McClouden, III v. United States of America

Filing 3

REPORT AND RECOMMENDATIONS dismissing re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Herman McClouden, III. Objections to R&R due by 10/3/2016. Signed by Magistrate Judge G. R. Smith on 9/19/2016. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATE SBORO DIVISION
HERMAN MCCLOUDEN, III,
Movant,
Case No. CV616-089
CR609-O 15

V.

UNITED STATES OF AMERICA,
Respondent.

REPORT AND RECOMMENDATION
In McClouden v. United States, CV609-015, Herman McClouden,
III invoked 28 U.S.C. § 2255 to seek, inter alia, resentencing absent an
armed career criminal enhancement. CR609-015, doe. 36 at 6-7. This
Court denied it on the merits, id. at 47, adopted, doe. 51, and he took no
appeal. He has, however, since obtained the Eleventh circuit's
permission to file a successive § 2255 motion. In re McClouden, No. 1613525 (11th cir. July 12, 2016) (copy attached). The Court is
preliminarily reviewing under § 2255 Rule 4.

McClouden's second § 2255 motion fails to meet 28 U.S.C.
§ 2255(h)(2)'s "previously unavailable" claim requirement' because in his
earlier § 2255 proceedings he raised a Johnson claim2 and the
unappealed March 23, 2016 judgment against him is now final. Section
2255(h)(2) blocks jurisdiction over his attempt to re-litigate it now. Doc.
54 (his June 24, 2016, signature-filed § 2255 motion).

See Ziglar v.

United States, - F.Supp. 3d ____, 2016 WL 4257773 at * 5 (M.D. Ala.
Aug. 11, 2016); Burgess v. United States, 2016 WL 4618814 at * 2 (S.D.
Ga. Sept. 6, 2016). And the successiveness grant is not binding. In re

1

See 28 U.S.C. § 2255 (h)(2) ("A second or successive motion must be certified. . . to
contain . . . (2) a new rule of constitutional law, made retroactive to cases on
collateral review by the Supreme court, that was previously unavailable.").
2

He sought then, and seeks now, to exploit the new rule announced in Johnson v.
United States, 576 U.S. -, 135 S. Ct. 2551 (2015), made retroactive by Welch v.
United States, - U.S. -, 136 S. Ct. 1257 (2016), and otherwise triggering a lot of
successive filings. See, e.g., In re Fleur, 824 F.3d 1337 (11th Cir. 2016); In re Hines,
824 F.3d 1334 (11th Cir. 2016), and In re Ricardo Pinder, Jr., 824 F.3d 977 (11th Cir.
2016). The Armed Career Criminal Act (ACCA) -- the statute Johnson addressed -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." It defines
"violent felony" as, among other things, a felony that "otherwise involves conduct
Id. at
that presents a serious potential risk of physical injury to another."
§ 924(e)(2)(B). Johnson found that "residual" clause so vague that it violates due
process. See 135 S. Ct. at 2557.
PJ

Moore, - F.3d -, 2016 WL 4010433 at * 2 (11th Cir. July 27, 2016)).
In fact, the Eleventh Circuit has since ruled that
[u]nder 28 U.S.C. § 2244(b)(1), "[a] claim presented in a second or
successive habeas corpus application under [28 U.S.C] section 2254
that was presented in a prior application shall be dismissed." 28
U.S.C. § 2244(b)(1). We have held that § 2244(b)(1)'s mandate
applies to applications for leave to file a second or successive § 2255
motion. In re Baptiste, No. 16-13959, manuscript op. at 3-4, F.3d -, -, 2016 WL 3752118 (11th Cir. July 13, 2016). We also
have held that a prisoner may not file "what amounts to a motion
for reconsideration under the guise of a separate and purportedly
'new' application" when the new application raises the same claim
that was raised and rejected in the prior application. Id. at 5,
F.3dat
In re Jones, - F.3d -, 2016 WL 4011143 at * 1 (11th Cir. July 27,
2016); see also In re Parker, - F.3d -, 2016 WL 4206373 at * 1 (11th
Cir. Aug. 10, 2016) ("Under In re Baptiste, a later request of a prisoner
who has previously filed a request for authorization to file a second or
successive petition based on the same claim must be dismissed. Because
Parker has already filed a request presenting a claim based on Johnson
v. United States, 576 U.S. ___,135 S. Ct 2551,192 L.Ed.2d 569 (2015) )
we must dismiss his current request, regardless of its merit, since it

