Clark v. United States of America

Filing 9

REPORT AND RECOMMENDATIONS of the Magistrate Judge that the Court DISMISS Clark's 1 Motion as untimely. Alternatively, to the extent that the Court reaches the merits of Clark's arguments, it should DENY his Motion. It is also RECOMMEN DED that the Court DENY Clark a Certificate of Appealability and in forma pauperis status on appeal and DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal. Any party seeking to object to this Report and Reco mmendation is ordered 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 2/22/2018). ORDER directing service of the REPORT AND RECOMMENDATIONS of the Magistrate Judge. Signed by Magistrate Judge R. Stan Baker on 2/8/2018. (csr) Modified on 2/8/2018 (csr).

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

DANIEL LEE CLARK,
Movant,

CIVIL ACTION NO.: 5:16-cv-47

v.
UNITED STATES OF AMERICA,

(Case No. 5:04-cr-15)

Respondent.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Nearly thirteen years ago, this Court sentenced Daniel Lee Clark (“Clark”) to 195
months’ imprisonment following his convictions for possession with intent to distribute five
grams or more of cocaine base and possession of a firearm in furtherance of a drug trafficking
crime. Clark, who is currently incarcerated at the Federal Correctional Institution-Williamsburg
in Salters, South Carolina, has now filed a Motion to Vacate, Set Aside, or Correct his Sentence
pursuant to 28 U.S.C. § 2255. (Doc. 42.) 1 Clark contends that the Court must resentence him
following the United States Supreme Court’s decision in Johnson v. United States, ___ U.S. at
___, 135 S. Ct. 2551, 2563 (June 26, 2015). (Id.) However, Johnson only invalidated the Armed
Career Criminal Act’s (“ACCA”) residual clause. Clark has failed to demonstrate that the Court
relied upon the ACCA, much less the Act’s residual clause, in any way during his sentencing
proceedings. I recognize that Clark’s advisory Sentencing Guidelines’ range turned on his

1

The pertinent record documents in this case are filed on the docket of Clark’s criminal case, United
States v. Clark, 5:04-cr-15 (S.D. Ga. Aug. 26, 2004), and many are not included in Clark’s civil docket.
Thus, for ease of reference and consistency, the Court cites to Clark’s criminal docket in this Order and
Report and Recommendation.

classification as a career offender under the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2).
However, the Supreme Court has held that Johnson does not apply to the Guidelines and has
specifically held that the decision does not invalidate Section 4B1.2(a)(2)’s definition of a “crime
of violence.”

Beckles v. United States, ____ U.S. ____, 137 S. Ct. 886 (Mar. 6, 2017).

Moreover, Johnson has no application to Clark’s conviction for possessing a firearm in
furtherance of a drug trafficking crime under 18 USC § 924(c).
Because Clark does not raise a valid Johnson claim, he filed his Motion years outside of
the one-year statute of limitations of 28 U.S.C. § 2255(f). Thus, I RECOMMEND that the
Court DISMISS Clark’s Motion, (doc. 42), as untimely. Alternatively, to the extent that the
Court reaches the merits of Clark’s arguments, it should DENY his Motion.

Further, I

RECOMMEND that the Court DENY Clark a Certificate of Appealability and in forma
pauperis status on appeal and DIRECT the Clerk of Court to CLOSE this case and enter the
appropriate judgment of dismissal.
BACKGROUND
On August 26, 2004, a grand jury for this District charged Clark with: possessing
approximately 7.8 grams of crack cocaine with intent to distribute, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii) (Count One); possessing a firearm as a convicted felon, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1) (Count Two); and possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count Three).
(Doc. 2.) The Government’s Penalty Certification stated that Clark faced not less than five and
no more than forty years’ imprisonment as to Count One; not less than fifteen years nor more
than life imprisonment as to Count Two; and a concurrent sentence of not less than five nor more
than life imprisonment as to Count Three. (Doc. 3.)

