Brown v. United States Of America
ORDER denying 15 Motion for Reconsideration ; denying 16 Motion for Leave to Appeal in forma pauperis. Signed by Judge J. Randal Hall on 1/26/2017. (jah)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.
(Formerly CR 4 94-086)
STATES OF AMERICA,
sentence under 28 U.S.C.
Presently before the Court
is Petitioner's motion for reconsideration and his motion to
proceed in forma pauperis on appeal.
In his motion for reconsideration, Petitioner challenges
the Court's determination that he is not eligible for post
conviction relief pursuant to the new rule of constitutional
law announced in Johnson v.
(finding the "residual clause" of the Armed Career
924 (e) (2) (B) (ii) , to be
and a violation of
The ACCA provides
enhancement for a defendant who has three prior convictions
for a violent
imprisonment for a term exceeding one year that (1) "has as an
element the use, attempted use, or threatened use of physical
force against the person of another"
(known as the "elements
involves use of explosives" (known as the "enumerated offenses
clause"); or (3)
"otherwise involves conduct that presents a
serious potential risk of physical injury to another"
Johnson decision struck down the residual clause of the ACCA,
the other two clauses.
by adopting the Report and
Recommendation issued on November 7, 2016, that Petitioner had
four prior convictions that qualified as violent felonies for
purposes of the ACCA.
Two of the convictions, a 1974 murder
conviction and a 1992 conviction for aggravated assault, are
unchallenged as violent felonies in Petitioner's motion for
Rather, Petitioner focuses on the third and
fourth convictions for robbery by intimidation.1
motion for reconsideration, Petitioner insists that " [r]obbery
As noted in the Report and Recommendation, this Court
need not delve into whether the 1973 conviction for robbery by
intimidation actually belongs to Petitioner because the 1970
conviction for robbery by intimidation gets Petitioner to
three for purposes of the ACCA enhancement.
In the Report and Recommendation,
the Magistrate Judge
he was convicted by a jury of the lesser charge of
robbery by intimidation.
the Magistrate Judge
intimidation conviction falls within the "elements" provision
of the ACCA, not the invalidated residual clause, because the
elements of robbery by intimidation include that the offender
924 (e) (2) (B) (1)
. . . has as an element the use,
use, or threatened use of physical force against the person of
another . . . ."); see also Report and Recommendation,
73, at 9-11.
As explained, this conclusion follows from the
fact that a conviction for robbery by intimidation "requires
proof that the theft was attended with such circumstances of
threatening by word or
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,
247 Ga. App.
And, while this definition does not contain the word "force,"
"the natural corollary of an act that creates fear for the
safety of a person is the threatened use of physical force
7069665, at *2 (S.D. Ga. Nov. 13, 2015); see also Report and
reliance upon the Johnson decision is misplaced,
and he is
therefore not entitled to relief from the judgment entered
against him in this § 2255 case.
For this reason, his motion
Petitioner also seeks to proceed in forma pauperis on
The requirements for litigants seeking to proceed in
forma pauperis on appeal are set forth in 28 U.S.C.
provides that "[a]n appeal may not be taken in forma pauperis
if the trial court certifies in writing that it is not taken
in good faith."
An appeal is not taken in good faith when a
litigant seeks review of frivolous issues from an objective
See Coppedge v. United States,
In deciding whether an IFP appeal is frivolous, the
district court determines whether the issues raised have any
arguable merit either in law or fact.
251 F.3d 1346,
1349 (11th Cir. 2001).
See Bilal v. Driver,
The Report and Recommendation adopted by
Accordingly, Petitioner's appeal is not taken in good
faith, and his motion to proceed on appeal in forma pauperis
is therefore DENIED.
ORDER ENTERED at Augusta, Georgia, this c^j^ day of
UNITED] STATES DISTRICT JUDGE
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