The Moore court reminded that a successiveness grant is but a limited
determination, so district courts must decide anew whether a § 2255 movant has
satisfied the statutory successiveness requirements; only after the district court has
done that should it reach the § 2255 motion's merits. Moore, 2016 WL 4010433 at *3
3

raises the same claim as his first request.").' Per Jones and Parker,
McClouden's § 2255 motion must be DISMISSED for want of
jurisdiction.
Applying the Certificate of Appealability (COA) standards set forth
in Brown v. United States, 2009 WL 307872 at * 1-2 (S.D. Ga. Feb. 9,
2009), the Court discerns no COA-worthy issues at this stage of the
litigation, so no COA should issue either. 28 U.S.C. § 2253(c)(1); Rule
11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C.
§ 2255 ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.")

Some Eleventh Circuit judges have dissented from this result. A recent panel
majority responded:
Some decisions from our Court following Baptiste as binding precedent have
also included special concurrences or dissents suggesting that Baptiste may
have been wrongly decided. The central theme of these separate opinions is
their contention that § 2244(b)(1)'s prohibition of a repeat filing based on a
claim previously rejected applies only to § 2254 petitions, not to § 2255
motions. Further, as this argument goes, even if § 2244(b)(1) does apply to
§ 2255 motions, it applies only to claims actually raised in a § 2255 motion in
the district court, not claims repeatedly raised in applications for certification
by this Court to file a successive § 2255 motion. See In re Anderson, - F.3d
- - -, 2016 WL 3947746, at *4..5 (11th Cir. 2016); see also In re
F.3d , , 2016 WL 3878156, at *9 (11th Cir. 2016). Yet, as
Clayton,
cogently and persuasively explained in Baptiste, the above argument fails on
both counts. See Baptiste, 2016 WL 3752118, at *2.
In re Bradford,

F.3d -, 2016 WL 4010437 at * 2 (11th Cir. July 27, 2016).

(emphasis added). Any motion for leave to appeal in forma pauperis
therefore is moot.
SO REPORTED AND RECOMMENDED this / day of
September, 2016.

DSS MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

No. 16-13525-J
IN RE: HERMAN MCCLOUDEN,
Petitioner.

Application for Leave to File a Second or Successive
Motion to Vacate, Set Aside,
or Correct Sentence, 28 U.S.C. § 2255(h)
Before MARCUS, MARTIN, ROSENBAUM, Circuit Judges.
BY THE PANEL:
Pursuant to 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), Herman McClouden
has filed an application seeking an order authorizing the district court to consider a
second or successive motion to vacate, set aside, or correct his federal sentence, 28
U.S.C. § 2255. Such authorization may be granted only if we certify that the
second or successive motion contains a claim involving:
(1) newly discovered evidence that, if proven and
viewed in light of the evidence as a whole, would be
sufficient to establish by clear and convincing evidence
that no reasonable factfinder would have found the
movant guilty of the offense; or

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(2) a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.
28 U.S.C. § 2255(h). "The court of appeals may authorize the filing of a second or
successive application only if it determines that the application makes a prima facie
showing that the application satisfies the requirements of this subsection."

Id.

§ 2244(b)(3)(C); see also Jordan v. Sec 'y, Dept of Corrs., 485 F.3d 1351, 1357-58
(11th Cir. 2007) (explaining that this Court's determination that an applicant has
made a prima fade showing that the statutory criteria have been met is simply a
threshold determination). When a petitioner seeks leave to pursue a successive §
2255 motion under § 2255(h)(2), we have held that a petitioner must demonstrate a
"reasonable likelihood" that they will benefit from a new, retroactive, and
previously unavailable constitutional rule in order to make a prima facie showing
that their application satisfies the requirements of §§ 2244(b) and 2255(h).

See In

re Holladay, 33l F.3d 1169, 1173-74&n.1 (llthCir. 2003).
I
McClouden is a federal prisoner serving a 180-month sentence for unlicensed
dealing in firearms in violation of 18 U.S.C. § 922(a)( 1 )(A) and possessing a firearm
in violation of § 922(g)( 1). Ordinarily, the maximum sentence for McClouden's
unlicensed dealing conviction is 5 years' imprisonment and the maximum sentence
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for a violation of § 922(g)(1) is 10 years' imprisonment.