2

However, Clark and his trial counsel were able to negotiate a plea agreement with the
Government whereby Clark agreed to plead guilty to Counts One and Three in exchange for the
Government moving to dismiss Count Two of the Indictment. (Doc. 19.) On November 23,
2004, Clark appeared before the Honorable William T. Moore, Jr., for a change of plea, or Rule
11, hearing. (Doc. 16.) At the Rule 11 hearing, Judge Moore engaged in an extensive plea
colloquy with Clark to ensure that Clark fully understood his rights and the charges against him
and that Clark made his decision to plead guilty knowingly, voluntarily, and intentionally. (Plea
Hr’g Tr.) Among other things, Judge Moore advised Clark that the Court could impose a
sentence of five to forty years’ imprisonment as to a conviction for Count One and five years to
life imprisonment as to a conviction for Count Three. (Id. at p. 15.) Judge Moore also made
certain that Clark had discussed the Sentencing Guidelines with his counsel and that he
understood generally the operation of the Guidelines. (Id. at pp. 15–17.) Prior to pleading
guilty, Clark testified that no one had told him exactly what sentence he would receive, and that
he understood the Court was not bound by any estimate of a sentence that Clark may have
received, and that he could not withdraw his guilty plea simply because his sentence was more
severe than he anticipated. (Id. at pp. 16–17, 20.)
Special Agent Stephen Tinsley of the Drug Enforcement Administration testified to a
factual basis for the plea of guilty. (Id. at pp. 22–24.) Agent Tinsley recounted the events that
led to the charges against Clark. (Id.) Acting in an undercover capacity, Agent Tinsley arranged
to purchase crack cocaine from Clark at a McDonald’s restaurant in Pierce County, Georgia. (Id.
at p. 23.) When Clark arrived at the McDonald’s, officers found him to be in possession of 7.8
grams of crack cocaine and a .22 caliber pistol. (Id. at pp. 23–24.) Clark admitted to the truth of
Agent Tinsley’s testimony. (Id. at p. 24.)

3

Prior to Clark’s sentencing hearing, United States Probation Officer Marty Bragg
prepared a Pre-Sentence Investigation report (“PSI”). Probation Officer Bragg detailed Clark’s
offense conduct and criminal history and calculated Clark’s statutory penalties, as well as his
advisory Guidelines’ range. During his presentence interview with Officer Bragg, Clark freely
admitted to possessing 7.8 grams of crack cocaine and to possessing a firearm in furtherance of
that drug trafficking crime. (PSI, ¶ 11.)
Officer Bragg concluded that Clark was a career offender under U.S.S.G. § 4B1.1
because: (1) Clark was at least eighteen years old at the time he committed the offenses in this
case; (2) the offense (possession of five grams or more of crack cocaine with intent to distribute)
was a controlled substance offense; and (3) Clark had at least two prior felony convictions of
either a crime of violence or a controlled substance offense, as he was previously convicted of
sale of cocaine and aggravated assault of a law enforcement officer. (Id. at ¶ 23.) Officer Bragg
calculated Clark’s Guidelines’ range under Section 4B1.1(c)(2), because Clark had two counts of
conviction and one of those counts was for violating 18 U.S.C. § 924(c). (Id. at ¶¶ 26–27.)
Given Clark’s three-level decrease for acceptance of responsibility, the Table at U.S.S.G. §
4B1.1(c)(3) provided a Guidelines’ range of 262 to327 months’ imprisonment under Section
4B1.1(c). (Id.) 2

2

The Guidelines stated that the Court should apply “the greater of” the sentencing range of the two
alternatives: the method at Subsection (c)(2)(A) or the table at Subsection (c)(3). U.S.S.G. § 4B1.1(c)(2)
(emphasis supplied). The method of reaching a sentencing range under Subsection 4B1.1(c)(2)(A) called
for a lower sentencing range than the range called for by the table at Subsection (c)(3). As Probation
Officer Bragg explained, given an offense level of 31, the Guidelines would have called for a Guidelines’
range of 188 to235 months’ imprisonment as to Count One. (PSI, ¶ 27.) The statutorily required term of
imprisonment for the possession of a firearm in furtherance of a drug trafficking crime charge was 60
months’ imprisonment, not to be run concurrently. (Id.) Thus, the method at Subsection 4B1.1(c)(2)(A)
resulted in a sentence range of 248 (188 plus 60) to 295 (235 plus 60) months’ imprisonment. (Id.)
However, Because the table at Subsection (c)(3) provided a greater sentencing range, that sentence
applied.
4

