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)

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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

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