See 18 U.S.C. §

924(a)(1)-(2). However, the Armed Career criminal Act ("ACCA") mandates that
a defendant receive an enhanced sentence when he has at least three prior qualifying
convictions for a "serious drug offense" or "violent felony." See 18 U.S.C. §
924(e)( 1). The ACCA defines the term "violent felony" as any crime punishable by
a term of imprisonment exceeding one year that:
(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). The first prong of this definition is sometimes referred to
as the "elements clause," while the second prong contains the "enumerated crimes"
and, finally, what is commonly called the "residual clause."
Owens,

United States v.

672 F.3d 966, 968(11th Cir. 2012).

Prior to McClouden's sentencing, a probation officer prepared a Presentence
Investigation Report ("PSR") recommending that McClouden's sentence be
enhanced pursuant to the ACCA. The PSR states that the ACCA enhancement is
required based on McClouden's 2000 Georgia conviction for two counts of burglary
and one count of robbery, and his 2006 Georgia conviction for possessing cocaine
with intent to distribute. At McClouden's sentencing, the sentencing court adopted
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the PSR's recommendation and imposed an ACCA-enhanced sentence.
In his application, McClouden indicates that he wishes to raise one claim in a
second or successive § 2255 motion. He contends that, following the Supreme
Court's decision in Johnson v. United States, 576 U.S. -, 135 S. Ct. 2551, 192
L. Ed. 2d 569 (2015), his ACCA enhancement is no longer valid.
In Johnson, the Supreme Court held that the residual clause of the ACCA is
unconstitutionally vague because it creates uncertainty about how to evaluate the
risks posed by a crime and how much risk it takes to qualify as a violent felony.

Johnson, 576 U.S. at -, 135 S. Ct. at 2557-58, 2563. On April 18, 2016, the
Supreme Court held that Johnson announced a new substantive rule that applies
retroactively to cases on collateral review.

Welch v. United States, 578 U.S.

136 S. Ct. 1257 (2016). As such, Johnson qualifies as a new rule of constitutional
law for purposes of § 2255(h)(2).
In In re Rogers, No. 16-12626 (11th Cir. June 17, 2016), we held that we may
only deny a Johnson-based application when
(1) the sentencing court record demonstrates that the
sentencing court specifically identified three prior
convictions as qualifying as ACCA predicates under the
elements or enumerated crimes clauses, or based on the
"serious drug offense" provision of the ACCA; and/or (2)
under binding precedent, it is clear that the prior
convictions the sentencing court identified categorically
qualify as ACCA predicates under the elements or
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enumerated crimes clauses or, alternatively, the ACCA's
"serious drug offense" provision. When the record does
not make clear that the sentencing court relied solely on
the ACCA's still-valid provisions to classify each
predicate offense and binding precedent does not
otherwise demonstrate that only valid ACCA clauses are
implicated, we apply Descamps v. United States. At that
point, if it is unclear from binding precedent that the state
statute at issue is divisible under Descamps, then the
applicant has made out a prima facie case that his
application contains a Johnson claim under § 2255(h).

Id. slip op. at 3-4.
Here, McClouden has made aprimafacie case that his application contains a

Johnson claim. In Georgia, robbery can be committed in one three of ways: by use
of force; by intimidation, threat or coercion, or placing a person in fear of immediate
bodily injury; or by "sudden snatching." O.C.G.A. § 16-8-40. Where the
defendant commits robbery by sudden snatching, the statute does not require the use
of violent, physical force, see Johnson v. United States, 559 U.S. 133, 138 (2010) 1
but can be committed where, for example, the victim merely observes the defendant
commit larceny, see, e.g., Sweet v. State, 697 S.E.2d 246, 248-49 (Ga. Ct. App.
2010); King v. State, 447 S.E.2d 645, 647 (Ga. Ct. App. 1994). The government
has conceded that point post-Johnson. See United States v. Robinson, No. 14-cr-6,
D.E. 129 at 13 (W.D. Va. Aug. 12, 2015). Accordingly, Georgia robbery does not
categorically qualify as a violent felony following Johnson. And here the PSR does
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not reveal whether McClouden committed robbery involving the use of physical
force or robbery involving sudden snatching. As such, McClouden's robbery may
no longer qualify as an ACCA predicate offense following Johnson.
Likewise, MeClouden's conviction for two counts of burglary may no longer
qualify as ACCA predicate offenses. Georgia law defines burglary as follows:
(b) A person commits the offense of burglary in the first
degree when, without authority and with the intent to
commit a felony or theft therein, he or she enters or
remains within an occupied, unoccupied, or vacant
dwelling house of another or any building, vehicle,
railroad car, watercraft, aircraft, or other such structure
designed for use as the dwelling of another..
(c) A person commits the offense of burglary in the second
degree when, without authority and with the intent to
commit a felony or theft therein, he or she enters or
remains within an occupied, unoccupied, or vacant
building, structure, vehicle, railroad car, watercraft, or
aircraft.
O.G.C.A. § 16-7-1. Georgia burglary does not include "as an element the use,
attempted use, or threatened use of physical force against the person of another."
18 U.S.C. § 924(e)(2)(BXi). Following Johnson, then, a Georgia burglary
conviction could only qualify as an ACCA predicate offense if it qualifies under the
ACCA' s enumerated-crimes clause.
Under Taylor v. United States, 495 U.S. 575, 110 S. Ct. 2143 (1990), an
offense constitutes "burglary" under the ACCA's enumerated-crimes clause "if
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either its statutory definition substantially corresponds to 'generic' burglary, or the
charging paper and jury instructions actually required the jury to find all the
elements of generic burglary in order to convict the defendant," 495 U.S. at 602, 110
S. Ct. at 2160, those being "unlawful or unprivileged entry into, or remaining in, a
building or structure, with intent to commit a crime," id. at 598-99, 110 S. Ct. at
2158. We have acknowledged that the definition of "burglary" under Georgia law
is broader than that of generic burglary.