Clark’s counsel filed numerous objections to the PSI. (Id. at pp. 18–22.) He argued,
among other things, that under United States v. Booker, 543 U.S. 220 (2005), it would be
unconstitutional to apply Section 4B1.1(c)(3) to Clark. (Id.) Counsel also argued that Clark’s
criminal history category of VI significantly overrepresented the seriousness of his prior
offenses. (Id.)
On March 14, 2005, Clark appeared before Judge Moore for a sentencing hearing.
Clark’s counsel reiterated his argument that the career offender designation under the Guidelines
violated Clark’s Sixth Amendment rights under Booker. (Sent. Hr’g Trans., pp. 4–5.) Judge
Moore overruled Clark’s Booker objection. Judge Moore ruled that Eleventh Circuit authority
and the advisory Guidelines made clear that the Court was allowed to make factual findings
regarding the defendant’s criminal record without a jury finding or an admission by the
defendant. (Id. at pp. 5–6.)
Clark fared much better with his objection that his criminal history category
overrepresented the seriousness of his history. Judge Moore expressed the Court’s concerns
regarding the overrepresentation, given Clark’s youth at the time of his offenses and the facts
underlying his offenses.

(Id. at pp. 7–8.)

After hearing from counsel for Clark and the

Government, Judge Moore found that “defendant is a career offender” but sustained Clark’s
criminal history objection. (Id. at pp. 8–12.) Judge Moore held that Clark’s “criminal history
category significantly over-represents the seriousness of the defendant’s criminal history and the
likelihood that the defendant will commit further crimes.”

(Id. at p. 13.)

Based on that

objection, Judge Moore departed downward to find a Guidelines’ range of 135 to168 months’
imprisonment for the crack cocaine charge plus 60 months on the possession of a firearm charge,
resulting in a final total range of 195 to 228 months’ imprisonment. (Id. at p. 12.) Judge Moore

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sentenced Clark at the bottom of that range: a total sentence of 195 months’ imprisonment
consisting of 135 months’ imprisonment for his crime of possession of crack cocaine with intent
to distribute (Count One) and a consecutive 60 months’ imprisonment for his crime of possession
of a firearm in furtherance of a drug trafficking crime (Count Three). (Id. at p. 13; Doc. 20.)
Pursuant to the plea agreement, Judge Moore dismissed the remaining charge of possession of a
firearm by a convicted felon (Count Two). (Doc. 20.)
Clark appealed this sentence to the United States Court of Appeals for the Eleventh
Circuit. (Doc. 21.) First, Clark reiterated his Booker argument and contended Section 4B1.1
requires the Court to impermissibly find facts beyond the existence of prior convictions. See
United States v. Clark, 163 F. App’x 799, 801–02 (11th Cir. 2006). The Eleventh Circuit
rejected this argument for several reasons.

Id.

Clark also argued that his sentence was

unreasonable under 18 U.S.C. § 3553(a). The Eleventh Circuit denied this argument as well. Id.
at 802.

The Court noted Judge Moore’s downward departure in Clark’s criminal history

category and stated that, given Clark’s resulting sentence that was seventy (70) months lower
than the bottom of the Probation Officer’s recommended Guidelines’ range and one-quarter of
the statutory maximum for his crime, “Clark is the beneficiary of a favorable guidelines
calculation.” Id. For this and other reasons, the Eleventh Circuit affirmed Clark’s sentence.
However, still unsatisfied with his “favorable” sentence, Clark filed a motion to reduce
sentence due to retroactive changes to the Guidelines’ drug quantity table for crack cocaine.
(Doc. 32.)

The Court denied this motion, explaining, “[t]he defendant’s motion is denied

because his offense level is determined based on his designation as a career offender and not the
drug quantity table.” (Doc. 33.) Clark appealed that decision, arguing that, while Judge Moore
sentenced Clark as a career offender, he received a downward departure for over-representation

6

of criminal history, and thus, his sentence was not based on the career offender Guideline. The
Eleventh Circuit rejected this argument and affirmed the denial of Clark’s motion. (Doc. 37.)
In his instant Section 2255 Motion, Clark argues that the Court must revisit his sentence
because the Court sentenced him under the residual clause of the ACCA, which the Supreme
Court invalidated in Johnson. (Doc. 42, pp. 1–4.) He also contends his prior convictions cannot
be considered crimes of violence under the ACCA’s “force clause.”

(Id. at pp. 7–8.)

