Claiborne v. United States of America

Filing 14

ORDER denying 1 Motion Under 28 U.S.C. 2255 to Vacate, Set Aside, or Correct Sentence. The Clerk shall enter judgment in favor of the United States and against Petitioner, and close the file. Signed by Judge Brian J. Davis on 5/16/2019. (JHC)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
JACKSONVILLE DIVISION

ROBERT KEITH CLAIBORNE,
Petitioner,
vs.

Case No.:

3:16-cv-744-J-39MCR
3:14-cr-22-J-39MCR

UNITED STATES OF AMERICA,
Respondent.

ORDER
This case is before the Court on Petitioner Robert Keith Claiborne’s Motion Under
28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1, § 2255 Motion). 1
Claiborne pled guilty to two counts of unarmed bank robbery, in violation of 18 U.S.C. §
2113(a), and the Court sentenced him to concurrent terms of 188 months in prison as to
each count. In the § 2255 Motion, Claiborne raises a single claim: that his sentence
violates the United States Supreme Court’s decision in Johnson v. United States, 135 S.
Ct. 2551 (2015). The United States has responded (Civ. Doc. 7, Response), and Brooks
filed a supplemental brief in reply (Civ. Doc. 13, Reply). Thus, the matter is ripe for review.
Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255
Proceedings 2, the Court has determined that a hearing is not necessary to resolve the
merits of this action. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an

Citations to the record in the underlying criminal case, United States v. Robert Keith
Claiborne, No. 3:14-cr-22-J-39MCR, will be denoted as “Crim. Doc. __.” Citations to the record in
the civil 28 U.S.C. § 2255 case, No. 3:16-cv-744-J-39MCR, will be denoted as “Civ. Doc. __.”
2
Rule 8(a) of the Rules Governing Section 2255 Proceedings requires the Court to review
the record, including any transcripts and submitted materials, to determine whether an evidentiary
hearing is warranted before resolving a § 2255 motion.
1

1

evidentiary hearing on a § 2255 motion is not required when the petitioner asserts
allegations that are affirmatively contradicted by the record or patently frivolous, or if in
assuming the facts that he alleges are true, he still would not be entitled to any relief). For
the reasons set forth below, Claiborne’s § 2255 Motion is due to be denied.
I.

Background
On March 19, 2014, a grand jury returned a superseding indictment charging

Claiborne with seven counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a). 3
(Crim. Doc. 18, Superseding Indictment). Claiborne pled guilty to two of the counts (Counts
Three and Seven) under a written plea agreement. (Crim. Doc. 34, Plea Agreement). In
exchange for Claiborne’s guilty plea, the United States agreed to dismiss the remaining
charges. Id. at 3.
Before the sentencing hearing, the Probation Office determined that Claiborne’s
total offense level was 21 and his Criminal History Category was IV. (Crim. Doc. 42,
Presentence Investigation Report [PSR] at ¶¶ 58, 75). Claiborne’s Criminal History
Category was driven by the fact that in 1997, he was convicted of six counts of bank
robbery in the United States District Court for the Eastern District of Louisiana, and that he
committed the instant bank robberies while still under supervised release for the prior bank

3

Section 2113(a) provides, as relevant here, that
[w]hoever, by force and violence, or by intimidation, takes, or attempts to take, from
the person or presence of another … any property or money or any other thing of
value belonging to, or in the care, custody, control, management, or possession of,
any bank, credit union, or any savings and loan association … [s]hall be fined under
this title or imprisoned not more than twenty years, or both.

2

robbery convictions. Id. at ¶¶ 72-75. 4 Neither party objected to the Sentencing Guidelines
calculation (Crim. Doc. 55, Sentencing Tr. at 3-4), which yielded an advisory sentencing
range of 57 to 71 months in prison. However, the United States moved for an upward
departure, arguing that the Guidelines calculation underrepresented the severity of
Claiborne’s conduct and his criminal history. (Crim. Doc. 39, Motion for Upward
Departure). The United States requested that the Court sentence Claiborne to two
consecutive terms of 188 months in prison. Claiborne’s federal public defender opposed
the upward departure and suggested that a sentence within the Guidelines range was
adequate. (Crim. Doc. 43, Sentencing Memorandum).
At the sentencing hearing, the Court heard from both parties and considered their
arguments. Ultimately, the Court explained that the seriousness of Claiborne’s offenses,
Claiborne’s criminal history, and the need to deter future criminal conduct warranted an
upward variance to a term of 188 months in prison. See Sentencing Tr. at 38-49. However,
the Court declined the government’s invitation to run the sentences consecutively, finding
that such a sentence would be too extreme. Id. at 39. Thus, the Court imposed concurrent
terms of 188 months in prison as to Counts Three and Seven, followed by a three-year
term of supervised release. (Crim. Doc. 45, Judgment).
Claiborne appealed his sentence to the Eleventh Circuit Court of Appeals, arguing
that the Court failed to set forth facts justifying the upward variance in its written Statement
of Reasons. United States v. Claiborne, 626 F. App’x 848, 849 (11th Cir. 2015). The
Eleventh Circuit rejected the argument, finding that the omission was a harmless clerical