See United States v. Wade, 458 F.3d 1273,

1278 (11th Cir. 2006). Therefore, Georgia burglary convictions could only qualify
as ACCA predicate offenses if the Georgia burglary statute is divisible. See

Descamps v. United States, - U.S._, 133 S. Ct. 2276 (2013).
We have not addressed whether, following Descamps, Georgia's burglary
statute is divisible. Before Descamps, we held that a Georgia burglary conviction
could qualify as a "violent felony" under the ACCA's enumerated-crimes clause
where a defedant's PSR revealed that a defendant had in fact committed generic
burglary. Wade, 458 F.3d at 1278. However, our decision in Wade has likely been
abrogated by the Supreme Court's recent decision in Mathis v. United States, No.
15-6092, 2016 WL 3434400 (U.S. June 23, 2016).
There, the Supreme Court reiterated that where a statute lists alternative
means of committing a single element such that the element is broader than its
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corresponding element in the generic crime, a conviction under that statute will not
qualify under the ACCA's enumerated-crimes clause. Id In Mathis, for instance,
the Court held that a conviction under Iowa's "burglary" statute does not qualify as
an ACCA predicate offense because it criminalizes unlawful entry into "a broader
range of places" than generic burglary's "building or other structure," including
"any . . . land, water, or air vehicle." Id at *5• Like Iowa's burglary statute,
Georgia's burglary statute criminalizes unlawful entry into any "vehicle, railroad
car, watercraft, or aircraft" O.G.C.A. § 16-7-1. Following Mathis, a burglary
conviction under Georgia law likely no longer qualifies as an ACCA predicate
offense.
Following Johnson, then, McClouden may only have a single ACCA
predicate offense that remains valid. As such, he has met his burden of making a
prima fade case under §§ 2244(b)(3)(A) and 2255(h).

In
We note that on July 7, 2015, McClouden filed an original § 2255 motion in
the district court. On March 23, 2016, the district court entered an order dismissing
the motion. On April 6, McClouden filed a motion for reconsideration, asserting a
Johnson-based challenge to his sentence for the first time. That motion is still

pending.

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When a party files a motion for reconsideration more than ten days after entry
of final judgment, we construe it as a motion for relief from judgment pursuant to
Federal Rule of Civil Procedure 60(b). Mahone v. Ray, 326 F.3d 1176, 1177 n.1
(11th Cir. 2003). In Gilbert v. United States, 640 F.3d 1293 (11th Cir. 2011), we
held that a petitioner may not evade 28 U.S.C. § 2255(h)'s second or successive
motions bar by raising a new challenge to his or her sentence for the first time in a
Rule 60(b) motion. Id. at 1323. Instead, a petitioner must file an application for
authorization to pursue a second or successive motion pursuant to §§ 2244(b)(3)(A)
and 2255(h). As such, McClouden's instant application, and not his Rule 60(b)
motion, is the correct vehicle for raising his Johnson-based challenge, and
McClouden's Rule 60(b) motion will no doubt be denied under Gilbert.

In the

interests ofjudicial economy, we will construe MeClouden's instant application as a
properly filed application for leave to pursue a "second or successive" § 2255
motion.
rM
For the reasons above, McClouden's application for leave to pursue a
second or successive § 2255 motion is GRANTED.

12,