Hemny v. United States Of America

Filing 16

OPINION AND FINAL ORDER DENYING 1 MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. 2255. This case is CLOSED. Signed by Judge Kenneth A. Marra on 9/16/2016. (ir) NOTICE: If there are sealed documents in this case, they may be unsealed after 1 year or as directed by Court Order, unless they have been designated to be permanently sealed. See Local Rule 5.4 and Administrative Order 2014-69.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 16-80727-CIV-MARRA
(Criminal Case No. 08-80191-CR-MARRA)
JACK LEE HEMNY,
Movant
v.
UNITED STATES OF AMERICA,
Respondent.
_____________________________________/
OPINION AND FINAL ORDER
DENYING MOTION TO CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255
This matter is before the Court upon Movant Jack Lee Hemny’s Motion to Correct Sentence
Pursuant to 28 U.S.C. § 2255 (DE 1; CR-DE 175).1 For the reasons that follow, the motion is denied.
I. Background and Procedural History
On June 24, 2008, Hemny entered a guilty plea to charges of bank robbery in violation of 18
U.S.C. § 2113(a) and (d) (Count 4 of the indictment) and brandishing a firearm during and in relation
to a “crime of violence” in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Count 5 of the indictment).
(CR-DE 64; CR-DE 85.) On September 5, 2008, this Court sentenced Hemny to 57 months
imprisonment as to Count 4 and 84 months imprisonment as to Count 5, with the terms to run
consecutively for a total of 141 months imprisonment. (CR-DE 133.) The Court also sentenced
Hemny to a five-year term of supervised release after imprisonment. (CR-DE 133.)
On May 9, 2016, Hemny filed the present petition for habeas corpus relief pursuant to 28
U.S.C. § 2255 and supplemented that peition through counsel on June 24, 2016. (DE 1, CR-DE 175;
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Citations to “CR-DE” refer to entries on the criminal docket in Case No. 08-80191-CR-MARRA.
Citations to “DE” refer to entries on the civil docket in Case No. 16-81075-CIV-MARRA.

DE 10.) Hemny asserts that he is actually innocent of his conviction for brandishing a firearm during
and in relation to a “crime of violence” in violation of § 924(c)(1)(A)(ii) based on the Supreme
Court’s recent decision in Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (June 26, 2015).
(DE 1; CR-DE 175.) The Government filed a response opposing Hemny’s § 2255 petition on July
11, 2016. (DE 11.) Hemny replied on August 23, 2016 (DE 12.), and the petition is now ripe for
review.
II. Legal Standard
Section 2255 authorizes a prisoner to move a court to vacate, set aside, or correct his sentence
where “the sentence was imposed in violation of the Constitution or laws of the United States, or .
. . the court was without jurisdiction to impose such sentence, or . . . the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
The § 2255 petitioner bears the burden of showing that he should be entitled to relief, and in context
of a challenge to the vagueness of a statute’s residual clause the petitioner must show that he was
“sentenced [or convicted] using that residual clause and that the use of that clause made a difference
in the sentence [or conviction].” In re Moore, No. 16-13993-J, 2016 WL 4010433, at *4 (11th Cir.
July 27, 2016) (per curiam).2
III. Discussion
Assuming the procedural appropriateness of Hemny’s § 2255 petition, the Court considers
the merits of Hemny’s assertion that his sentence under § 924(c)(1)(A)(ii) should be vacated because
§ 924(c)’s residual clause is unconstitutionally vague for the same reasons the Supreme Court found
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As Moore involved the Armed Career Criminal Act’s residual clause it considered only the sentence
that resulted rather than both the sentence and conviction. Hemny’s petition pertains to § 924(c)’s
residual clause and thus both the sentence and underlying conviction are affected.
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§ 924(e)(2)(B)(ii) to be unconstitutionally vague in Johnson, rendering him “actually innocent” of
his § 924(c) conviction.
A. Johnson’s Applicability to Section 924(c):
In Johnson, the Supreme Court overruled its prior precedent and held that the residual clause
of the Armed Career Criminal Act of 1984 (ACCA) definition of “violent felony,” 18 U.S.C. §
924(e)(2)(B)(ii), is unconstitutionally vague. 135 S. Ct. at 2557, 2563. Less than a year later, in
Welch v. United States, the Supreme Court held that “Johnson announced a substantive rule that has
retroactive effect in cases on collateral review.” 136 S. Ct. 1257, 1268 (2016). Under the ACCA,
a defendant convicted of being a felon in possession of a firearm faces more severe punishment if
he has three or more previous convictions for a “violent felony.” 18 U.S.C. § 924(e)(1). The ACCA
defines “violent felony” to include “any crime punishable by imprisonment for a term exceeding one
year” that “(i) has as 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.” 18 U.S.C. §
924(e)(2)(B). The residual clause at issue in Johnson consists of the last 15 words of the §
924(e)(2)(B) definition. Relevantly, Johnson expressly left intact both the enumerated crimes portion
of § 924(e)(2)(B)(ii) preceding the residual clause and § 924(e)(2)(B)(I), the subsection of the
definition referred to as the elements clause and defining “violent felony” through the elements
which comprise the predicate offense.3
Hemny was not sentenced under the ACCA, but rather was convicted of a violation of 18

