Walker v. United States of America

Filing 5

REPORT AND RECOMMENDATIONS that this motion be Denied without an evidentiary hearing, that this civil action be Closed, and a final judgment be entered in favor of the Respondent - re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Tommy Lee Walker. Objections to R&R due by 3/27/2017. Signed by Magistrate Judge Brian K. Epps on 3/10/17. (cmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
TOMMY LEE WALKER,

)
)
Petitioner,
)
)
v.
)
CV 316-052
)
(Formerly CR 312-002)
UNITED STATES OF AMERICA,
)
)
Respondent.
)
_________________________________________________________
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
_________________________________________________________
Petitioner, an inmate at the Federal Correctional Institution in Jesup, Georgia, after
receiving permission from the Eleventh Circuit Court of Appeals, has filed with this Court a
second motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the
reasons set forth below, the Court REPORTS and RECOMMENDS the § 2255 motion be
DENIED without an evidentiary hearing or appointment of counsel, this civil action be
CLOSED, and a final judgment be ENTERED in favor of Respondent.
I.

BACKGROUND
A.

Indictment and Agreement to Plead Guilty

On June 6, 2012, the grand jury in the Southern District of Georgia charged Petitioner
under the Armed Career Criminal Act (“ACCA”) with one count of possession of a firearm
and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(9), and
924(e). United States v. Walker, CR 312-002, doc. no. 1 (S.D. Ga. June 6, 2012) (hereinafter
“CR 312-002”). The Court appointed attorney Charles C. Butler under the Criminal Justice

Act to represent Petitioner. Id., doc. no. 24.
On August 16, 2012, Petitioner appeared with counsel before United States District
Judge Dudley H. Bowen, Jr., and pled guilty to the single-count indictment. Id., doc. nos.
31-33. In exchange for the guilty plea, the government agreed to (1) not oppose a two-point
acceptance of responsibility reduction and move for an additional one-point reduction under
U.S.S.G. § 3E1.1(b); and (2) consider filing a motion, based on any “substantial assistance”
provided by Petitioner, for downward departure under U.S.S.G. § 5K1.1 or a reduction of
Petitioner’s sentence under Fed. R. Crim. P. 35. Id., doc. no. 32, pp. 2-3.
For his part, Petitioner admitted the factual basis for his guilty plea, including “having
been previously convicted of crimes punishable by imprisonment for a term exceeding one
year, which include at least three violent felony offenses committed on occasions different
from one another. . . and having been previously convicted of a misdemeanor crime of
domestic violence.” Id. at 7-8. The twelve felonies and one misdemeanor listed in the plea
agreement are the same crimes listed in count one of the indictment, and include three
burglaries, obstruction of a law enforcement officer by violence, armed robbery, and
aggravated assault. CR 312-002, doc. no. 1, pp. 1-2; doc. no. 32, pp. 7-8. As part of the plea
agreement, Petitioner also agreed to waive the right to file a direct appeal and the right to
collaterally attack his conviction and sentence unless his sentence exceeded the statutory
maximum, the sentencing court upwardly departed from the advisory Guideline range, or the
government appealed the sentence. Id., doc. no. 32, p. 6.
During the change of plea hearing, Judge Bowen established Petitioner’s competence
to enter a guilty plea if he so desired. Id., doc. no. 44 (“Rule 11 Tr.”), pp. 19-22. Petitioner
also testified under oath that he was satisfied with the services rendered by Mr. Butler. Id. at
2

22. Judge Bowen reviewed the charge and heard a factual basis for Petitioner’s guilty plea
from Special Agent Tyra Cunningham with the Bureau of Alcohol, Tobacco, Firearms, and
Explosives.

Id. at 23, 27-30.

SA Cunningham testified as to the circumstances of

Petitioner’s arrest which led to discovery of the firearm and ammunition, as well as
Petitioner’s twelve prior felony convictions and a misdemeanor conviction as delineated in
the indictment and plea agreement. Id. at 27-29. Petitioner affirmed the testimony of SA
Cunningham was factually correct as to his possession of the firearm and ammunition, and
he confirmed his prior twelve felony convictions. Id. at 30-32.
B.

