Knight v. United States of America

Filing 7

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 4/7/2016. (PSM)

FILED
2016 Apr-07 PM 03:46
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CHARLES EUGENE KNIGHT,
Petitioner,
vs.

UNITED STATES OF AMERICA
Respondent.

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2:15-cv-8017-LSC
(2:08-cr-383-LSC)

MEMORANDUM OF OPINION
I.

Introduction
The Court has before it Petitioner Charles Eugene Knight’s (“Knight’s”)

Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.
(Doc. 1.) The Government has responded in opposition to the motion (doc. 3), and
Knight has replied (doc. 4.) For the reasons stated below, the motion is due to be
denied.
II.

Background
Knight’s sentence results from his conviction by a jury of possession with

intent to distribute five grams or more of cocaine base in violation of 21 U.S.C. §
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841(a)(1) (count 1), possession of a firearm in furtherance of a drug trafficking
crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) (count 2), and possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g)(1) (count 3).
This Court sentenced Knight to a term of imprisonment of 293 months as to
count 1 and 3, separately, with each count to run concurrently with the other, plus a
term of imprisonment of 60 months as to count 2, with the sentence in count 2 to
run consecutively with the sentence imposed in counts 1 and 3, for a total term of
353 months. Judgment was entered on February 6, 2009.
Knight appealed, and the Eleventh Circuit Court of Appeals affirmed
Knight’s convictions and sentence in an opinion issued on January 14, 2010. Knight
did not petition the United States Supreme Court for a writ of certiorari.
Knight filed a motion pursuant to § 2255 on October 22, 2010. (Doc. 55, and
docketed in civil case number CV-10-LSC-8046.) This Court denied the motion on
the merits on July 6, 2012. The Eleventh Circuit Court of Appeals denied Knight’s
motion for a certificate of appealability on August 31, 2012.
Knight filed another motion with this Court pursuant to § 2255 on
November 4, 2013. (Doc. 59.) This Court denied that motion on March 6, 2015,
because it was successive and Knight did not obtain prior authorization to file a
successive § 2255 motion from the Eleventh Circuit. (Doc. 60.)

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Knight filed the instant § 2255 motion on August 3, 2015. (Doc. 61 and
docketed in civil case number 2:15-cv-8017-LSC.)
III.

Discussion
This is Knight’s third motion filed pursuant to § 2255. It, like his second

motion, is also due to be denied for lack of jurisdiction. 28 U.S.C. §2255(h)
requires Knight to follow the procedures of 28 U.S.C. § 2244(b)(3)(A), which
states, “Before a second or successive application permitted by this section is filed
in the district court, the applicant shall move in the appropriate court of appeals for
an order authorizing the district court to consider the application.” Since Knight
has not received authorization from the Eleventh Circuit Court of Appeals to file
this successive motion, the Court lacks jurisdiction to consider it.
Even if the Eleventh Circuit had authorized Knight to file this successive
motion and thus this Court had jurisdiction, the motion would be due to be denied
because the Supreme Court case on which Knight bases his claim, Johnson v.
United States, 135 S. Ct. 2551 (2015), does not apply retroactively to cases on
collateral review in which a petitioner is attempting to file a second or successive §
2255 motion. An application for an order permitting a district court to consider a
second or successive motion to vacate, set aside, or correct a federal sentence may
be granted only if the Eleventh Circuit certifies that the second or successive

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motion involves one of the following “two narrow circumstances,” Gilbert v.
United States, 640 F.3d 1293, 1305 (11th Cir. 2011) (en banc):
(1) newly discovered evidence that, if proven and viewed in
light of the evidence as a whole, would be sufficient to establish by
clear and convincing evidence that no reasonable factfinder would
have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was previously
unavailable.
28 U.S.C. § 2255(h). Knight does not claim that subsection one is implicated here.
As to subsection two, a “new rule of constitutional law,” applies retroactively to
criminal cases that became final before the rule was announced only if that rule falls
within one of two narrow exceptions. See Teague v. Lane, 489 U.S. 288, 308, 109 S.
Ct. 1060, 1074 (1989) (plurality opinion). The first exception requires the
retroactive application of “[n]ew substantive rules.” Schriro v. Summerlin, 542 U.S.
348, 351, 124 S. Ct. 2519, 2522 (2004) (emphasis omitted). The second exception
requires the retroactive application of “a small set of watershed rules of criminal
procedure implicating the fundamental fairness and accuracy of the criminal
proceeding.” Id. at 351, 124 S. Ct. at 2523 (internal quotation marks and citation
omitted).
The Eleventh Circuit has held that Johnson created a new substantive rule of
constitutional law. In re Rivero, 797 F.3d 986, 990 (11th Cir. 2015). However, in the
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same case, the court held that Johnson does not apply retroactively to cases on
collateral review. Thus, Knight cannot rely on Johnson pursuant to 28 U.S.C. §
2255(f)(3). The Eleventh Circuit’s more recent opinion in Mays v. United States,
No. 14-13477, 2016 WL 1211420 (11th Cir. March 29, 2016), does not change the
analysis. There, the court held that Johnson does apply retroactively to cases on
collateral review when the petitioner is relying on Johnson in his first habeas
petition. Id. at *6. The court expressly distinguished Rivero, where the petitioner
was applying for a second or successive petition, like Knight is here. Id.
Even if this Court had jurisdiction over this motion and this was Knight’s
first § 2255 motion, which would presumably mean that Johnson applied
retroactively, see Mays, supra, the motion would still be due to be denied on its
merits because Johnson has no applicability to the facts of this case.
Under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
defendants receive enhanced sentencing if they are convicted under 18 U.S.C. §
922(g) and have three prior convictions that are violent felonies or serious drug
offenses. Specifically, the ACCA provides:
In the case of a person who violates section 922(g) of this title
and has three previous convictions by any court referred to in section
922(g)(1) of this title for a violent felony or a serious drug offense, or
both, committed on occasions different from one another, such person
shall be. . . imprisoned not less than fifteen years. . .