Additionally, Clark claims he was convicted for possession of a firearm during and in relation to
a crime of violence under 18 U.S.C. § 924(c). Clark reasons that, because Section 924(c)(3)’s
definition of a “crime of violence” is substantially similar to the ACCA’s residual clause, his
conviction relying on that definition must be invalidated under Johnson. (Id. at pp. 6–7.)
The Government responded to Clark’s Motion and explains that his arguments
misconstrue the statutes under which he was actually convicted and sentenced. (Doc. 44.) The
Government contends that Johnson provides Clark no relief because he was not convicted of
possession of a firearm by a convicted felon under the ACCA or possession of a firearm during
and in relation to a crime of violence under 18 U.S.C. § 924(c). (Id.) Rather, the Government
explains Clark was convicted of possessing a firearm in furtherance of a drug trafficking crime.
(Id.) However, the Government notes that Clark’s Guidelines’ range did hinge on his status as a
career offender under Section 4B1.2.
Clark filed a Reply to the Government’s response where he appeared to challenge his
Guidelines’ career offender designation. 3 (Doc. 45.) Following Beckles, the Government filed a
Supplemental Response maintaining that, to the extent that Clark attempts to use Johnson to
challenge his Guidelines’ career offender designation, Beckles forecloses that argument.
3

Clark filed a Motion to stay the proceedings in this case pending the Supreme Court’s decision in
Beckles. (Doc. 46.) The Court granted Clark’s Motion. (Doc. 47.)
7

(Doc. 48). Clark filed a Reply, arguing that he was “wrongfully sentenced by the Court as a
career criminal due to the fact that the Court erroneously used his prior conviction for aggravated
assault from the State of Georgia, when in fact aggravated assault is not considered a violent
offense under the State of Georgia Laws and Statutes.” (Doc. 49, p. 2.)
DISCUSSION
I.

Whether Clark Timely Filed his Petition
To determine whether Clark timely filed his Motion, the Court must look to the

applicable statute of limitations period. Motions made pursuant to 28 U.S.C. § 2255 are subject
to a one-year statute of limitations period. 28 U.S.C. § 2255(f). This limitations period runs
from the latest of:
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by
governmental action in violation of the Constitution or laws of the
United States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the
Supreme Court, if that right has been newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.
Id.
Clark was sentenced on March 14, 2005, and the Court entered final judgment on March
16, 2005. 4

(Doc. 20.).

Clark filed a Notice of Appeal, and the Eleventh Circuit entered

judgment affirming his sentence on February 2, 2006. (Doc. 29.) Thus, Clark had until February
4

Though Clark moved for and was denied a sentence reduction, his judgment of conviction became final
on March 16, 2005, his original date of conviction. Even if Clark’s motion had been successful, the
Eleventh Circuit has held that a “sentence modification does not constitute a new judgment of conviction
that restarts § 2255’s statute of limitations clock.” Murphy v. United States, 634 F.3d 1303, 1309 (11th
Cir. 2011).
8

2, 2007, to file a timely Section 2255 motion. 28 U.S.C. § 2255(f)(1). Clark did not execute his
Section 2255 Motion until June 23, 2016, which was more than nine years after the expiration of
the applicable statute of limitations period. Consequently, Clark’s Motion is untimely under
Section 2255(f)(1).
Clark does not argue that he is entitled to equitable tolling or to the statute of limitations
periods set forth in Sections 2255(f)(2) or (4). Rather, he argues that he timely filed his Motion
under Section 2255(f)(3) because Johnson is a new rule of constitutional law made retroactive to
cases on collateral review. (Doc. 42, pp. 10–11.) Indeed, in Welch v. United States, ___ U.S.
___, 136 S. Ct. 1257, 1265 (Apr. 18, 2016), the Supreme Court held that Johnson is a substantive
decision which applies retroactively to cases on collateral review.

Thus, if Clark actually

asserted a right newly recognized by the Supreme Court in Johnson, Section 2255(f)(3) could
allow Clark to bring his Section 2255 Motion. However, as discussed in Sections II and III
below, Clark does not bring a cognizable Johnson claim. Because Clark does not bring a valid
Johnson claim, he cannot rely upon Johnson to excuse the untimeliness of his Section 2255
Motion.
For all of these reasons, the Court should DISMISS Clark’s Motion as untimely.
II.

