Allen v. United States of America
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/3/2016. (JLC)
2016 Aug-03 PM 03:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAYME D. ALLEN,
UNITED STATES OF AMERICA,
Case No.: 2:16-cv-8097-VEH
Jayme D. Allen, through the Federal Public Defender for the Northern District
of Alabama, hereinafter referred to as the Petitioner, asks this court to vacate the
sentence imposed upon him on September 19, 2002, in case 3:02-cr-135-VEH-SGC-1.1
(Docs. 1, 5). This is Petitioner’s first petition pursuant to 28 U.S.C. § 2255. It was filed
on June 24, 2016, subsequent to the Eleventh Circuit’s denial of his direct appeal.
(Docket entry #84 dated 8/28/2003 in Case 3:02-cr-135-1-VEH-SGC (no document
filed in)); 77 F. App'x 508 (11th Cir. 2003) (Table)). The Government has filed a
Response (doc. 5). The matter accordingly is ripe for disposition.2
At the time of sentencing, the associated criminal case was assigned to a different judge of
this court. After that judge retired, the criminal case was reassigned to the undersigned. (See docket
entry dated June 24, 2016 in 3:02-cr-135-1-VEH-SGC).
The court finds that there is no need for an evidentiary hearing.
BACKGROUND AND PROCEDURAL HISTORY3
Petitioner pleaded guilty to one count of armed bank robbery under an
aiding-and-abetting theory, in violation of 18 U.S.C. §§ 2113(a) and (d), and 2 (Count
One); two counts of armed bank robbery under a principal-liability theory (Counts
Three and Five); and two counts of brandishing a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Counts Two and Four,
relying on Counts One and Three respectively). (Cr. Doc. 68 at 1). He was sentenced
to concurrent terms of 110 months of imprisonment for the armed bank robbery
offenses, a consecutive term of 84 months of imprisonment for Count Two, and a
further consecutive term of 300 months for Count Four. Id. at 2.
The 84-month consecutive sentence for Count Two was required under 18
U.S.C. § 924(c)(1)(A)(ii), and the 300-month consecutive sentence for Count Four was
required under 18 U.S.C. § 924(c)(1)(C)(i). Both of these provisions increase the
statutory imprisonment ranges for defendants who use firearms during and in relation
to a “crime of violence,” which means a felony offense 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
All references in this section are to documents filed in the companion criminal case, U.S. v.
Jayme D. Allen, 3:02-cr-135-VEH-SGC-1 (N.D. Ala.).
committing the offense.
18 U.S.C. § 924(c)(3).
This court entered judgment on September 19, 2002. (Cr. Doc. 68 at 1).
Petitioner appealed his convictions and sentences, and the Eleventh Circuit affirmed the
district court’s judgment on July 28, 2003. United States v. Allen, 77 F. App’x 508
(11th Cir. 2003) (Table). He filed his Section 2255 petition on June 24, 2016. (Doc.
II. THE PARTIES' POSITIONS
Petitioner asserts that he is entitled to have his sentence vacated (and that his
petition is timely under 28 U.S.C. § 2255(f)(3)) because of the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Specifically, he argues
that his sentence is due to be vacated because, "[i]n light of Johnson .... a bank robbery
can no longer qualify as a 'crime of violence ' for purposes of 18 U.S.C. § 924(c)".
(Doc. 1 at 2). His argument is
The § 924(c) residual clause is materially indistinguishable from the
Armed Career Criminal Act (ACCA) residual clause ... that the Supreme
Court struck down in Johnson as void for vagueness. It follows that the
§ 924(c) residual clause is likewise unconstitutionally vague. Hence, a
bank robbery offense cannot qualify as a "crime of violence" under the §
924(c) residual clause.
The Government responds that the Petition is barred by the one-year statute of
limitations applicable to relief sought under 28 U.S.C. § 2255; it is procedurally
defaulted; and it is wrong on the merits. (Doc. 5). For reasons of judicial efficiency, the
undersigned will address the issue of procedural default first, as procedural default
precludes a merits analysis as well as the Government's statute of limitations
argument—which depends upon the court's agreement with the merits argument.
I. The Petitioner's Claim Is Procedurally Defaulted
A defendant generally must advance an available challenge to a criminal
conviction or sentence on direct appeal or else the defendant is barred from presenting
that claim in a § 2255 proceeding. McCoy v. United States, 266 F.3d 1245, 1258 (11th
Cir. 2001); Jones v. United States, 153 F.3d 1305, 1307 (11th Cir. 1998); Mills v.
United States, 36 F.3d 1052, 1055 (11th Cir. 1994); Greene v. United States, 880 F.2d
1299, 1305 (11th Cir. 1989). This procedural bar applies with equal force to statutory
and constitutional claims. See Reed v. Farley, 512 U.S. 339, 354, 114 S. Ct. 2291,
There are two routes by which a movant may be excused from this procedural
foreclosure. First, the movant may show "cause" for the waiver and "actual prejudice"
resulting from the alleged violation. See Wainwright v. Sykes, 433 U.S. 72, 87, 97 S.
Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977). Second, the movant may show that the
alleged error "has probably resulted in the conviction of one who is actually innocent."
Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611, 140 L. Ed. 2d 828
Here, the Petitioner asserts a constitutional error. However, he shows no "cause"
for failing to present this issue in his direct appeal. The fact that Petitioner's argument
was foreclosed by existing circuit precedent at the time of his direct appeal does not
constitute "cause."4 McCoy v. U.S., 266 F.3d at 1259 ("perceived futility does not
constitute cause to excuse a procedural default."). As for the actual innocence
exception, the Petitioner here merely argues a sentencing error, not that he is actually
innocent. Cf. Bousley, 532 U.S. at 623, 118 S. Ct. at 1611 (emphasizing that "'actual
innocence' means factual innocence, not mere legal insufficiency"). Accordingly, his
claim remains procedurally defaulted.5
II. Certificate of Appealability
A prisoner seeking a motion to vacate has no absolute entitlement to appeal a
district court's denial of his petition. See 28 U.S.C. § 2253(c)(1). Rather, a district court
Petitioner does not asset that his appellate counsel was constitutionally ineffective.
As explained in the Government's opposition, even if the Petitioner's claim were not
procedurally defaulted, it has no merit and thus is barred by the statute of limitations. See doc. 5,
must first issue a certificate of appealability (COA). Id. “A [COA] may issue. . . only
if the applicant has made a substantial showing of the denial of a constitutional right.”
Id. at § 2253(c)(2). To make such a showing, defendant “must demonstrate that
reasonable jurists would find the district court's assessment of the constitutional claims
debatable or wrong,” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting 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,
335-36 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)). Petitioner
has not made the requisite showing in these circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is
not entitled to appeal in forma pauperis.
Petitioner's sentencing error claim is procedurally defaulted. He has not argued,
much less shown, any cause for such default, nor that he is actually innocent of the
crimes of conviction. Accordingly, his Petition is due to be DISMISSED WITH
PREJUDICE. Additionally, he is not entitled to a Certificate of Appealability and any
motion for leave to appeal in forma pauperis is due to be DENIED.
DONE this the 3rd day of August, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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