Witherspoon v. United States Of America

Filing 10

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DENY Witherspoon's 1 Motion to Vacate/Set Aside/Correct Sentence (2255), and DIRECT the Clerk to CLOSE this case. It is further RECOMMENDED that the Court DENY Witherspoon a Ce rtificate of Appealability and DENY Witherspoon in forma pauperis status on appeal. The Court ORDERS any party seeking to object to this Report and Recommendation to file specific written objections within fourteen (14) days of the date on which this Report and Recommendation is entered. (Objections to R&R due by 8/25/2017). ORDER directing service of the REPORT AND RECOMMENDATION of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 8/11/2017. (ca)

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

JOHNNY LEE WITHERSPOON,
Movant,

CIVIL ACTION NO.: 2:16-cv-64

v.
UNITED STATES OF AMERICA,

(Case No. 2:00-cr-19)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Johnny Lee Witherspoon, (“Witherspoon”), who is currently incarcerated at the United
States Penitentiary in Atlanta, Georgia, filed a Motion to Vacate, Set Aside, or Correct his
Sentence pursuant to 28 U.S.C. § 2255.

(Doc. 1.)

For the reasons which follow, I

RECOMMEND this Court DENY Witherspoon’s Motion and DIRECT the Clerk of Court to
CLOSE this case. I also RECOMMEND that the Court DENY Witherspoon a Certificate of
Appealability and DENY Witherspoon in forma pauperis status on appeal.
BACKGROUND
After a jury trial, Witherspoon was convicted of possession of a firearm by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), and possession of a controlled
substance, in violation of 21 U.S.C. § 844. J., United States v. Witherspoon, 2:00-cr-19 (S.D.
Ga. Nov. 1, 2000), ECF No. 63. The Honorable Anthony Alaimo sentenced Witherspoon to 293
months’ imprisonment. Id. Witherspoon’s sentence was calculated based on his designation as
an armed career criminal under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”),
due to his seven prior convictions: three for strong armed robbery and four for assault and battery

of a high and aggravated nature (“ABHAN”). (Pre-Sentence Investigation Report (“PSI”), ¶¶ 45,
57–58); Sent. Hr’g Tr., United States v. Witherspoon, 2:00-cr-19 (S.D. Ga. Dec. 8, 2000), ECF
No. 68, pp. 34–35. Witherspoon filed an appeal, and the Eleventh Circuit Court of Appeals
affirmed his convictions and sentence. United States v. Witherspoon, 263 F.3d 170 (Table) (11th
Cir. 2001). On May 2, 2016, Witherspoon filed this Section 2255 Motion, in which he asserts
that he should be resentenced in light of the United States Supreme Court’s decision in Johnson
v. United States, ___ U.S. ___, 135 S. Ct. 2551 (June 26, 2015). (Doc. 1.)
DISCUSSION
Witherspoon asserts that his sentence was improperly enhanced because the Court used
several “[p]redicate offenses invalidated by the residual clause to designate him as an armed
career offender.” (Doc. 1, p. 7.) Specifically, Witherspoon argues that, after the Supreme
Court’s decision in Johnson, his convictions for second degree burglary in South Carolina,
burglary, and resisting arrest are no longer considered violent crimes. (Id.)
The Government argues that the Supreme Court’s decision in Johnson is inapplicable to
Witherspoon’s Motion because his status as an armed career criminal was predicated on seven
prior convictions, none of which Witherspoon challenges in his Motion. (Doc. 6, p. 3.) 1

1

The bulk of the Government’s arguments are directed at Witherspoon’s contention that he is “[n]o
longer a career offender in light of Johnson[.]” (Doc. 1, p. 4.) Specifically, the Government asserts that
Witherspoon’s argument is unavailing because Witherspoon was sentenced as an armed career criminal
and not a career offender. Furthermore, the Government argues that, even if Witherspoon were a career
offender, the Supreme Court’s decision in Johnson would not apply to the United States Sentencing
Guidelines. (Doc. 6, p. 3.) However, it is clear from the bulk of Witherspoon’s Motion that he is
challenging his status as an armed career criminal under the ACCA and not as a career offender under the
Sentencing Guidelines. (Doc. 1, p. 7.) Accordingly, the Court shall conduct its analysis as if
Witherspoon had so argued. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v. Harris, 437
F.3d 1107, 110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent standard than pleadings
drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350 F.3d 1157, 1160 (11th Cir.
2003)). To the extent Witherspoon does seek to challenge his sentence based on his career offender
status, this argument is unavailing because, as the Government notes, Witherspoon was sentenced under
the ACCA and not the career offender provision of the United States Sentencing Guidelines. (PSI, ¶¶ 45,
2

I.

