Perkins v. United States of America

Filing 23

REPORT AND RECOMMENDATIONS re 20 MOTION to Set Aside Judgment Sentence Pursuant to § 2255 filed by Herbert Isaac Perkins by Magistrate Judge Jerry H. Ritter. Objections to R&R due by 11/9/2021. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (cd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
HERBERT ISAAC PERKINS,
Petitioner,
v.

CV 16-0714 KWR/JHR
CR 07-1010 KWR

UNITED STATES OF AMERICA,
Respondent.

PROPOSED FINDINGS AND RECOMMENDED DISPOSITIONS
THIS MATTER comes before the Court on Petitioner Herbert Isaac Perkins’ Successive
Motion Pursuant to 28 U.S.C. § 2255 [Doc. 20], filed July 9, 2020. Pursuant to 28 U.S.C. § 636(b),
presiding District Judge Kea W. Riggs referred this case to me “to conduct hearings, if warranted,
including evidentiary hearings, and to perform any legal analysis required to recommend to the
Court an ultimate disposition of the case.” [Doc. 17]. Having thoroughly reviewed the parties’
submissions and the relevant law, I recommend the Court deny the Motion with prejudice.
I.

BACKGROUND
Perkins was convicted after a jury trial of multiple crimes including violation of 28 U.S.C.

§§ 1151 and 1152 (Hobbs Act Robbery), and this Court sentenced him to a life term imprisonment.
[CR Docs. 1 82, 84, 107-08]. The Tenth Circuit affirmed his convictions on direct appeal, and the
Supreme Court denied his petition for writ of certiorari. [CR Docs. 113-14, 140, 152-53].
Perkins filed his first § 2255 motion on October 15, 2010, contending ineffective assistance
of counsel; that motion was denied with prejudice. [CR Docs, 144, 152-53]. Perkins filed this

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All citations to “CR Doc.” Refer to documents filed in the criminal case: 1:07-cr-01010-KWR-1.

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second motion on June 26, 2016, asserting that the 2015 ruling in Johnson v. United States, 576
U.S. 591 (2015) invalidated his convictions and sentence. [See Doc. 1; cf. CR Docs. 144]. The
district court held that the 2016 petition was Perkins’ second § 2255 motion and that it lacked
jurisdiction. [Doc. 5, pp. 2-3]. In the interest of justice, the district court transferred the petition to
the United States Court of Appeals for the Tenth Circuit. [Id., p. 5].
Upon review, the Tenth Circuit asked Perkins to address implications of United States v.
Davis, 139 S.Ct. 2319 (2019) and United States v. Bowen, 936 F.3d 1091 (10th Cir. 2019). [Doc.
9]. After briefing, the Tenth Circuit granted partial relief authorizing a second or subsequent
petition “limited to challenges of his § 924(c) convictions and sentence and to the enhancement of
his sentence under the ACCA.” [Doc. 13, p. 4]. Perkins filed his successive petition on July 9,
2020. [Doc. 20]. The United States filed a response on July 30, 2020. [Doc. 21]. In reply, Perkins
filed a supplemental brief on April 29, 2021. [Doc. 22].
Perkins was originally convicted of one count of Interference with Commerce by Threats
or Violence in violation of 18 U.S.C. §§ 1151 and 1152 (Hobbs Act robbery), two counts of
Discharging a Firearm During and in Relation to a Crime of Violence in violation of 18 U.S.C. §
924(c) (each predicated on the Hobbs Act robbery), and one count of being a Felon in Possession
of Ammunition in violation of 18 U.S.C. §§ 922(g)(1)). [CR Docs. 82, 84, 107-08]. Perkins
sentence for Felon in Possession of Ammunition sentence was enhanced under 18 U.S.C. § 924(e)
due to prior convictions for armed robbery (firearm enhancement), conspiracy to committed armed
robbery (firearm enhancement), aggravated battery (deadly weapon) and escape from jail. [CR
Doc.2; Doc. 20, pp. 16-17, (citing PSR, p. 14)].
In this petition, Perkins raises three grounds for federal habeas relief. First, he argues that
his Hobbs Act robbery conviction is invalid. [Doc. 20, pp. 9-15]. He next argues that his two §

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924(c) convictions are invalid because the predicate crime of violence, Hobbs Act robbery, is no
longer a crime of violence after Davis. [Doc. 20, pp. 15-16]. Then, citing Johnson, he challenges
the predicate for his § 924(e) sentence enhancement: “armed robbery, conspiracy to commit armed
robbery, and aggravated battery are not crimes of violence [sic “violent felonies”].” [Doc. 20, p.
16-17].
The United States responded, first by noting that the Tenth Circuit did not authorize Perkins
to reargue his Hobbs Act robbery conviction. [Doc. 21, p. 8]. The United States next argues that
Hobbs Act robbery is categorically a crime of violence under § 924(c)’s elements clause and thus
unaffected by Davis’ invalidation of the residual clause. [Id., pp. 9-11]. Lastly, the United States
argues that the predicate offenses for Perkins’ § 924(e) enhancement are violent felonies even
absent the unconstitutional residual clause. [Id., pp. 11-14].
In Perkins’ supplemental brief, he discusses recent cases from other circuits and an
unpublished Tenth Circuit decision for the proposition that Hobbs Act robbery is not a “crime of
violence” as defined in the United States Sentencing Guidelines § 4B1.2(a). [Doc. 22]; see also
United States v. Cuthbertson, 833 F. App’x 727, 729 (10th Cir. 2020).
II.