Sentencing

Upon entry of the guilty plea, the United States Probation Office prepared a
Presentence Investigation Report (“PSI”). As explained in the PSI, Petitioner had “at least
three prior convictions for a violent felony or serious drug offense, or both, which were
committed on different occasions.” PSI ¶ 18. The PSI went on to detail three burglaries (PSI
¶¶ 23-25), obstruction of a law enforcement officer by violence (PSI ¶ 29), armed robbery
(PSI ¶ 30), and aggravated assault (PSI ¶ 31) – all of which were listed in the indictment and
plea agreement. CR 312-002; doc. no. 1; doc. no. 32. The PSI calculated a total offense
level of thirty, a criminal history category of VI, and an advisory Guideline range of 168 to
210 months of imprisonment. PSI ¶¶ 21, 34, 35, 53. However, because Petitioner was
categorized as an armed career criminal within the meaning of U.S.S.G. § 4B1.4, the
Guideline sentencing range was set at the statutorily required minimum of 180 months
(fifteen years) to 210 months. PSI ¶¶ 18, 53; 18 U.S.C. § 924(e). Petitioner did not file any
objections to the PSI. See PSI Add.; CR 312-002, doc. no. 43, (“Sent. Tr.”), p. 3.

3

At sentencing on February 13, 2013, Judge Bowen adopted the factual statements and
Guideline recommendation, noting in particular the “very, very significant” statutory penalty
of fifteen years to life in prison because of the application of the ACCA. Sent. Tr., pp. 3-4.
Judge Bowen verified Petitioner understood the ACCA limited the availability of leniency in
sentencing, and Petitioner’s counsel explained the ACCA moved Petitioner’s sentencing
range under the advisory Guidelines had moved from a minimum of 168 months to 180
months. Id. at 5. Petitioner never voiced any objection to the delineation of his prior felony
convictions in the PSI or to the applicability of the ACCA. Judge Bowen sentenced
Petitioner to a term of imprisonment of 180 months, to be served consecutively to the
revoked probation term Petitioner was serving for a Laurens County Superior Court
sentence. Id., doc. nos. 37-38. Judgment entered on February 15, 2013. Id., doc. no. 38.
C.

Post-Conviction Proceedings

Consistent with the plea agreement, Petitioner did not file a direct appeal. Id., doc.
no. 32. However, the Clerk of Court docketed Petitioner’s first § 2255 motion on February
19, 2014. Id., doc. no. 41. As the Court explained in ruling on that first motion, Petitioner’s
claims for relief all related to his classification under the ACCA, and were grouped as
follows: (1) Petitioner’s underlying federal conviction for felon in possession of a firearm
and ammunition does not qualify as a crime of violence, and therefore he should not be
subject to an ACCA sentence enhancement; (2) Petitioner’s convictions for battery, armed
robbery, and aggravated assault do not qualify as crimes of violence; and (3) Petitioner
received ineffective assistance of counsel at sentencing because no objection was made to
imposition of the ACCA sentencing enhancement. See id., doc. no. 46.

4

Judge Bowen denied the motion on April 13, 2015, finding the valid collateral attack
waiver in the plea agreement barred Petitioner’s claims, but even if the claims were not
barred, none of them had merit. Specific to the ACCA claims, the Court determined: (1)
Petitioner’s underlying federal felony conviction was not used as a predicate offense for the
ACCA enhancement, but rather only made him eligible for sentencing under the ACCA if he
had the requisite predicate offenses; and (2) because Petitioner had not challenged the
continued viability of his three burglary convictions as ACCA predicates, Petitioner was not
entitled to relief. Id., doc. nos. 46, 48.
On June 26, 2015, the Supreme Court found the “residual clause” of the ACCA, 18
U.S.C. § 924(e)(2)(B)(ii), to be void for vagueness and a violation of the Constitution’s
guarantee of due process. Johnson v. United States, 576 U.S. -, 135 S. Ct. 2551, 2563
(2015). In Welch v. United States, 578 U.S.-, 136 S. Ct. 1257, 1265 (2016), the Supreme
Court held Johnson is a substantive decision retroactive in cases on collateral review.
Petitioner then sought and received permission from the Eleventh Circuit Court of
Appeals to file a second or successive § 2255 motion asserting one claim that his sentence
under the ACCA was unconstitutionally vague. (Doc. no. 1, Ex. A.) The Eleventh Circuit
noted Petitioner had prior convictions for burglary, obstruction of an officer with threats of
violence, terroristic threats and acts, armed robbery, kidnapping, and aggravated assault. (Id.
at 2.) Yet, Petitioner still made a prima facie showing for filing a second § 2255 motion
because (1) “[i]t is unclear which prior felonies were used to enhance [Petitioner’s] sentence
under the ACCA”; and (2) at the time of the request to file a second § 2255 motion it was
unclear whether any of Petitioner’s prior Georgia convictions, other than the conviction for
obstruction of an officer with threats of violence, would qualify as predicates under the
5

