Jackson v. United States of America

Filing 2

ORDER denying 1 Motion to vacate/set aside/correct sentence (2255). The Clerk is directed to enter judgment against Petitioner, terminate any pending motions as moot, and close this case. The Clerk is also directed to terminate from pending st atus the motion to vacate found at Doc. 58, in the underlying criminal case, case no. 8:15-cr-57-T-30AAS. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 8/11/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

DWAYNE JACKSON,
Petitioner,
v.

Case No: 8:16-cv-1984-T-30AAS
Crim. Case. No. 8:15-cr-57-T-30AAS

UNITED STATES OF AMERICA,
Respondent.
________________________________/

ORDER
THIS CAUSE comes before the Court upon Petitioner Dwayne Jackson’s pro se
Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc.
1). Under Rule 4(b) of the Rules Governing Section 2255 Proceedings, the Court must
undertake a preliminary review of the motion. “[I]f it plainly appears from the motion, any
attached exhibits, and the record of prior proceedings that the moving party is not entitled
to relief,” the Court must summarily dismiss the motion. Rule 4(b) of the Rules Governing
Section 2255 Proceedings; cf. McFarland v. Scott, 512 U.S. 849, 856 (1994); Borden v.
Allen, 646 F.3d 785, 810 (11th Cir. 2011) (noting that Rule 4 permits a court to act sua
sponte). After carefully examining the motion, the Court concludes that Petitioner’s
motion, on its face, fails to establish a claim under § 2255. Consequently, the motion
should be summarily denied.

Petitioner filed a timely § 2255 petition on July 8, 2016, raising one ground for
relief. (CV Doc. 1). Petitioner asserts that in light of Johnson v. United States, 135 S. Ct.
2551 (2015), declaring the residual clause of the Armed Career Criminal Act (“ACCA”)
unconstitutionally vague, his sentence under 18 U.S.C. § 924(c) should be vacated.
Namely, Petitioner asserts that because § 924(c), prohibiting possession of a firearm in
furtherance of a crime of violence, contains a clause similar to the ACCA’s residual clause,
his sentence does not pass constitutional muster. This claim is without merit.
DISCUSSION
On July 21, 2015, pursuant to a written plea agreement, Petitioner pled guilty to
seven counts of commercial robbery, in violation of 18 U.S.C. § 1951(a), and one count of
possession of a firearm in furtherance of a crime of violence, in violation of
§ 924(c)(1)(A)(ii). (CR Docs. 33, 40, 43). On November 4, 2015, Petitioner was sentenced
to 144 months’ imprisonment, comprising 60 months on the commercial robbery counts,
with the sentences on those counts to run concurrently, and 84 months on the § 924(c)
count, to run consecutive to the sentences imposed on the commercial robbery counts. (CR
Doc. 51).
Under § 924(c), it is a crime to use or carry a firearm during and in relation to, or to
possess a firearm in furtherance of, a “crime of violence.” Section 924(c) defines a crime
of violence as a felony:
(A) [that] has as an element the use, attempted use, or threatened use of
physical force against the person or property of another, or

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(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.
§924(c)(3). Subsection (A) is generally referred to as the elements clause and subsection
(B) as the residual clause. 1 The crime of violence supporting Petitioner’s sentence under
§ 924(c) is commercial robbery. Petitioner asserts that commercial robbery is not a crime
of violence under either the elements clause, § 924(c)(3)(A), or the residual clause,
§ 924(c)(3)(B).
As a preliminary matter, it is not clear that Johnson applies to the residual clause of
§ 924(c). See In re Pinder, No. 16-12084-J, 2016 WL 3081954, at *2, 4 (11th Cir. June 1,
2016) (“[T]he law is unsettled on whether the rule announced in Johnson invalidates [a]
sentence [under § 924(c)].”).

Nevertheless, the Court need not address Johnson’s

applicability to § 924(c) because even if Johnson applied, Petitioner would not be entitled
to relief.
A conviction under § 1951 defines the crime of robbery as “the unlawful taking or
obtaining of personal property from the person or in the presence of another, against his
will, by means of actual or threatened force, or violence, or fear of injury, immediate or
future, to his person or property.” § 1951(b)(1). Petitioner’s robbery conviction has as an
element “the use, attempted use, or threatened use of physical force against the person or
property of another.” Therefore, Petitioner’s robbery conviction qualifies as a crime of
violence under the elements clause of § 924(c), not the residual clause. Cf. In re Fleur,

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Section 924(c)(3)(B) is similar, although not identical, to the ACCA’s residual clause.

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No. 16-12299-J, 2016 WL 3190539, at *4 (11th Cir. June 8, 2016) (concluding that a
robbery offense under § 1951(a) met the elements clause of the ACCA and foreclosed relief
under Johnson). Petitioner would not be entitled to relief under Johnson.
CONCLUSION
Because Petitioner is not entitled to relief under Johnson, his motion should be
denied.
Accordingly, it is therefore ORDERED AND ADJUDGED that:
1.

Petitioner Dwayne Jackson’s Motion to Vacate, Set Aside, or Correct

Sentence Pursuant to 28 U.S.C. § 2255 (CV Doc. 1) is DENIED.
2.

The Clerk is directed to enter judgment against Petitioner, terminate any

pending motions as moot, and close this case.
3.

The Clerk is also directed to terminate from pending status the motion to

vacate found at Doc. 58, in the underlying criminal case, case no. 8:15-cr-57-T-30AAS.
CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district
court 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, Petitioner “must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
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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.
DONE AND ORDERED at Tampa, Florida on this 11th day of August, 2016.

Copies furnished to:
Counsel/Parties of Record

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