Claiborne was sentenced to a term of 188 months in prison for the convictions in the
Eastern District of Louisiana. PSR at ¶ 72. The Fifth Circuit Court of Appeals affirmed Claiborne’s
prior convictions and sentence in United States v. Claiborne, 132 F.3d 253 (5th Cir. 1998).
4

3

error and ruled that this Court “orally provided ample reasons for its decision.” Id. at 851.
Thus, the court affirmed Claiborne’s conviction and sentence. Claiborne did not petition
the Supreme Court for certiorari review. He filed the instant § 2255 motion less than a year
later.
II.

Discussion
Under Title 28, United States Code, Section 2255, a person in federal custody may

move to vacate, set aside, or correct his sentence. Section 2255 permits such collateral
challenges on four grounds: (1) the imposed sentence was in violation of the Constitution
or laws of the United States; (2) the court did not have jurisdiction to impose the sentence;
(3) the imposed sentence exceeded the maximum authorized by law; or (4) the imposed
sentence is otherwise subject to collateral attack. 28 U.S.C §2255(a) (2008). Only
jurisdictional claims, constitutional claims, and claims of error that are so fundamentally
defective as to cause a complete miscarriage of justice will warrant relief through collateral
attack. United States v. Addonizio, 442 U.S. 178, 184-86 (1979); Spencer v. United States,
773 F.3d 1132, 1138 (11th Cir. 2014) (en banc).
Claiborne argues that his sentence violates the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551. In Johnson, the Supreme Court struck down a
provision of the Armed Career Criminal Act (ACCA) called the “residual clause.” See 18
U.S.C. § 924(e)(2)(B)(ii). As part of a recidivist sentencing scheme, the residual clause
helped define when a prior conviction qualifies as a “violent felony,” thereby exposing a
defendant to an increased mandatory minimum and maximum sentence. 5 The Supreme

Under the ACCA, if a person is convicted of being a felon in possession of a firearm, and
he or she has three or more prior convictions for a “violent felony” or a “serious drug offense,” or
5

4

Court struck down the residual clause because it was unconstitutionally vague and invited
arbitrary enforcement. Johnson, 135 S. Ct. at 2557, 2563. However, the Supreme Court
confined its holding to the residual clause and did not call into question any other part of
the ACCA. See id. at 2563. Johnson said nothing about 18 U.S.C. § 2113(a), the bank
robbery statute under which Claiborne was convicted and sentenced, which does not
contain anything like the ACCA’s residual clause. In Sessions v. Dimaya, the Supreme
Court extended Johnson to strike down the residual clause in 18 U.S.C. § 16(b) as it
applies in immigration cases, but the Supreme Court still said nothing implicating the bank
robbery statute. 138 S. Ct. 1204, 1216 (2018). In Beckles v. United States, the Supreme
Court held that the void-for-vagueness doctrine does not apply to the advisory Sentencing
Guidelines, such that Johnson does not invalidate the residual clause of the Guidelines’
career offender provision, U.S.S.G. § 4B1.2(a)(2) (2015). 6 137 S. Ct. 886, 892, 894 (2017).
Finally, in United States v. Davis, No. 18–431, the Supreme Court will decide the fate of
18 U.S.C. § 924(c)(3)’s residual clause in light of Johnson and Dimaya, but Davis does not
implicate the constitutionality of the bank robbery statute either.
Claiborne was convicted and sentenced exclusively for unarmed bank robbery, in
violation of 18 U.S.C. § 2113(a). See Judgment. Claiborne was neither convicted nor
sentenced based on the ACCA, § 924(c), or § 16(b). Nor was Claiborne sentenced under
the Guidelines’ career offender provision (even though Johnson would not affect the
validity of the career offender enhancement in any event). As such, Johnson and its
progeny have no bearing on the legality of Claiborne’s conviction and sentence for

both, each committed on different occasions, that person’s sentencing range is increased from
zero to ten years in prison to 15 years to life. 18 U.S.C. § 924(e)(1).
6
In 2016, the United States Sentencing Commission replaced § 4B1.2(a)(2)’s residual
clause with an expanded enumerated crimes clause.