ACCA’s enumerated offenses or elements clauses post-Johnson. (Id. at 3.) The Eleventh
Circuit cautioned, however, it made a limited determination to allow the filing of a second
motion, and because no merits had been conclusively resolved by simply allowing the
motion to be filed, this Court did not owe deference to the prima facie finding. (Id. at 4.)
Respondent argues that even after Johnson, Petitioner’s sentence is valid because he
has three burglary convictions that qualify as predicate convictions under the enumerated
offenses portion of the ACCA’s violent felony definition.

(See doc. no. 3, pp. 4-9.)

Moreover, Petitioner’s three convictions for armed robbery, aggravated assault, and
obstruction of a law enforcement officer with violence also qualify, post-Johnson, under the
elements portion of the ACCA’s definition of violent felony. (Id. at 9-12.) As these six
predicate offenses are more than sufficient to satisfy the requirement of three predicate
offenses to impose the ACCA sentencing enhancement, see 18 U.S.C. § 924(e)(1),
Respondent argues Petitioner’s § 2255 motion should be denied. (Id. at 12.)
II.

DISCUSSION
A.

Petitioner Is Not Entitled to an Evidentiary Hearing or
Appointment of Counsel.

In his request for relief, Petitioner asks for both an evidentiary hearing and
appointment of counsel. (Doc. no. 1, p. 9.) Section 2255 does not require that the Court hold
an evidentiary hearing if “the motion and the files and records of the case conclusively show
that the prisoner is entitled to no relief. . . .” Winthrop-Redin v. United States, 767 F.3d
1210, 1216 (11th Cir. 2014) (quoting 28 U.S.C. § 2255(b)). “A hearing is not required on
patently frivolous claims or those which are based upon unsupported generalizations. Nor is
a hearing required where the petitioner’s allegations are affirmatively contradicted in the

6

record.” Holmes v. United States, 876 F.2d 1545, 1553 (11th Cir. 1989) (citation omitted).
Moreover, a petitioner is not entitled to an evidentiary hearing where he asserts “merely
conclusory allegations unsupported by specifics or contentions that in the face of the record
are wholly incredible.” Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991) (citation
omitted); see also Lynn v. United States, 365 F.3d 1225, 1238-39 (11th Cir. 2004). Because
Petitioner’s claims lack merit as a matter of law, or are otherwise affirmatively contradicted
by the record, no evidentiary hearing is necessary, and Petitioner’s request for one should be
denied.
Nor is Petitioner entitled to appointment of counsel. While it is true that the Court
appoints counsel pursuant to Rule 8(c) of the Rules Governing Section 2255 Proceedings
when an evidentiary hearing is held, as explained herein, an evidentiary hearing is not
necessary in this case. Indeed, there is no automatic constitutional right to counsel in habeas
proceedings. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Webb,
565 F.3d 789, 794 (11th Cir. 2009) (citing Barbour v. Haley, 471 F.3d 1222, 1227 (11th Cir.
2006)); Hooks v. Wainwright, 775 F.2d 1433, 1438 (11th Cir. 1985). Under 18 U.S.C.
§ 3006A(a)(2)(B), the Court may appoint counsel for an indigent litigant seeking relief under
28 U.S.C. § 2255, but such requests are discretionary when “due process or the ‘interests of
justice’” so require. Hooks, 775 F.2d at 1438. Moreover, appointment of counsel is “a
privilege that is justified only by exceptional circumstances[.]” McCall v. Cook, 495 F.
App’x 29, 31 (11th Cir. 2012). In sum, “[i]t is well established that indigents applying for
federal or state post-conviction relief, even those sentenced to death, have no federal
constitutional right to counsel except in those rare cases where under the circumstances the
fundamental fairness component of due process requires appointment of counsel.” Donald E.
7

Wilkes, Jr., Federal Postconviction Remedies and Relief Handbook § 2.2, at 147 (2016 ed.)
(citations omitted).
The Court does not find any exceptional circumstances justifying the appointment of
counsel. McCall, 495 F. App’x at 31. Petitioner does not offer any basis for his request for
appointed counsel other than presumably to represent him at an evidentiary hearing on his
§ 2255 motion or at a new sentencing. However, Petitioner is not entitled to a hearing or a
new sentencing proceeding, and his request for appointment of counsel should be denied.
B.