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Johnson, 135 S. Ct. at 2563 (“Today's decision does not call into question application of the Act to
the four enumerated offenses, or the remainder of the Act's definition of a violent felony.”)
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U.S.C. § 924(c)(1)(A)(ii). Section 924(c)(1)(A)(ii) provides a seven-year mandatory minimum
sentence for any person who“during and in relation to any crime of violence or drug trafficking crime
. . . for which the person may be prosecuted in a court of the United States, uses or carries a firearm,
or who, in furtherance of any such crime, possesses a firearm” and “the firearm is brandished.” Such
sentence shall be “in addition to the punishment provided for such crime of violence or drug
trafficking crime” and may not run concurrently with “any term of imprisonment imposed for the
crime of violence or drug trafficking crime during which the firearm was used, carried, or
possessed.” 18 U.S.C. § 924(c)(1)(A)(ii), (D)(ii). Under § 924(c), a “crime of violence” is defined
as a felony 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 committing the offense.
18 U.S.C. § 924(c)(3). As with the ACCA, § 924(c)(3) includes a clause by which a “crime of
violence” can be defined using the elements necessary to convict under the predicate offense. As
the ACCA’s elements clause was not found unconstitutionally vague in Johnson, it stands to reason
that the elements clause of § 924(c)(3)(A) is similarly intact as controlling authority on this Court.
See Johnson, 135 S. Ct. at 2563.
B. Armed Bank Robbery under Section 924(c):
Courts employ the categorical approach to determine whether a predicate conviction qualifies
as a “crime of violence” under § 924(c). United States v. McGuire, 706 F.3d 1333, 1336-37 (11th
Cir. 2013). Under the categorical approach, courts examine only the “elements of the offense” and
do not consider “the specific conduct of this particular offender.” United States v. Chitwood, 676
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F.3d 971, 976-77 (11th Cir. 2012). Where the conduct of a predicate offense “has an element the use,
attempted use, or threatened use of physical force against the person or property of another” it
constitutes a “crime of violence” under § 924(c)(3)(A). Id.
The elements of armed bank robbery, as charged in Count 4 of the indictment and to which
Hemny pled, are set forth in 18 U.S.C. § 2113(a) and (d), which provides, in relevant part:
(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the
person or presence of another, or obtains or attempts to obtain by extortion 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; or
Whoever enters or attempts to enter any bank, credit union, or any savings and loan
association, or any building used in whole or in part as a bank, credit union, or as a savings
and loan association, with intent to commit in such bank, credit union, or in such savings and
loan association, or building, or part thereof, so used, any felony affecting such bank, credit
union, or such savings and loan association and in violation of any statute of the United
States, or any larceny-Shall be fined under this title or imprisoned not more than twenty years, or both.
...
(d) Whoever, in committing, or in attempting to commit, any offense defined in subsections
(a) and (b) of this section, assaults any person, or puts in jeopardy the life of any person by
the use of a dangerous weapon or device, shall be fined under this title or imprisoned not
more than twenty-five years, or both.
Applying the categorical approach, the Eleventh Circuit has found that the commission of “an
armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d)...clearly meets the requirement
for an underlying felony offense, as set out in § 924(c)(3)(A).” In re Hines, 824 F. 3d 1334,
1336-37 (11th Cir. June 8, 2016); see also In re Sams, __ F.3d __, 2016 WL 3997213 (11th Cir.
July 26, 2016). Though this Court reviews the merits of Hemny’s § 2255 petition de novo, it
neither does so in a vacuum nor without the guidance of precedent. Accordingly, Hemny’s

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predicate conviction for armed bank robbery in violation of § 2131(a) and (d) constitutes a
“crime of violence” under the elements clause of § 924(c)(3)(A). As such, Hemny’s conviction
and sentence under § 924(c)(1)(A)(ii) did not rely on the residual clause of § 924(c)(3)(B) in
order to define “crime of violence” and Hemny’s § 2255 petition seeking to challenge his
conviction in light of Johnson must fail.
Hemny’s attempts to discount Hines, Sams, and other Eleventh Circuit decisions as “not
precedential because they arose in the procedurally unique context of adjudicating an application
for leave to file a second or successive § 2255 motion.” The Court does not find Hemny’s
argument persuasive. This Court’s de novo review is not a prescription to be unbounded by the
Eleventh Circuit’s authority. Instead, it is meant to emphasize that the district court should decide
the issues fresh relative to the Circuit Court’s prima facie determinations that are reached in
granting leave to file a second or successive motion. Jordan v. Sec'y, Dep't of Corr., 485 F.3d
1351, 1358 (11th Cir. 2007). Indeed, the Eleventh Circuit has held that its own prior-panelprecedent rule should apply to published opinions issued in the context of an application to file a
second or successive petition. In re Provenzano, 215 F.3d 1233 (11th Cir. 2014). In Provenzano,
the Eleventh Circuit held that the prior precedent rule foreclosed its ability to authorize a
petitioner to file a second or successive petition for § 2244 habeas relief on a competency-to-beexecuted claim where a prior panel had held in the course of denying authorization for a second
of successive petition that the § 2244(b) bar applied to competency-to-be-executed claims. Id.
Accordingly, Eleventh Circuit jurisprudence in the context of authorization to file second or
successive habeas petitions is binding precedent. See In re Holsey, 589 F. App'x 462, 466 (11th
Cir. 2014) (declining to “to treat prior panel decisions...issued in the context of applications to

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file second of successive petitions as having no precedential value.”). As the Eleventh Circuit has
acknowledged the binding authority of its decisions in the context of applications to file second
or successive habeas petitions, this Court is bound by the precedent of Sams and Hines and the
conclusion that armed bank robbery under 18 U.S.C. § 2113(a) and (d) is a “crime of violence,”
as defined by § 924(c)(3)(A).
IV. Conclusion
Accordingly, it is hereby ORDERED AND ADJUDGED that Movant’s petition (DE 1;
CR-DE 75) is DENIED. The Clerk shall CLOSE this case.
DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, Florida
this 16th day of September, 2016.

_____________________________________
KENNETH A. MARRA
United States District Judge

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