Whether Witherspoon is Entitled to Relief Pursuant to Johnson
Under the ACCA, any person who violates 18 U.S.C. § 922(g) and has on three or more

occasions been convicted for a “serious drug offense” or “violent felony” will receive a
mandatory minimum sentence of fifteen years’ imprisonment. 18 U.S.C. § 924(e)(1). “Serious
drug offense” means “an offense under State law, involving manufacturing, distributing, or
possessing with intent to manufacture or distribute, a controlled substance . . . for which a
maximum term of imprisonment of ten years or more is prescribed by law[.]” 18 U.S.C.
§ 924(e)(2)(A)(ii). In Johnson, the Court explained that the ACCA:
defines ‘violent felony’ as follows: ‘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.’
§ 924(e)(2)(B) (emphasis added). The closing words of this definition, italicized
above, have come to be known as the Act’s residual clause.
___ U.S. at ___, 135 S. Ct. at 2555–56. The Supreme Court held that “imposing an increased
sentence under the residual clause of the Armed Career Criminal Act violates the Constitution’s
guarantee of due process[.]” ___ U.S. at ___, 135 S. Ct. at 2563. However, the Court also
emphasized that its “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.” Id.
In this Section 2255 Motion, Witherspoon attempts to challenge the violent felony
designation of his convictions for second degree burglary in South Carolina, burglary, and
resisting arrest. Witherspoon argues that these three convictions were used to classify him as an
armed career criminal under the ACCA’s residual clause. (Doc. 1, p. 7.) However, as his PSI
makes clear, the Court considered Witherspoon an armed career criminal based on his three prior

79); Sent. Hr’g Tr., United States v. Witherspoon, 2:00-cr-19 (S.D. Ga. Dec. 8, 2000), ECF No. 68,
pp. 34–35.
3

convictions for strong armed robbery and four prior convictions for ABHAN—not the
convictions Witherspoon lists in his Motion. (PSI, ¶¶ 45, 57–58.) Furthermore, the strong
armed robbery convictions qualified as violent felonies under the “elements clause” and not the
residual clause of the ACCA. A violent felony under the “elements clause” of the ACCA “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)(i).

While Witherspoon’s ABHAN convictions do not

qualify as violent felonies, Witherspoon’s three convictions for strong armed robbery do. 2
In South Carolina, strong armed robbery is defined as the “felonious or unlawful taking
of money, goods, or other personal property of any value from the person of another or in his
presence by violence or by putting such person in fear.” State v. Rosemond, 356 S.E.2d 636,
640 (S.C. Ct. App. 2002) (emphasis removed) (quotations and citations omitted). 3 After careful
analysis, the Fourth Circuit Court of Appeals determined that, “[t]here is no basis for the
conclusion that South Carolina [strong armed] robbery can be accomplished with force below the
physical force threshold.”

United States v. Doctor, 842 F.3d 306, 312 (4th Cir. 2016).

Accordingly, the Fourth Circuit held that strong armed robbery in South Carolina, “necessarily
include[s] as an element the ‘use, attempted use, or threatened use of physical force against the
person of another[,]’” and, thus, qualifies as a violent felony under the elements clause of the
ACCA. Id. (citing 18 U.S.C. § 924(e)(2)(B)(i)). Consequently, Witherspoon’s three strong
armed robbery convictions in South Carolina satisfy the requisite number of violent felonies
necessary for designation as an armed career criminal under the ACCA. Furthermore, because

2

The Fourth Circuit Court of Appeals established in United States v. Hemingway, 734 F.3d 323, 335
n.11 (4th Cir. 2013), that ABHAN was not a predicate violent felony in South Carolina because “South
Carolina courts have interpreted ABHAN to include both forceful and nonforceful conduct[.]”
3

Strong armed robbery and common law robbery in South Carolina “are synonymous terms for a
common law offense whose penalty is provided for by statute.” Id. (footnote omitted).
4

these convictions are violent felonies according to the elements clause of the ACCA, they remain
undisturbed by the Supreme Court’s decision in Johnson. See Johnson, ___ U.S. at ___, 135 S.
Ct. at 2563 (“[Johnson] decision does not call into question application of the Act to . . . the
remainder of the Act’s definition of a violent felony.”).
Thus, Witherspoon has the requisite qualifying predicate offenses under the ACCA. The
residual clause had no bearing on his status as an armed career criminal, and thus, Johnson also
has no effect on the resulting sentence. Witherspoon is not entitled to his requested relief, and
therefore, I RECOMMEND the Court DENY his Motion.
II.