Petitioner Is Not Entitled to Resentencing Because Even After Johnson,
He Has Sufficient Predicate Convictions under Non-Residual Portions of
the ACCA’s “Violent Felony” Definition to Qualify as an Armed Career
Criminal.

There is no merit to Petitioner’s argument for resentencing because he has at least
three valid predicate convictions under the non-residual clauses of the ACCA.
1.

Parsing the Three Clauses of the ACCA

The ACCA defines violent felony as any felony that either “(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).
Subsection (i) is sometimes identified as the elements clause, while subsection (ii) is
subdivided into (a) the enumerated offenses clause, and (b) the now invalid residual clause.
See In re Thomas, 823 F.3d 1345, 1347 (11th Cir. 2016).
2.

Petitioner’s Three Prior Burglary Convictions Qualify as
Predicates Under the Enumerated Offenses Clause of the ACCA.

As set forth supra, the now-invalidated residual clause of the ACCA violent felony
definition includes a crime that “otherwise involves conduct that presents a serious potential
8

risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(ii). Johnson did “not call into
question application of the [ACCA] to the four enumerated offenses, or the remainder of the
[ACCA’s] definition of a violent felony,” all of which may still be used to impose ACCA
enhancements. Johnson, 135 S. Ct. at 2563. Thus, after Johnson invalidated the residual
clause of the ACCA, an enhancement may still be validly applied based on an offense falling
under the enumerated offenses clause of the ACCA. See 18 U.S.C. § 924(e)(2)(B)(ii) (defining
violent felony as “burglary, arson, or extortion” or an offense involving “use of explosives”).
Petitioner’s three burglary offenses, which Petitioner admitted as part of his plea
agreement and to which Petitioner did not object when delineated in the PSI, fall under the
enumerated offenses clause, and he therefore qualifies as a an armed career criminal, even after
Johnson. This follows from the fact that Georgia has a divisible burglary statute, and Petitioner’s
burglaries all involved a building or other structure, qualifying as “generic burglary” under the
ACCA. However to reach this conclusion, it is helpful to review the analysis required under
Mathis v. United States, 579 U.S. -, 136 S. Ct. 2243 (2016) and Descamps v. United States, 570
U.S. -, 133 S. Ct. 2276, 2281 (2013), for using the modified categorical approach to determine
whether a burglary qualifies as generic burglary.
To determine whether a defendant’s prior conviction qualifies as a predicate ACCA
offense under the enumerated offenses clause, courts compare the elements of the ACCA
predicate offense to the elements of the prior conviction. Descamps, 133 S. Ct. at 2281-82.
A prior conviction qualifies as an ACCA predicate offense only if the elements of the prior
conviction are the same or narrower than the elements of the ACCA predicate offense. Id.
Because the ACCA does not specify the elements for the predicate, enumerated offenses,

9

courts apply the elements of these “generic” crimes as commonly understood. Id.; United
States v. Gundy, 842 F.3d 1156, 1161 (11th Cir. 2016).
Comparison of the elements between the prior conviction and ACCA offense is
simple when the charging statute for the prior conviction is indivisible, meaning that the
statute sets out a single set of elements for the offense.

Courts refer to this simple

comparison as the “categorical approach.” Descamps, 133 S. Ct. at 2281. In this type of
case, the court need only “line[] up that crime’s elements alongside those of the generic
offense and see[] if they match.” Mathis, 136 S. Ct. at 2248.
A complication arises, however, when the charging statute for the prior conviction
sets out one or more elements in the alternative, such as a burglary statute that defines
burglary as either the unlawful entry into a building or an automobile. See Descamps, 133 S.
Ct. at 2281-82. A criminal statute that lists elements in the alternative, and thereby defines
multiple crimes, is “divisible.” Mathis, 136 S. Ct at 2249. “Faced with a ‘divisible’ statute,
courts must identify which crime in the statute formed the basis of the defendant’s
conviction.”