Whether Johnson Applies to Clark’s Guidelines Career Offender Sentence
Enhancement
In Johnson, the Supreme Court held that “imposing an increased sentence under the

residual clause of the ACCA violates the Constitution’s guarantee of due process[.]” ___ U.S. at
___, 135 S. Ct. at 2563. The ACCA provides enhanced penalties for defendants who are
(1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g) and
(2) have “three prior convictions . . . for a violent felony or a serious drug offense, or both.”
18 U.S.C. § 924(e)(1) (emphasis added). The residual clause of the ACCA defines “violent

9

felony” as, inter alia, a felony that “otherwise involves conduct that presents a serious potential
risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court
found the “residual clause” so vague as to violate due process. See ___ U.S. at ___, 135 S. Ct. at
2557.
The “crime of violence” definition formerly contained within the Sentencing Guidelines’
career offender enhancement provision is identical to the residual clause language found
unconstitutional in Johnson.

U.S.S.G. § 4B1.2(a)(2) (2004).

Despite this similarity, the

Supreme Court held in Beckles that the Johnson holding does not apply to the residual clause of
the Sentencing Guidelines. In Beckles, the petitioner was arrested for being a felon in possession
of a firearm, in violation of 18 U.S.C. § 922(g). “Due to multiple prior felonies, Beckles[’]
violation of 18 U.S.C. § 922(g) subjected him to the enhanced penalty provision of 18 U.S.C.
§ 924(e)(1)[,] and the district court found him to be an armed career criminal pursuant to that
statute.” United States v. Beckles, 565 F.3d 832, 841 (11th Cir. 2009). “This finding, in turn,
qualified Beckles for a sentence enhancement under [Section 4B1.4 of the Sentencing
Guidelines].” Id. Section 4B1.4 of the Sentencing Guidelines “instructs that the appropriate
offense level is . . . [inter alia] the offense level described in § 4B1.1, if applicable.” Id. at 841–
42. “Section 4B1.1, in turn, applies if”:
(1) the defendant was at least eighteen years old at the time the defendant
committed the instant offense of conviction; (2) the instant offense of conviction
is a felony that is either a crime of violence or a controlled substance offense; and
(3) the defendant has at least two prior felony convictions of either a crime of
violence or a controlled substance offense.
Id. at p. 842 (citing U.S.S.G. § 4B1.1(a) (emphasis supplied)). The term “crime of violence”
previously included “any offense under . . . state law, punishable by imprisonment for a term
exceeding one year, that . . . involves conduct that presents a serious potential risk of physical

10

injury to another.” U.S.S.G. § 4B1.2(a) (2004). “At [Beckles’] sentencing, the district court
found that § 4B1.1 was applicable . . . reasoning that two of Beckles[’] prior felony convictions
were for qualified controlled substances offenses, and the current 18 U.S.C. § 922(g) conviction
[for being a felon in possession of a firearm] was for a ‘crime of violence’” Id.
In Beckles’ subsequent Section 2255 motion, he “claimed that he was improperly
sentenced as a career offender under U.S.S.G. § 4B1.1, [arguing that] his conviction for
possession of a sawed-off shotgun was not a ‘crime of violence.’” Beckles v. United States, 579
F. App’x 833, 833 (11th Cir. 2014), vacated, Beckles, ___ U.S. at ___, 137 S. Ct. at 886. The
Eleventh Circuit Court of Appeals denied Beckles’ Section 2255 motion, finding Johnson
inapplicable to the Sentencing Guidelines. Beckles subsequently filed a petition for certiorari in
the United States Supreme Court, again contending that the Sentencing Guidelines’ residual
clause is void for vagueness under Johnson. The Supreme Court granted certiorari and affirmed
the decision of the Eleventh Circuit, holding that “the advisory Sentencing Guidelines, including
§ 4B1.2(a)’s residual clause, are not subject to a challenge under the void-for-vagueness
doctrine.” Id., ___ U.S. at ___, 137 S. Ct. at 896. The Court reasoned that, unlike the ACCA,
“[t]he advisory Guidelines [ ] do not implicate the twin concerns underlying vagueness
doctrine—providing notice and preventing arbitrary enforcement.” 5 Id., ___ U.S. at ___, 137 S.
Ct. at 894. The Court further distinguished the Guidelines from the ACCA because the ACCA
requires sentencing courts to increase a defendant’s prison term from a statutory maximum of 10
years to a minimum of 15 years, whereas the Guidelines are advisory. Id., ___ U.S. at ___, 137
5

