Brown v. United States Of America

Filing 17

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
SAVANNAH DIVISION

THEODOIIE

BROWN,

Petitioner,

*

CIVIL ACTION NO.
*

v.

CV 416-190

(Formerly CR 4 94-086)
UNITED

STATES OF AMERICA,

*

*

Respondent.

R

0

On

November

Theodore

Brown's

29,

2016,

motion

sentence under 28 U.S.C.

to

D

E

R

this

Court

vacate,

§ 2255.

set

denied

aside,

Petitioner

or

correct

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.

2563 (2015)

("ACCA"),

for vagueness

guarantee

135 S.

Ct.

2551,

(finding the "residual clause" of the Armed Career

Criminal Act

void

United States,

of

18

U.S.C.

§

924 (e) (2) (B) (ii) , to be

and a violation of

due process).

the

Constitution's

The ACCA provides

a

sentence

enhancement for a defendant who has three prior convictions
for a violent

felony.

18

U.S.C.

§

924(e)(1).

The ACCA

defines

"violent

felony"

as

any

crime

punishable

by

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"

clause");

(2)

is

a

burglary,

(known as the "elements

arson,

or

extortion,

[or]

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"
as

the

"residual

clause").

18

U.S.C.

§

924(e)(2)(B).

(known
The

Johnson decision struck down the residual clause of the ACCA,
not

the other two clauses.

In sum,

this

Court

found,

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
reconsideration.

Rather, Petitioner focuses on the third and

fourth convictions for robbery by intimidation.1

Through his

motion for reconsideration, Petitioner insists that " [r]obbery

by

intimidation

1

falls

under

the

purview

of

the

residual

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.

clause."

(Doc.

15,

at 1.)

In the Report and Recommendation,

points

out

robbery,

that

while

Petitioner

the Magistrate Judge

was

charged

with

armed

he was convicted by a jury of the lesser charge of

robbery by intimidation.
concludes,

and

From there,

appropriately

so,

the Magistrate Judge
that

a

robbery

by

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

"threatened

use

of

physical

force

another."

See

18

U.S.C.

924 (e) (2) (B) (1)

'violent felony'

§

against

the

person

("[T]he

. . . has as an element the use,

of

term

attempted

use, or threatened use of physical force against the person of

another . . . ."); see also Report and Recommendation,
73, at 9-11.

Doc.

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
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,

247 Ga. App.

173

(2000).

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

against

that

person."

Cooks

v.

United

States,

2015

WL

7069665, at *2 (S.D. Ga. Nov. 13, 2015); see also Report and
Recommendation,

Doc.

73,

at

10-11 n.7.

Thus,

Petitioner's

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 reconsideration

(doc.

15)

For this reason, his motion

is DENIED.

Petitioner also seeks to proceed in forma pauperis on
appeal.

The requirements for litigants seeking to proceed in

forma pauperis on appeal are set forth in 28 U.S.C.

In

addition

to

the

financial

requirements,

§

§ 1915.

1915(a)(3)

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
standard.
(1962).

See Coppedge v. United States,

369 U.S.

438,

445

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,
In

this

1349 (11th Cir. 2001).
case,

frivolous issue.

this

Court

relief.

See Bilal v. Driver,

Petitioner

has

not

presented

any

non-

The Report and Recommendation adopted by

thoroughly explains

why he

is

not

entitled to

Accordingly, Petitioner's appeal is not taken in good

faith, and his motion to proceed on appeal in forma pauperis
(doc.

16)

is therefore DENIED.

ORDER ENTERED at Augusta, Georgia, this c^j^ day of
January,

2 017.

HONORABLE

J.

RANDAL

HALL

UNITED] STATES DISTRICT JUDGE
^•-SOUTHERN DISTRICT

OF

GEORGIA