Gundy, 842 F.3d at 1162.

In such cases, courts may use the modified

categorical approach and look beyond the charging statute to determine which of the
alternative elements formed the basis of the prior conviction, by reference to a limited class
of documents such as indictments, plea agreements, and jury instructions. Descamps, 133 S.
Ct. at 2282. In addition to these so-called Shepard documents,1 the Eleventh Circuit has also
allowed courts to use “undisputed facts contained in a PSI.” United States v. RamirezFlores, 743 F.3d 816, 821 (11th Cir. 2014) (citation omitted). Courts “then compare the

1

Shepard v. United States, 544 U.S. 13, 26 (2005).

10

elements of that identified crime to the elements of the relevant generic offense.” Gundy,
842 F.3d at 1162.
As has been explained in this District:
When faced with such a state statute [with disjunctive phrasing], the court
must decide whether the disjunctive language creates (1) multiple crimes that
are “divisible” into those alternative elements that match the generic version of
the ACCA enumerated crime and those that do not, or (2) a single crime that
has an “indivisible” set of elements and simply lists various alternative factual
means of committing that single offense. Gundy, 842 F.3d at 1162. An
indivisible statute must exactly match the generic crime or else it cannot count
as an ACCA predicate offense. Id. A divisible statute, on the other hand, may
suffice as an ACCA predicate if it can be determined that the defendant was
convicted of the generic crime rather than an alternative, non-generic crime.
Id.
Clemons v. United States, CR 408-225/CV 416-005, 2017 WL 473968, at *2 (S.D. Ga. Jan.
6, 2017), adopted by, 2017 WL 470900 (S.D. Ga. Feb. 3, 2017).
With respect to Petitioner, generic burglary “contains at least the following elements:
an unlawful or unprivileged entry into, or remaining in, a building or other structure with
intent to commit a crime.” Taylor v. United States, 495 U.S. 575, 598 (1990). At the time of
Petitioner’s state burglary convictions, the Georgia Code defined felony burglary as follows:
A person commits burglary when, without authority and with the intent to
commit a felony or theft therein, he enters or remains within the dwelling
house of another or any building, vehicle, railroad car, watercraft, or other
such structure designed for use as the dwelling of another or enters or remains
within any other building or any room or part thereof.
Ga. Code Ann. § 26-1601 (version in effect 1978-1980) (Doc. no. 3, Ex. A).
In Gundy, decided after Mathis, the Eleventh Circuit examined the version of the
Georgia burglary statute in effect from 1980 through 2012 - which is substantially similar

11

with respect to the locational elements of the crime as the prior version quoted above.2
Applying Mathis, the Eleventh Circuit has determined “the plain text of the Georgia statute
has three subsets of different locational elements, stated in the alternative and in the
disjunctive . . . effectively creating several different crimes.” Gundy, 842 F.3d at 1167.
“That the Georgia prosecutor must select and identify the locational element of the place
burgled – whether the place burgled was a dwelling, building, railroad car, vehicle, or
watercraft - is the hallmark of a divisible statute.” Id. Therefore, as described above, the
Court may use the modified categorical approach to determine whether Petitioner’s prior
burglary convictions match the generic definition of burglary Congress intended to count as a
predicate offense in the enumerated offenses clause of the ACCA. See id. at 1168.
Here, the Shepard documents from Petitioner’s prior burglary convictions, attached as
Exhibits B through D to Respondent’s briefing, (doc. no. 3), as well as the uncontested facts
in the PSI, (¶¶ 23-25), show Petitioner was thrice convicted of unlawfully entering a building
or other structure with intent to commit a crime therein: (1) February 4, 1980, mobile home
of Mr. Raymond Manning Purvis; (2) February 4, 1980, dwelling house residence of Mr.
Luther Hooks; and, (3) January 26, 1980, commercial building of Associates Financial
Services Company, Inc.

