Cooks v. United States of America

Filing 24

ORDER adopting the 18 Magistrate Judge's Report and Recommendation as the opinion of the Court; granting Petitioner's 22 Motion to Amend; denying Petitioner's 12 Motion for an Evidentiary Hearing; denying the motion and amended motion filed pursuant to 28 U.S.C. § 2255; closing this civil action; directing the Clerk to enter final judgment in favor of the Respondent; denying a Certificate of Appealability in this case; and determining that Petitioner is not entitled to appeal in forma pauperis. Signed by Judge J. Randal Hall on 11/13/2015. (jah)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

TYRON LARON COOKS,
Petitioner,
CV 114-195

v.

(Formerly CR 112-254)
UNITED STATES OF AMERICA,

Respondent.

ORDER

After a careful, de novo review of the file, the Court ADOPTS the Magistrate Judge's

Report and Recommendation, to which no objections have been filed. In lieu of objections,
Petitioner has filed a motion to amend, wishing to add a claim in light of Johnson v. United
States, 135 S. Ct. 2551 (2015). (Doc. no. 22.) In his original motion, Petitioner argued that

his attorney was ineffective in failing to argue that his robbery conviction could not qualify
as a violent felony under the Armed Career Criminal Act ("ACCA"). (Doc. no. 1.) In the
adopted Report and Recommendation, the Magistrate Jude correctly concluded that there was
no ineffective assistance because controlling law in the Eleventh Circuit at the time of

sentencing, prior to Johnson, foreclosed such a challenge. Petitioner now wishes to add a
direct attack under Johnson, claiming that his robbery conviction qualified as an ACCA

predicate offense only under the unconstitutionally vague residual clause of the ACCA, such
that it was error to find that he qualified for sentence enhancement as an armed career
criminal. (See doc no. 22.)

The Federal Rules of Civil Procedure are applicable to proceedings for habeas corpus
"to the extent that the practice in those proceedings: (A) is not specified in a federal statute,
the Rules Governing 2254 Cases, or the Rules Governing Section 2255 Cases; and (B) has
previously conformed to the practice in civil actions." Fed. R. Civ. P. 81(a)(4). Similarly,

Rule 12 of the Rules Governing § 2255 Proceedings provides that "[t]he Federal Rules of
Civil Procedure ..., to the extent that they are not inconsistent with any statutory provisions
or these rules, may be applied to a proceeding under these rules." Furthermore, both the
Supreme Court and the Eleventh Circuit have held Federal Rule of Civil Procedure 15

applicable to requests to amend § 2255 motions. See Mayle v. Felix, 545 U.S. 644, 654
(2005); Pruitt v. United States, 274 F.3d 1315, 1317-19 (11th Cir. 2001). Thus, the Court

will apply a traditional Rule 15 analysis to Petitioner's motion to amend.
Because Petitioner did not amend as a matter of course under Fed. R. Civ. P. 15(a)(1),

Petitioner can only amend with leave of court. Fed. R. Civ. P. 15(a)(1). Fed. R. Civ. P.
15(a)(2) provides that "a party may amend its pleading only with the opposing party's
written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). While the general rule is that

courts should grant leave to amend freely, courts have the discretion to deny leave "in the
exercise of its inherent power to manage the conduct of litigation before it." Saewitz v.
Lexington Ins. Co., 133 F. App'x 695, 699 (11th Cir. 2005); see also Foman v. Davis, 371
U.S. 178, 182 (1962); Reese v. Herbert, 527 F.3d 1253, 1263 (11th Cir. 2008).

"In making this determination, a court should consider whether there has been undue
delay in filing, bad faith or dilatory motives, prejudice to the opposing parties, and the futility
of the amendment." Saewitz, 133 F. App'x at 699 (quoting Foman, 371 U.S. at 182). A
motion to amend that seeks to add claims is properly denied as futile when the claims are

without merit or cannot form the basis for cognizable relief. See Coventry First, LLC v.

McCarthy, 605 F.3d 865, 870 (11th Cir. 2010) (ruling that futility includes proposed
amendments that fail as a matter of law).
The Court finds it appropriate to allow Petitioner to add his Johnson claim and thus
GRANTS Petitioner's motion. (Doc. no. 22.) Because both parties have fully briefed the
ACCA issue, the Court will now proceed with a ruling on the merits of the amended § 2255
motion. As explained below, dismissal of Petitioner's new claim is warranted because his

prior robbery conviction clearly falls under the "elements" clause of the ACCA, rendering
the residual clause and Johnson irrelevant.

"To determine whether a crime constitutes a violent felony, a court must follow a

categorical approach in which it looks 'only to the statutory definitions of the prior offenses,
and not to the particular facts underlying those convictions.'" United States v. Brown, 379 F.

App'x 872, 874 (11th Cir. 2010) (quoting Tavlor v. United States, 495 U.S. 575, 600 (1990)).
However, to determine the statutory basis for conviction, a court may consult certain Shepard

documents such as charging documents, plea agreements, transcripts of plea colloquies, jury
instructions, and verdict forms. Johnson v. United States, 559 U.S. at 144. Undisputed facts

contained in a PSI may also be used in determining the statutory basis for conviction. United
States v. Ramirez-Flores, 743 F.3d 816, 820 (11th Cir. 2014).