5

unarmed bank robbery.
Nor has Claiborne pointed to any authority holding that § 2113(a) is
unconstitutionally vague. Indeed, this Court has found no such authority. Moreover, if
Claiborne wished to challenge § 2113(a) as unconstitutionally vague, he could and should
have done so on direct appeal. Because Claiborne did not raise a vagueness challenge to
§ 2113(a) on direct appeal, the claim is procedurally defaulted and he may not use 28
U.S.C. § 2255 as a vehicle to challenge the constitutionality of the bank robbery statute for
the first time. McKay v. United States, 657 F.3d 1190, 1196 (11th Cir. 2011) (“Under the
procedural default rule, ‘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.’”) (quoting Lynn v. United States, 365 F.3d
1225, 1234 (11th Cir. 2004)). 7 Accordingly, Claiborne’s challenge to the legality of his
conviction and sentence in this Court is due to be denied.
Throughout portions of his § 2255 Motion, Claiborne also seems to take issue with
the sentence imposed in the previous 1997 federal criminal case out of the Eastern District
of Louisiana. In that case, the district court did impose the Guidelines’ career offender
enhancement, and the Fifth Circuit affirmed the sentence on direct appeal. See Claiborne,
132 F.3d at 254-56. To the extent Claiborne challenges his previous sentence, this Court
lacks authority to grant relief under 28 U.S.C. § 2255 because this Court did not impose
that sentence. To obtain § 2255 relief, Claiborne would have to file a motion in the court
that imposed the allegedly unlawful sentence. 28 U.S.C. § 2255(a) (“A prisoner in custody
under sentence of a court established by Act of Congress claiming the right to be released

Moreover, Claiborne does not advance any reason for avoiding the procedural default, such
as actual innocence or cause-and-prejudice.
7

6

upon the ground that the sentence was imposed in violation of the Constitution or laws of
the United States … may move the court which imposed the sentence to vacate, set aside
or correct the sentence) (emphasis added). In any event, the Sentencing Guidelines’
career offender provision is not subject to a void-for-vagueness challenge, regardless of
whether the sentence was imposed under post-Booker advisory guidelines or pre-Booker
mandatory guidelines. 8 Beckles, 137 S. Ct. at 892, 894 (advisory sentencing guidelines
are not subject to void-for-vagueness challenges); Lester v. United States, 921 F.3d 1306
(11th Cir. 2019) (Mem.) (Pryor, W., J., respecting denial of rehearing en banc) (explaining
why mandatory sentencing guidelines are not subject to void for vagueness challenges);
In re Griffin, 823 F.3d 1350, 1354 (11th Cir. 2016) (“The Guidelines—whether mandatory
or advisory—cannot be unconstitutionally vague because they do not establish the
illegality of any conduct and are designed to assist and limit the discretion of the sentencing
judge.”) (citation omitted). As such, the Court cannot grant relief from Claiborne’s previous
sentence imposed in the Eastern District of Louisiana.
III.

Conclusion
Having considered the parties’ filings and arguments, and finding that Claiborne’s

§ 2255 Motion lacks merit, it is hereby ORDERED:
1. Petitioner Robert Keith Claiborne’s Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Civ. Doc. 1) is DENIED.
2. The Clerk should enter judgment in favor of the United States and against
Claiborne, and close the file.

United States v. Booker, 543 U.S. 220, 258-60 (2005) (to avoid Sixth Amendment
complications with mandatory sentencing guidelines, the United States Sentencing Guidelines
must be treated as advisory).
8

7

3. If Claiborne appeals the denial of his motion, the Court denies a certificate of
appealability (COA). 9 Because this Court has determined that a COA is not
warranted, the Clerk shall terminate from the pending motions report any motion to
proceed on appeal as a pauper that may be filed in this case. Such termination shall
serve as a denial of the motion.
DONE AND ORDERED at Jacksonville, Florida this 16th day of May, 2019.

lc 19
Copies:
Counsel of record
Petitioner

This Court should issue a COA only if a petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make this substantial showing,
Petitioner “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, 33536 (2003) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). Upon due consideration, this
Court finds that a COA is not warranted.
9

8