2

As Petitioner’s three prior Georgia burglary convictions

The statute as reviewed in Gundy states:

A person commits the offense of burglary when, without authority and with the
intent to commit a felony or theft therein, he enters or remains within the
dwelling house of another or any building, vehicle, railroad car, watercraft, or
other such structure designed for use as the dwelling of another or enters or
remains within any other building, railroad car, aircraft, or any room or any part
thereof.
O.C.G.A. § 16-7-1 (version in effect from 1980-2012).
12

“substantially conform to the generic definition of burglary,” they qualify as violent felonies
under the enumerated offenses clause of the ACCA. Gundy, 842 F.3d at 1168-69.
Petitioner argues the burglaries cannot serve as predicate offenses because Judge
Bowen did not specifically identify and classify each predicate offense under the still-valid
elements or enumerated offenses clauses of the ACCA. (See generally doc. no. 4.) First, the
cases upon which Petitioner primarily relies make a determination as to whether a petitioner
should be allowed to file a second or successive § 2255 motion, not a substantive ruling on
the merits of a claim about properly counting ACCA predicates. See, e.g., In re Rogers, 825
F.3d 1335, 1338 (11th Cir. 2016). Moreover, those cases make clear that lack of specificity
is not conclusive where “binding precedent categorically classif[ies] the offense or offenses
in question as either falling under the elements clause or enumerated crimes clause.” Id. In
any event, Petitioner already benefitted from the lack of specificity in the record because he
was allowed to file a second § 2255 motion. However, as explained above, that preliminary
determination by the Eleventh Circuit does not prohibit this Court from examining the
substantive merit of Petitioner’s claim.
Second, to the extent Petitioner relies on other cases to suggest Respondent cannot
“substitute” a new valid ACCA-qualifying conviction that the sentencing court could have,
but did not, rely on at sentencing, and the government failed to object at sentencing, the
circumstances of this case are distinguishable. (See doc. no. 1, p. 3 and doc. no. 4, pp. 3-4
(citing McCarthan v. [Warden], 811 F.3d 1237, 1250 n.8 (11th Cir. 2016) and Bryant v.

13

Warden, 738 F.3d 1253, 1279 (11th Cir. 2013)).)3 Judge Bowen did not identify at most
three predicates such that the invalidation of one conviction would invalidate the ACCA
enhancement. Here, the undisputed PSI stated there were at least three prior qualifying
convictions and then specified twelve prior felony convictions. PSI ¶¶ 18, 23-31.
No one objected to, argued about, or identified any particular offenses of the admitted
twelve prior felony convictions as ACCA predicates, and as discussed herein, binding
precedent confirms Petitioner has at least three prior convictions that qualify as ACCA
predicates. Thus, unlike Bryant, Respondent here did not forgo the opportunity to rely on
any of the undisputed qualifying predicate offenses. In fact, based on the three burglaries
and the felony obstruction of an officer conviction identified by the Eleventh Circuit and
conceded by Petitioner, (doc. no. 1, p. 4), Petitioner already exceeds the number of necessary
ACCA predicates without consideration of Respondent’s arguments concerning armed
robbery and aggravated assault.4
3.

Petitioner’s Prior Armed Robbery and Aggravated Assault
Convictions Also Qualify as Predicates Under the Elements Clause
of the ACCA.

Noticeably absent from Petitioner’s §2255 motion or reply brief is any substantive
discussion of why his armed robbery and aggravated assault convictions should not count as
ACCA predicates. As with the first § 2255 motion he filed, Petitioner simply states, without
reference to any relevant case law, that these convictions do not qualify as violent felonies. The
3

Additionally, the opinion in McCarthan was vacated, and the case will be reheard en
banc by the Eleventh Circuit Court of Appeals. See McCarthan v. Warden, No. 12-14989, 2016
WL 3878151 (11th Cir. May 24, 2016).
4

See also United States v. Brown, 805 F.3d 1325, 1327 (11th Cir. 2015) (Georgia
felony obstruction conviction categorically a violent felony under ACCA elements clause).

14

case law does not support his position, and even if it did, because of the three burglary
convictions and the conviction for violent obstruction of an officer, Petitioner is not entitled to
the relief he seeks. Nonetheless, the Court briefly examines Petitioner’s armed robbery and
aggravated assault convictions and determines they, too, qualify as predicate offenses, this time
under the elements clause of the ACCA.

