Vieux v. Rathman

Filing 20

MEMORANDUM OPINION AND ORDER The court ADOPTS the magistrate judges report and ACCEPTS his recommendation that the court dismiss the petition for writ of habeas corpus as untimely and successive. To the extent that the petitioners filings of December 16, 2013 (doc. 18), and January 8, 2014 (doc. 19), are construed as interposing objections to the report and recommendation, such objections are OVERRULED. To the extent that the petitioners filings (Docs. 18 & 19) are construed as motions are DENIED. This court finds that the petition for writ of habeas corpus is DISMISSED WITH PREJUDICE as time-barred and successive. Signed by Chief Judge Karon O Bowdre on 1/24/14. (SAC )

FILED
2014 Jan-24 AM 09:40
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
RICHARD VIEUX,
Petitioner,
v.
JOHN RATHMAN, Warden, et al.,
Respondents.

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Case No. 2:11-cv-02209-KOB-PWG

MEMORANDUM OPINION AND ORDER
The magistrate judge filed a report and recommendation on December 3, 2013,
recommending that the court DISMISS the petition for writ of habeas corpus invoking 28 U.S.C. §
2241 WITH PREJUDICE as successive and time-barred under 28 U.S.C. § 2255. On December 16,
2013, the petitioner, Richard Vieux, filed a pleading styled “Traverse to Magistrate Judge’s Report
& Recommendation (‘Report’).” (Doc. 18). Additionally, on January 8, 2014, Vieux submitted a
pleading styled as a “Notice of Authority.” (Doc. 19). The court will treat these filings as objections
to the magistrate judge’s report and recommendation or, in the alternative, as motions.
As to Vieux’s objections, he generally “disputes the Report as a whole.” (Doc. 18 at 2). In
more specific terms, Vieux objects on the following grounds: (1) that equitable tolling should apply
to his petition; (2) that his § 2255 remedy is ineffective or unavailable, thus allowing him to invoke
the savings clause; (3) that his substantive claims based on the interpretation of 18 U.S.C.§ 2119 (the
federal “Carjacking Statute”) annunciated in Holloway v. United States, 526 U.S. 1 (1999), and
Jones v. United States, 526 U.S. 227 (1999), are meritorious; (4) that his claims are neither timebarred nor successive; and (5) that all of the other claims presented in the petition are cognizable.

(Id. at 1-14).1
Vieux first contends that his claims are saved by equitable tolling. (Doc. 18 at 1-2). As
Vieux notes, “the statute of limitations may be equitably tolled where a movant shows ‘(1) that he
has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way
and prevented timely filing.’” Lopez v. United States, 512 F. App’x. 1001, 1003 (11th Cir. 2013)
(quoting Holland v. Florida, 560 U.S. ---, ----, 130 S. Ct. 2549, 2562 (2010)). To satisfy these
requirements, a petitioner must demonstrate “reasonable diligence” and “an extraordinary
circumstance . . . that is both beyond the movant’s control and unavoidable even with diligence.”
Id.
Although not explicitly stated, Vieux presumably invokes equitable tolling in relation to the
sentencing court’s denial of his numerous motions to amend his first § 2255 motion in 1999. As
stated in the report and recommendation, Vieux attempted to amend his first § 2255 motion a total
of four times. (See Doc. 17 at 3). The sentencing court denied the first three motions to amend as
procedurally deficient, and struck the fourth amended petition from the record. (Id. at 3, 8). The
filing of deficient motions to amend is neither “beyond the movant’s control” nor “unavoidable even
with diligence.” Lopez, 512 F. App’x. at 1003; see Cuello v. United States., No. 11-2216, 2013 WL
1338839 at *8 (E.D.N.Y. Mar. 29, 2013) (pro se litigant’s ignorance of procedural requirements and
statute of limitations did not constitute “extraordinary circumstance” required to invoke equitable
tolling). Vieux’s failure to present the sentencing court with a proper motion to amend in 1999