Leave to Appeal in Forma Pauperis and Certificate of Appealability
The Court should also deny Witherspoon leave to appeal in forma pauperis and a

Certificate of Appealability (“COA”). Though Witherspoon has, of course, not yet filed a notice
of appeal, it is proper to address these issues in the Court’s order of dismissal. Pursuant to Rule
11 of the Rules Governing Section 2255 Cases, “the district court must issue or deny a certificate
of appealability when it issues a final order adverse to the applicant.” (Emphasis supplied);
see also Fed. R. App. P. 24(a)(3) (trial court may certify that appeal of party proceeding in forma
pauperis is not taken in good faith “before or after the notice of appeal is filed”).
An appeal cannot be taken in forma pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R. App. P. 24(a)(3). Good faith in this
context must be judged by an objective standard. Busch v. Cty. of Volusia, 189 F.R.D. 687, 691
(M.D. Fla. 1999). A party does not proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States, 369 U.S. 438, 445 (1962). A claim or
argument is frivolous when it appears the factual allegations are clearly baseless or the legal
theories are indisputably meritless. Neitzke v. Williams, 490 U.S. 319, 327 (1989); Carroll v.

5

Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is “without arguable merit either in law or
fact.” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002); see also Brown v. United States,
Nos. 407CV085, 403CR001, 2009 WL 307872, at *1–2 (S.D. Ga. Feb. 9, 2009).
Additionally, under 28 U.S.C. § 2253(c)(1), an appeal cannot be taken from a final order
in a habeas proceeding unless a certificate of appealability is issued.

A certificate of

appealability may issue only if the applicant makes a substantial showing of a denial of a
constitutional right. The decision to issue a certificate of appealability requires “an overview of
the claims in the habeas petition and a general assessment of their merits.” Miller-El v. Cockrell,
537 U.S. 322, 336 (2003). In order to obtain a certificate of appealability, a petitioner must show
“that jurists of reason could disagree with the district court’s resolution of his constitutional
claims or that jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Id. “Where a plain procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist could not conclude either that the district
court erred in dismissing the petition or that the petitioner should be allowed to proceed further.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see also Franklin v. Hightower, 215 F.3d 1196,
1199 (11th Cir. 2000). “This threshold inquiry does not require full consideration of the factual
or legal bases adduced in support of the claims.” Miller-El, 537 U.S. at 336.
Based on the above analysis of Witherspoon’s pleading, the Government’s Response, and
applying the Certificate of Appealability standards set forth above, there are no discernable
issues worthy of a certificate of appeal; therefore, the Court should DENY the issuance of a
Certificate of Appealability. If the Court adopts this recommendation and denies Witherspoon a
Certificate of Appealability, Witherspoon is advised that he “may not appeal the denial but may

6

seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22.” Rule
11(a), Rules Governing Section 2255 Cases in the United States District Courts. Furthermore, as
there are no non-frivolous issues to raise on appeal, an appeal would not be taken in good faith.
Thus, the Court should likewise DENY Witherspoon in forma pauperis status on appeal.
CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DENY Witherspoon’s Motion
to Vacate, Set Aside, or Correct his Sentence, filed pursuant to 28 U.S.C. § 2255, and DIRECT
the Clerk of Court to CLOSE this case.

I also RECOMMEND that the Court DENY

Witherspoon a Certificate of Appealability and DENY Witherspoon in forma pauperis status on
appeal.
The Court ORDERS any party seeking to object to this Report and Recommendation to
file specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the pleading must also be included. Failure to do so will bar any later
challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A

7

party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Court DIRECTS the Clerk of
Court to serve a copy of this Report and Recommendation upon Witherspoon and Respondent.
SO ORDERED and REPORTED and RECOMMENDED, this 11th day of August,
2017.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

8