Specifically, the Supreme Court found that “even perfectly clear Guidelines could not provide notice to
a person who seeks to regulate his conduct so as to avoid particular penalties within the statutory range.”
Beckles, ___ U.S. at ___, 137 S. Ct. at 894. As to arbitrary enforcement, the Guidelines “do not regulate
the public by prohibiting any conduct or by ‘establishing minimum and maximum penalties for [any]
crime.’” Id.,
U.S. at
, 137 S. Ct. at 895 (citing Mistretta v. United States, 488 U.S. 361, 396,
(1989)). “Rather, the Guidelines advise sentencing courts how to exercise their discretion within the
bounds established by Congress.” Id.
11

S. Ct. at 892. Therefore, although the Sentencing Guidelines’ residual clause and the ACCA’s
residual clause are identical, the Sentencing Guidelines are not subject to a void-for-vagueness
challenge under Johnson because the Guidelines “merely guide the district courts’ discretion[.]”
Id., ___ U.S. at ___, 137 S. Ct. at 894.
As laid out above, the Court deemed Clark a career offender under U.S.S.G. § 4B1.1(a)
due to his prior conviction for sale of cocaine and aggravated assault of a law enforcement
officer. Clark contends that the Court should resentence him without that designation due to the
decision in Johnson. However, the Supreme Court’s decision in Beckles entirely forecloses this
argument. Under Beckles, Johnson has no applicability to the Guidelines. Therefore, Clark
cannot use Johnson to challenge the Court’s Guidelines’ calculation.
Moreover, despite his contentions to the contrary, Clark was not convicted under the
ACCA. To be sure, Count Two of the Indictment charged Clark with being a felon in possession
of a firearm and sought the enhanced penalties under the ACCA on that charge. (Doc. 1.)
However, pursuant to Clark’s plea agreement, the Court dismissed that Count. Clark’s only
convictions were for possession with intent to distribute cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(B)(iii), and possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A). The ACCA played no part whatsoever in
Clark’s conviction or sentence.
For all of these reasons, the Court should DENY Clark’s claim that Johnson invalidates
his Guidelines’ career offender classification and resulting sentence. 6

6

In his most recent pleading, Clark also claims that the Court should not have classified him as a career
offender because his aggravated assault of a law enforcement officer does not meet the definition of a
“crime of violence.” (Doc. 49.) This claim does not validly rely upon Johnson, and Clark does not raise
any other reason why this claim should not be barred by Section 2255(f)’s statute of limitations. Thus,
the Court need not reach the merits of this claim, because it is untimely. Moreover, this claim is
procedurally defaulted, as Clark failed to raise it on direct appeal. “Generally, if a challenge to a
12

II.

Whether Johnson Applies to Clark’s Section 924(c) Conviction
Alternatively, Clark cites Johnson to challenge his Section 924(c) conviction under Count

Three of the Indictment. Distinct from Section 924(e)(1) of the ACCA, Section 924(c)(1)(A)
provides for a separate consecutive sentence if any person uses or carries a firearm during and in
relation to a “any crime of violence or drug trafficking crime.” 18 U.S.C. § 924(c)(1)(A)
(emphasis added). For the purposes of Section 924(c), Section 924(c)(3) defines “crime of
violence” as an offense that is a felony and:
(A) has an element the use, attempted use, or threatened use of
physical force against the person or property of another, or
(B) that by its nature, involves a substantial risk that physical force
against the person or property of another may be used in the course of
committing the offense.
18 U.S.C. § 924(c)(3). The former clause is commonly referred to as the “use of force” clause
and the latter clause is known as the “risk of force” clause. Clark argues that the risk of force
clause’s definition of “crime of violence” so echoes the ACCA’s residual clause’s definition of
“violent felony” that Johnson invalidates the risk of force clause, too.
However, Section 924(c)(3)’s definition of “crime of violence,” much less the risk of
force clause, played no part whatsoever in Clark’s conviction and sentence. He was not charged,
conviction or sentence is not made on direct appeal, it will be procedurally barred in a § 2255 challenge.”
United States v. Montano, 398 F.3d 1276, 1279–80 (11th Cir. 2005) (citing Mills v. United States, 36
F.3d 1052, 1055 (11th Cir. 1994)). Additionally, even if the Court did reach the merits of this claim, it is
a loser. Courts have repeatedly found that a conviction for aggravated assault of a law enforcement
officer qualifies as a “crime of violence” under the version of Section 4B1.2(a) applicable at Clark’s
sentencing. See United States v. Smith, 417 F. App’x 911, 917 (11th Cir. 2011); Merritt v. United States,
No. CR408-205, 2011 WL 221864, at *2 (S.D. Ga. Jan. 20, 2011), report and recommendation adopted,
No. CR408-205, 2011 WL 1557996 (S.D. Ga. Apr. 25, 2011). Further, to the extent it is relevant, the
current version of Section 4B1.2 enumerates “aggravated assault” as a crime of violence. Moreover,
Clark’s unsupported claim that aggravated assault is not a crime of violence under Georgia law, (doc. 49,
p. 1), is unavailing. United States v. McKnight, 154 F. App’x 134, 136 (11th Cir. 2005) (state’s
characterization of crime as non-violent is “immaterial” as federal law determines the proper application
of the federal Sentencing Guidelines) (citing United States v. Ayala-Gomez, 255 F.3d 1314 (11th Cir.
2001)).