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The objections also include a request that the court delay a final ruling on the instant
petition until the Eleventh Circuit issues an opinion in Bryant v. Warden, No. 12-11212, 2013
WL 6768086 at *1 (11th Cir. Dec. 24, 2013). (Doc. 18 at 8). This case also is the subject of
Vieux’s Notice of Authority (doc. 19) that the court will address separately below.
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cannot justify equitably tolling—for twelve years—the limitations period applicable to the instant
motion. Accordingly, Vieux’s objections based on equitable tolling are due to be OVERRULED.
Vieux’s remaining objections in the Traverse (doc. 18) are reiterations of arguments already
considered and correctly rejected by the magistrate judge. Vieux presents nothing warranting a
departure from the report and recommendation. Accordingly, Vieux’s remaining objections are due
to be OVERRULED.
Next, Vieux’s Notice of Authority argues that the Eleventh Circuit’s recently-issued opinion
in Bryant v. Warden, No. 12-11212, 2013 WL 6768086, at *1, supports his petition. (Doc. # 19).
In Bryant, the Eleventh Circuit considered whether a petitioner, whose previous motion to vacate
had been denied, could file a subsequent writ of habeas corpus under § 2241 pursuant to the
§ 2255(e) savings clause. Id. at *1. The sentencing court in Bryant construed the petitioner’s
previous conviction for possession of a concealed firearm as a “violent felony,” and enhanced the
petitioner’s sentence accordingly, consistent with the then-controlling precedent annunciated in
United States v. Hall, 77 F.3d 398, 401-02 (11th Cir. 1996). See Bryant, 2013 WL 6768086 at *1.
After the court sentenced the petitioner, the Supreme Court’s decision in Begay v. United States,
553 U.S. 137 (2008), set forth a new standard for evaluating which crimes constitute violent felonies;
under the Eleventh Circuit’s interpretation of this new standard, possession of a concealed firearm
no longer constituted a violent felony, overturning Hall. See Bryant, 2013 WL 6768086 at *1, *20.
In Bryant, the Eleventh Circuit explicitly held that Begay applied retroactively to cases on collateral
review. Id. at *22-23. In part because of this holding, the Eleventh Circuit held that the petitioner’s
sentence exceeded the statutory maximum, and that he could avail himself of the § 2255(e) savings
clause. Id. at *36.
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The Eleventh Circuit’s decision in Bryant has no bearing on Vieux’s carjacking case. As
explained in the report and recommendation, Vieux was charged with carjacking under 18 U.S.C.
§ 2119. The first subsection of the carjacking statute describes the basic offense, and subsequent
subsections establish higher penalties where the offense results in injury or death. See id. at § 2119
(2)-(3). When Vieux was convicted and sentenced, the Eleventh Circuit construed the subsections
of the Carjacking Statute not as elements of independent offenses to be proved to a jury, but as
sentencing factors for the judge to consider. See United States v. Williams, 51 F.3d 1004, 1009-1010
(11th Cir. 1995). After Vieux’s conviction and sentencing, the Supreme Court, in Jones, 526 U.S.
227 (1999), abrogated Williams, and held that the subsections of the Carjacking Statute establishing
higher sentences were indeed separate offenses that had to be proved to a jury. Earlier that same
month, the Supreme Court issued Holloway, 526 U.S. 1 (1999), in which it held that the Carjacking
Statute’s intent requirement was satisfied where, at the moment a defendant demanded or took
control a vehicle, he possessed the conditional intent to injure or kill the victim if necessary to steal
the car.
Vieux argues that Bryant dictates that he can utilize the § 2255(e) savings clause to challenge
his conviction under Jones and Holloway. However, as explained in the report and recommendation,
neither Jones nor Holloway are retroactively applicable to cases on collateral review. (Doc. 17 at
9-12). For this and other reasons, Bryant has no bearing on the instant case. As such, to the extent
that Vieux objects to the report and recommendation on the basis of Bryant, those objections are due
to be OVERRULED.
Finally, pursuant to 28 U.S.C. § 2253, Vieux must make a substantial showing of the denial
of a constitutional right to obtain a certificate of appealability. This petition is due to be dismissed
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as successive and untimely, and for failure to qualify for relief under the savings clause of § 2255(e).
As such, Vieux has not and cannot make the substantial showing of the denial of a constitutional
right necessary to obtain a certificate of appealability, and any such request is hereby DENIED. The
court ADVISES Vieux that he may request a certificate of appealability directly from the Court of
Appeals for the Eleventh Circuit.
The court has carefully reviewed and considered de novo all the materials in the court file,
including the magistrate judge’s report and recommendation and what the court has construed as the
petitioner’s objections (docs. 18 & 19). The court ADOPTS the magistrate judge’s report and
ACCEPTS his recommendation that the court dismiss the petition for writ of habeas corpus as
untimely and successive.
To the extent that the petitioner’s filings of December 16, 2013 (doc. 18), and January 8,
2014 (doc. 19), are construed as interposing objections to the report and recommendation, such
objections are due to be and hereby are OVERRULED. To the extent that the petitioner’s filings
(Docs. 18 & 19) are construed as motions, they are due to be and hereby are DENIED. Accordingly,
this court finds that the petition for writ of habeas corpus is due to be DISMISSED WITH
PREJUDICE as time-barred and successive.
The court will enter a Final Order dismissing the petition.
DONE and ORDERED this 24th day of January, 2014.

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KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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