Petitioner committed his armed robbery in 1995. PSI ¶ 30. At that time, Georgia
defined armed robbery as follows: “A person commits the offense of armed robbery when,
with intent to commit theft, he or she takes property of another from the person or the
immediate presence of another by use of an offensive weapon, or any replica, article, or
device having the appearance of such weapon.” O.C.G.A. § 16-8-41(a) (Doc. no. 3, Ex. E).
Thus, by definition, Petitioner had to have used an actual offensive weapon, or an item
appearing to be such a weapon, to take the property of another. Id.
Georgia courts define an “offensive weapon” as “any object, device, or instrument
which when used offensively against a person is likely to or actually does result in death or
serious bodily injury.” Jackson v. State, 545 S.E.2d 148, 151 (Ga. App. 2001) (citing
Georgia pattern jury instructions). Use of an “offensive weapon” in robbery then necessarily
requires at least a threat of violent physical force. See Sheely v. State, 650 S.E.2d 762, 764
(Ga. App. 2007) (“A person commits the offense of armed robbery when, with intent to
commit theft, he or she takes property of another from the person or the immediate present of
another by use of an offensive weapon. The element of use is present when the victim is
aware of the weapon and it has the desired forceful effect of assisting to accomplish the
robbery.” (internal quotations omitted)); cf. Hicks v. State, 207 S.E.2d 30, 37 (Ga. 1974)
(reversing armed robbery conviction for taking billfold from sleeping victim, ruling the
15

statute “clearly contemplates that the offensive weapon be used as a concomitant to a taking
which involves the actual force or intimidation (constructive force) against another person”).
According to the undisputed PSI, Petitioner committed armed robbery by forcing the
victim from his car at gun point and robbing him of a gold pocket watch and five dollars in
cash. PSI ¶ 30. Therefore, the Court agrees with Respondent’s argument, (doc. no. 3, pp. 910), that “threatened use of physical force” qualifies Georgia armed robbery as a violent
felony under the elements clause of the ACCA. See 18 U.S.C. § 924(e)(2)B(ii); see also doc.
no. 3, pp. 10-11 n. 4 (collecting Eleventh Circuit cases post-Johnson ruling Florida armed
robbery, which has as an element the use, attempted use, or threatened use of physical force
against the person of another, qualifies as predicate offense under elements clause of ACCA).
Petitioner’s ACCA predicate count now stands at five.

But even if the Court were not to count the armed robbery because there is no postJohnson, published precedent from the Eleventh Circuit concerning Georgia armed robbery,
Petitioner also has a 2007 Georgia aggravated assault conviction. PSI ¶ 31. As Respondent
succinctly summarizes after quoting the relevant Georgia statutes, O.C.G.A. §§ 16-5-21 and
16-5-20(a),5 “for [Petitioner] to be guilty of Georgia aggravated assault as charged, he had to
attempt or threaten violent injury to another person.” (Doc. no. 3, pp. 11-12.) Indeed,
according to the undisputed PSI, Petitioner’s aggravated assault conviction occurred after he
had a physical altercation with his live-in girlfriend in which he struck her in the face with
his fist and then put a gun against her head and cocked the hammer. PSI ¶ 31. Courts within
this District have repeatedly held a conviction for Georgia aggravated assault qualifies as a
violent felony under the elements clause of the ACCA. Brown v. United States, CV 4165

These statutes each reference “serious bodily injury” and “violent injury,” respectively.
16

190/ CR 494-086, 2016 WL 7013531 (S.D. Ga. Nov. 7, 2016), adopted by, 2016 WL
7007515 (S.D. Ga. Nov. 29, 2016); see also Shuck v. United States, CV 416-211/CR 411007, 2017 WL 465682, at *4 (S.D. Ga. Jan. 31, 2017) (collecting cases), adopted by, 2017
WL 693285 (S.D. Ga. Feb. 21, 2017).
Petitioner’s ACCA predicate count now stands at six, well in excess of the three
necessary to impose the ACCA sentencing enhancement. Therefore, Petitioner’s enhanced
sentence under § 924(e) was properly imposed, and he is not entitled to the resentencing he
seeks.
III.

CONCLUSION
For the reasons set forth above, the Court REPORTS and RECOMMENDS the

§ 2255 motion be DENIED without an evidentiary hearing or appointment of counsel, this
civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.
SO REPORTED and RECOMMENDED this 10th day of March, 2017, at Augusta,
Georgia.

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