The Shepard documents here show that Petitioner was charged with armed robbery

and subsequently pleaded guilty to the lesser-included offense of robbery by intimidation.
(PSI t 28, Doc. no. 5-2, pp. 2, 5.) Further, the uncontested PSI states that the offense
occurred when Petitioner brandished a handgun to force the victim to relinquish possession
of a briefcase. (PSI ^ 28.)

Excluding the now invalid residual clause, any crime punishable by more than one

year in prison is a violent felony if it falls within one of two categories under the ACCA.

First, the "elements clause" of the ACCA defines a qualifying predicate "violent felony" as
any crime that "has as an element the use, attempted use, or threatened use of physical force
against the person of another . . . ." 18 U.S.C. § 924(e)(2)(B). Second, the ACCA also
defines a violent felony as burglary, arson, extortion, or those involving the use of

explosives. Id. Here, the pivotal question is whether robbery by intimidation under Georgia
law necessarily contains as an element the "threatened use of physical force against the
person of another." Id.

The Georgia armed robbery statute specifies that the lesser-included offense of armed

robbery is robbery by intimidation. O.C.G.A. § 16-8-41(a); doc. no. 5-2, p. 5. Robbery by
intimidation occurs when "[a] person ... with the intent to commit theft ... takes property of

another from the person of another or the immediate presence of another ... by intimidation,

by the use of threat or coercion, or by placing such person in fear of immediate serious
bodily injury to himself or to another...." O.C.G.A. § 16-8-40. Construing O.C.G.A. § 168-40, the Georgia Court of Appeals has held that "[a] conviction for robbery by intimidation .

. . requires proof that the theft was attended with such circumstances of terror-such

threatening by word or gesture, as in common experience, are likely to create an

apprehension of danger, and induce a [person] to part with his property for the safety of his
person." Smith v. State, 543 S.E.2d 434,435 (Ga. Ct. App. 2000).

Thus, robbery by intimidation contains as an element a threat, implicit or overt, which

would likely create fear for the safety of the person being threatened.

Although this

definition does not include the word force, the natural corollary of an act that creates fear for
4

the safety of a person is the threatened use of physical force against that person. Indeed, the
Seventh Circuit reached this same conclusion and held that Georgia's robbery by
intimidation statute falls under the elements clause of the ACCA because it contains as an

element a threat of the use of physical force. See United States v. Thomas, 280 F.3d 1149,
1159, (7th Cir. 2002). Other circuits have held that similar robbery by intimidation statutes
fall under the elements clause. See United States v. Presley, 52 F.3d 64, 69 (4th Cir. 1995)

(holding Virginia robbery by intimidation statute involved threatened use of physical force);
United States v. Melton, 344 F.3d 1021, 1026 (9th Cir. 2003) (same); United States v.
Mitchell, 743 F.3d 1054, 1059 (6th Cir.) (holding Tennessee crime of robbery by fear fell
under elements clause because fear defined as "a fear of bodily injury and of present personal

peril from violence offered or impending.") Because Petitioner's robbery conviction clearly
qualifies as a violent felony under the elements clause, the residual clause and Johnson are
irrelevant, and Petitioner's new claim is without merit.

Petitioner also argues in his amended § 2255 motion that his two convictions for the

sale of cocaine do not qualify as separate crimes. (Doc. no. 22, pp. 3-4.) According to the
conceded facts in Petitioner's PSI, he sold cocaine on two different days, March 22, 2002

and April 3, 2002. (PSI f 26.) Under Eleventh Circuit law, these clearly count as two

separate crimes for ACCA purposes. See United States v. Patterson, 423 Fed. Appx. 921,
924 (11th Cir. 2011). Thus, this claim is also without merit

Further, a federal prisoner must obtain a certificate of appealability ("COA") before

appealing the denial of his motion to vacate. This Court "must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant." Rule 11(a) to the Rules

Governing Section 2255 Proceedings. This Court should grant a COA only if the prisoner

makes a "substantial showing ofthe denial of a constitutional right." 28 U.S.C. § 2253(c)(2).
For the reasons set forth in the Report and Recommendation, and in consideration of the
standards enunciated in Slack v. McDanieL 529 U.S. 473, 482-84 (2000), Petitioner has

failed to make the requisite showing. Accordingly, the Court DENIES a COA in this case.1
Moreover, because there are no non-frivolous issues to raise on appeal, an appeal would not
be taken in good faith. Accordingly, Petitioner is not entitled to appeal informa pauperis.
See 28 U.S.C. § 1915(a)(3).

Accordingly, the Court ADOPTS the Report and Recommendation of the Magistrate
Judge as its opinion, GRANTS Petitioner's motion to amend (doc. no. 22), DENIES

Petitioner's motion for an evidentiary hearing (doc. no. 12), and DENIES the motion and
amended motion filed pursuant to 28 U.S.C. § 2255. Upon the foregoing, the Court CLOSES
this civil action and DIRECTS the Clerk to enter final judgment in favor of Respondent.

SO ORDERED this /§3ay ofNovember, 2015, at Augusta, Georgia.

HONORABLE J. RANDAL HALI
UNITE© STATES DISTRICT JUDGE

JSOU5HERN DISTRICT OF GEORGIA

l"If the court denies a certificate, a party may not appeal the denial but may seek a
certificate from the court of appeals under Federal Rule of Appellate Procedure 22." Rule
11(a) to the Rules Governing Section 2255 Proceedings.