Harris v. United States of America (INMATE 3)

Filing 24

ORDER directing that: (1) the 23 Motion to Stay is DENIED; (2) the 23 objection to the recommendation is OVERRULED; (3) the 19 Report and Recommendation of the Magistrate Judge is ADOPTED; (4) the Motion under 28 USC 2255 is DENIED; (5) the 15 supplemental motion is DENIED; and (6) this case is DISMISSED WITH PREJUDICE. Signed by Chief Judge William Keith Watkins on 9/24/18. (djy, )

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

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CASE NO. 2:16-CV-415-WKW
[WO]

ORDER
Is aiding and abetting a Hobbs Act robbery a “crime of violence” under 18
U.S.C. § 924(c)(3)(A)? The Magistrate Judge’s Recommendation concludes that it
is a crime of violence. (Doc. # 19.) The Recommendation is due to be adopted.
Petitioner Demareio Harris pleaded guilty to brandishing a firearm during a
“crime of violence,” a violation of 18 U.S.C. § 924(c)(1)(A)(ii). (Doc. # 4-5, at 2.)
The term “crime of violence” is statutorily defined to mean a felony that
(A)

has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or

(B)

that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the
course of committing the offense.

18 U.S.C. § 924(c)(3). Clause (A) is called the “use-of-force clause,” while clause
(B) is known as the “residual clause.” The predicate “crime of violence” for Harris’s

conviction was aiding and abetting a Hobbs Act robbery in violation of 18 U.S.C.
§ 1951. (Doc. # 4-1, at 4; Doc. # 4-2, at 5; Doc. # 4-5, at 2.)
While incarcerated, Harris moved to vacate, set aside, or correct his sentence
under 28 U.S.C. § 2255. (Doc. # 1.) He argues that a Hobbs Act robbery is not a
“crime of violence” because it does not satisfy the § 924(c)(3)(A) use-of-force clause
and because the § 924(c)(3)(B) residual clause is unconstitutionally vague. (Docs.
# 1, 15, 23.)
The Magistrate Judge recommended that the court deny Harris’s motion.
(Doc. # 19.) Harris objected 1 to that Recommendation. (Doc. # 23, at 2.)2 He also
requested a stay pending the Eleventh Circuit’s decision in a case about whether the
residual clause is invalid. (Doc. # 23, at 1.)
As an initial matter, the court finds that Harris’s objections are inadequate.
An objection to a Magistrate Judge’s Recommendation must “pinpoint the specific
findings that the party disagrees with.” United States v. Schultz, 565 F.3d 1353,
1360 (11th Cir. 2009); see Fed. R. Civ. P. 72(b)(2) (requiring “specific” objections).

1

A September 5, 2018, docket entry incorrectly states that Harris failed to object.

2

Harris is an incarcerated pro se litigant. His objections were due on August 22, 2018.
(Doc. # 19, at 6.) “Under the prison mailbox rule, a pro se prisoner’s court filing is deemed filed
on the date it is delivered to prison authorities for mailing. Absent evidence to the contrary,
[courts] assume that the prisoner’s filing was delivered to prison authorities the day he signed it.”
Daker v. Comm’r, Ga. Dep’t of Corr., 820 F.3d 1278, 1286 (11th Cir. 2016) (cleaned up). Harris
dated his letter “August 22, 2018.” (Doc. # 23, at 3.) There is no evidence that he delivered his
objections on a later date. So his objection is timely.
2

“Frivolous, conclusive, or general objections need not be considered by the district
court.” Marsden v. Moore, 847 F.2d 1536, 1548 (11th Cir. 1988). Yet Harris simply
“objects to the Magistrate’s Report and Recommendation in its entirety.” (Doc.
# 23, at 2.) He does not identify specific errors in the Recommendation. Nor does
he cite any authority. Instead, he merely repeats his argument in a few short
sentences. (Doc. # 23, at 2–3.) So the court need not consider his objection.
Still, the court has conducted an independent and de novo review of the entire
Recommendation. See 28 U.S.C. § 636(b). The Recommendation is due to be
adopted.
The Eleventh Circuit held in In re Saint Fleur that a Hobbs Act robbery is a
“crime of violence” under the use-of-force clause. 824 F.3d 1337, 1340–41 (11th
Cir. 2016). The Eleventh Circuit also held in In re Colon that aiding and abetting a
Hobbs Act robbery is a “crime of violence” under the use-of-force clause. 826 F.3d
1301, 1305 (11th Cir. 2016). Those decisions compel the conclusion that the
predicate offense for Harris’s conviction was indeed a crime of violence.
Because the predicate offense for Harris’s conviction is a crime of violence
under the use-of-force clause, there is no need to consider whether the residual clause
is unconstitutionally vague. See United States v. St. Hubert, 883 F.3d 1319, 1328
(11th Cir. 2018); In re Smith, 829 F.3d 1276, 1280 (11th Cir. 2016). Nor is there
any need to stay the case until the Eleventh Circuit decides that issue.
3

Thus, after de novo review of the record and the Recommendation, it is
ORDERED that:
1. The motion for a stay (Doc. # 23) is DENIED;
2. The objection to the Recommendation (Doc. # 23) is OVERRULED;
3. The Recommendation of the Magistrate Judge (Doc. # 19) is ADOPTED;
4. The motion under 28 U.S.C. § 2255 (Doc. # 1) is DENIED;
5. The supplemental motion (Doc. # 15) is DENIED; and
6. This case is DISMISSED WITH PREJUDICE.
A separate Final Judgment will be entered.
DONE this 24th day of September, 2018.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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