13

much less convicted, of possessing a firearm in furtherance of crime of violence. Rather, as the
Indictment makes clear, Clark was charged with possessing a firearm in furtherance of a drug
trafficking crime. (Doc. 1.) In Count Three, the grand jury alleged:
On or about June 2, 2004, in Pierce County, in the Southern District of Georgia,
the defendant DANIEL LEE CLARK did knowingly and intentionally possess a
firearm, to wit: a Davis Model OM-22 .22 magnum caliber pistol, serial no.
541363, in furtherance of a drug trafficking crime for which he may be
prosecuted in a court of the United States, that is, the possession with intent to
distribute cocaine base (crack), a Schedule II controlled substance, as charged in
Count One herein, in violation of Title 18, United States Code, Section
924(c)(1)(A).
(Doc. 2, p. 2 (emphasis supplied).) Clark pleaded guilty to this Count, as well as the drug
trafficking crime alleged in Count One. The statute clearly defines a “drug trafficking crime” as
“any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the
Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46.”
18 U.S.C. § 924(c)(2). Clark’s possession of approximately 7.8 grams of crack cocaine with
intent to distribute meets this definition. Consequently, regardless of the validity of Section
924(c)’s risk of force clause, Clark’s Section 924(c) conviction unquestionably survives
Johnson. 7 McKay v. United States, No. 16-15377-D, 2017 WL 3597200, at *2 (11th Cir. Apr.
17, 2017) (“Here, McKay was convicted of using or carrying a firearm during or in relation to a
drug-trafficking crime. Thus, even assuming arguendo that Johnson is somehow applicable to
§ 924(c), his conviction on this count does not raise any residual clause issues regarding
§ 924(c)’s crime-of-violence definition.”); see also Navarro v. United States, 679 F. App’x 973,

7

Further, even if the “risk of force” clause had played a role in Clark’s case, the Eleventh Circuit has
held that the clause is not invalidated by Johnson. Ovalles v. United States, 861 F.3d 1257, 1259 (11th
Cir. 2017) (“Johnson does not apply to or invalidate § 924(c)(3)(B)[.]”).

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974 (11th Cir. 2017); United States v. Parnell, 652 F. App’x 117, 122 (3d Cir. 2016) (“Johnson
does not call into question the statute’s unambiguous definition of ‘drug trafficking crime.’”).
Thus, the Court should DENY Clark’s claim that Johnson invalidates his Section 924(c)
conviction.
III.

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

Appealability. Though Clark 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.
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).

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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 the pleadings 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 Clark a Certificate of Appealability, Clark is
advised that he “may not appeal the denial but may 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 Clark in forma pauperis status on appeal.

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CONCLUSION
Based on the foregoing, I RECOMMEND that the Court DISMISS Clark’s Motion,
(doc. 42), as untimely. Alternatively, to the extent that the Court reaches the merits of Clark’s
arguments, I RECOMMEND the Court DENY his Motion. I also RECOMMEND the Court
DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of
dismissal and DENY Clark a Certificate of Appealability and 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
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.

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The Court DIRECTS the Clerk of Court to serve a copy of this Report and
Recommendation upon the parties.
SO ORDERED and REPORTED and RECOMMENDED, this 8th day of February,
2018.

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

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