeal. See McCoy v. United States, 266 F.3d
1245, 1258 (11th Cir. 2001) (enforcing procedural bar even when collateral attack
is based on new Supreme Court ruling).
Similarly, the Magistrate Judge correctly finds that Steiner’s claim for
ineffective assistance of counsel based on Rosemond’s advance notice requirement
is time-barred for the same reason that his direct Rosemond claim is time-barred.
(Doc. # 22, at 7.) And, even if that claim were not time-barred, Steiner’s counsel

four alleged perpetrators convened to discuss their next move before deciding to take the victims’
vehicle. Though it is unclear for how long Steiner and his co-defendants considered their situation
on the side of the road, it appears to have been more than enough time for Steiner to recognize and
object to the presence of firearms. (See Doc. # 6-3, at 25–26, 51.)
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cannot be deemed deficient for failing to predict a future Supreme Court ruling. “In
this circuit, we have a wall of binding precedent that shuts out any contention that
an attorney’s failure to anticipate a change in the law constitutes ineffective
assistance of counsel.” United States v. Ardley, 273 F.3d 991, 993 (11th Cir. 2001).
C.

Steiner’s Johnson Claim
Finally, Steiner objects to the Magistrate Judge’s conclusion that Steiner is

not entitled to relief based on the Supreme Court’s recent decision in Johnson. In
Johnson, the Supreme Court held that the residual clause in 18 U.S.C.
§ 924(e)(2)(B)(ii)—which provides an alternative definition of “violent felony”—
was unconstitutionally vague.

135 S. Ct. at 2557.

The Supreme Court later

clarified that Johnson’s holding applies retroactively on collateral review. Welch,
136 S. Ct. at 1264–65.

Based on Johnson, Steiner argues that the statutory

definition of “crime of violence” contained in § 924(c)(3)(B)—the residual clause—
is unconstitutionally vague as well.
The Magistrate Judge correctly reasons that, even if Johnson mandated that
§ 924(c)(3)(B) was unconstitutionally vague, Steiner’s conviction could be upheld
under § 924(c)(3)(A) (the “force clause”) as well because the carjacking involved
the use of force. (Doc. # 22, at 9); see In re Smith, 829 F.3d 1276, 1280–81 (11th
Cir. 2016) (“In short, our precedent holds that carjacking in violation of § 2119
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satisfies § 924(c)’s force clause, and that ends the discussion.”). Additionally, since
the Magistrate Judge issued his Recommendation and Steiner made his objections,
the Eleventh Circuit has held that “Johnson does not apply to or invalidate §
924(c)(3)(B).” Ovalles v. United States, 861 F.3d 1257, 1259 (11th Cir. 2017).
There is now no question that, in this circuit, § 924(c)(3)(B) is not unconstitutionally
vague under the Supreme Court’s decision in Johnson.
III. CONCLUSION
The Magistrate Judge’s Recommendation that this court reject Steiner’s
collateral challenge to his conviction under 18 U.S.C. § 924(c) contains no error, and
the objections to that Recommendation lack merit. Accordingly, it is ORDERED
as follows:
1.

Steiner’s objections (Doc. # 26) are OVERRULED;

2.

The Recommendation of the Magistrate Judge (Doc. # 22) is

ADOPTED;
3.

Steiner’s 28 U.S.C. § 2255 motion is DENIED; and

4.

This action is DISMISSED with prejudice.

A final judgment will be entered separately.
DONE this 14th day of November, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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