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18 U.S.C. § 924(e)(1). The ACCA further defines the term “violent felony,” as:
. . . any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or carrying of
a firearm, knife, or destructive device that would be punishable by
imprisonment for such term if committed by an adult, that—
(i)

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

(ii)

is burglary, arson, or extortion, involves use of explosives,
or otherwise involves conduct that presents a serious
potential risk of physical injury to another. . .

Id. § 924(e)(2)(b)(i)-(ii). Thus, this section of the ACCA has three clauses: the
“elements clause” (“has an element the use, attempted use, or threatened use of
physical force against the person of another,” see id. § 924(e)(2)(b)(i)); the
“enumerated offenses clause” (“is burglary, arson, or extortion, involves use of
explosives . . .” see id. § 924(e)(2)(b)(ii)); and the “residual clause” (“. . . or
otherwise involves conduct that presents a serious potential risk of physical injury
to another” see id.).
In Johnson, one of the defendant’s qualifying prior convictions for ACCA
sentencing enhancement purposes was for the possession of a sawed-off shotgun
that had a barrel shorter than allowed by law. 135 S. Ct. at 2556. The United States
argued that the conviction qualified because it fell under the residual clause of the

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ACCA’s definition of violent felony. Id. The Supreme Court found the language of
the ACCA’s residual clause unconstitutionally vague. Id. at 2563.
Knight’s Presentence Investigation Report (“PSR”) recommended that his
sentence on the § 922(g) conviction be enhanced under the ACCA. (Doc. 40.) The
PSR counted the following prior Alabama convictions as ACCA predicates:
youthful offender (assault second degree) (CC96-5283 in Jefferson County Circuit
Court), assault second degree (DC02-634 in Jefferson County District Court), and
assault second degree (DC02-1018 in Jefferson County District Court). (Id. at 914.) Each of these convictions stemmed from situations where Knight used a
firearm to cause physical injury to another individual or individuals. The second
conviction involved a “drive-by shooting” where Knight fired six to seven shots
into a vehicle, striking an individual multiple times. The third conviction was
originally charged as attempted murder and involved Knight “pistol whipping” an
individual nearly to death. Each of these prior convictions constituted violent
felony offenses supporting the application of the ACCA’s enhanced penalties
because they had “an element the use, attempted use, or threatened use of physical
force against the person of another.” (See id.) There was no reliance on the
ACCA’s residual clause in applying the enhancement. Knight filed no objections to
the PSR, and never objected to his previous assault in the second degree

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convictions being considered crimes of violence or violent felonies for the purpose
of his sentencing. See United States v. Peloso, 824 F.2d 914, 915 (11th Cir. 1987)
(when a defendant has been provided with the opportunity to review his PSR and
to be heard at the sentencing hearing, his failure to raise a challenge to the PSR at
sentencing will preclude him from raising the challenge in a § 2255 motion). These
three convictions were for violating Ala. Code § 13A-21(a)(1)-(6), which defines
“assault in the second degree” as follows:
(a)

A person commits the crime of assault in the second degree if
the person does any of the following:
(1)

With intent to cause serious physical injury to another
person, he or she causes serious physical injury to any
person.

(2)

With intent to cause physical injury to another person, he
or she causes physical injury to any person by means of a
deadly weapon or a dangerous instrument.

(3)

He or she recklessly causes serious physical injury to
another person by means of a deadly weapon or a
dangerous instrument.

(4)

With intent to prevent a peace officer, as defined in
Section 36-21-60, or emergency medical personnel or a
firefighter from performing a lawful duty, he or she
intends to cause physical injury and he or she causes
physical injury to any person.

(5)

With intent to cause physical injury to a teacher or to an
employee of a public educational institution during or as a

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result of the performance of his or her duty, he or she
causes physical injury to any person.
(6)

For a purpose other than lawful medical or therapeutic
treatment, he or she intentionally causes stupor,
unconsciousness, or other physical or mental impairment
or injury to another person by administering to him or
her, without his or her consent, a drug, substance or
preparation capable of producing the intended harm.

Ala. Code § 13A-21(a)(1)-(6). These convictions clearly meet the elements of the
ACCA definition of violent felony pursuant to the ACCA’s elements clause. In
other words, Johnson’s invalidation of the residual clause notwithstanding, each of
these convictions qualify for § 924(e) treatment due to their falling under the
elements clause of the ACCA.
IV. Conclusion
For the foregoing reasons, Knight’s § 2255 motion is due to be denied.
Additionally, this Court may issue a certificate of appealability “only if the
applicant has a made a substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). To make such a showing, a “petitioner must demonstrate
that reasonable jurist would find the district court’s assessment of the
constitutional claims debatable and wrong,” Slack v. McDaniel, 529 U.S. 473, 484
(2000), or that “the issues presented were adequate to deserve encouragement to
proceed further.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal

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quotations omitted). This Court finds that Knight’s claims do not satisfy either
standard. Accordingly, insofar as an application for a certificate of appealability is
implicit in the defendant’s motion, it is due to be denied.
A separate closing order will be entered.
DONE and ORDERED on April 7, 2016.

_____________________________
L. Scott Coogler
United States District Judge
160704

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