STANDARD OF REVIEW
Section 2255 provides:
A prisoner in custody under a sentence of a court established by Act of Congress
claiming the right to be released upon the ground that the sentence was imposed in
violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack, may
move the court which imposed the sentence to vacate, set aside, or correct the
sentence.

28 U.S.C. § 2255(a).
III.

ANALYSIS

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a. Hobbs Act robbery conviction
Perkins was convicted of one count of Interference with Commerce by Threats or Violence
in violation of 18 U.S.C. §§ 1151 and 1152 (Hobbs Act robbery). [CR Doc. 107]. His second or
successive § 2255 petition begins with the argument that his Hobbs Act robbery conviction is
invalid. [See Doc. 20, pp. 9-15]. The Tenth Circuit authorized the new petition “limited to
challenges to his § 924(c) convictions and sentence and to the enhance of his sentence under the
ACCA.” [Doc. 13, p. 4]. The Tenth Circuit did not authorize another challenge to the Hobbs Act
robbery conviction, and a district court does not have jurisdiction to address the merits of a second
or successive § 2255 claim until the Tenth Circuit has granted the required authorization. In re
Cline, 531 F.3d 1249, 1251 (10th Cir. 2008) (per curiam), see 28 U.S.C. § 2255(h). Because this
is a second or successive § 2255 petition, and the Tenth Circuit did not grant the required
authorization, this Court does not have jurisdiction to address the merits of the Hobbs Act robbery
challenge.
b. § 924(c) Convictions
Perkins was convicted of two counts of Discharging a Firearm During and in Relation to a
Crime of Violence in violation of 18 U.S.C. § 924(c), the underlying crime of violence being
Hobbs Act robbery. [CR Docs. 2, 107]. Perkins asserts that Hobbs Act robbery is no longer a crime
of violence after Davis. [Doc. 20, p. 16]. His argument should be rejected.
For this purpose, the definition of “crime of violence” has two independent parts known as
the “elements” clause and the “residual” clause:
For purposes of this subsection the term ‘crime of violence’ means 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

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(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). In Davis, the Supreme Court held that the residual clause, § 924(c)(3)(B),
is unconstitutionally vague. 139 S.Ct. at 2336. The holding in Davis does not extend to the
elements clause, § 924(c)(3)(A). See United States v. Nguyen, 834 F. App’x 791, 792 (10th Cir.
2021) (unpublished). It is settled law in the Tenth Circuit that Hobbs Act robbery is categorically
a crime of violence under the elements clause of § 924(c)(3)(A). See id. (citing United States v.
Melgar-Cabrera, 892 F.3d 1053, 1065 (10th Cir. 2018)); see also United States v. Tyree, 757 F.
App’x 704, 707 (10th Cir. 2018) (unpublished). Because Hobbs Act robbery is categorically a
crime of violence under the elements clause, Perkins cannot obtain relief under Davis.
c. § 924(e) Sentence Enhancement
Perkins was convicted of one count of being a Felon Possession of Ammunition in violation
of 18 U.S.C. §§ 922(g)(1); the sentence for that conviction was enhanced under 18 U.S.C. § 924(e).
Perkins argues the sentence enhancement is invalid under Johnson. His argument should be
rejected.
Under § 924(e), a person who violated § 922(g) faces a more severe punishment if he also
has three or more previous convictions for a violent felony or a serious drug offense. See 18 U.S.C.
§ 924(e). For this purpose, a “violent felony” is defined by § 924(e)(2)(B) which, similar to §
924(c), contains containing independent “elements” and “residual” clauses:
The term ‘violent felony’ means any crime punishable by imprisonment for a term
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).
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In Johnson, the Supreme Court struck down the residual clause language of §
924(e)(2)(B)(ii) as unconstitutionally vague. 576 U.S. at 593-606. However, the Johnson Court
held that the remaining aspects of a violent felony were unaffected by its holding on the residual
clause. Id. at 606.
Perkins’ sentence for his Felon in Possession conviction was enhanced based on prior
convictions for armed robbery (firearm enhancement) and conspiracy to committed armed robbery
(firearm enhancement), aggravated battery (deadly weapon) and escape from jail. [Doc. 20, pp.
16-17 (citing PSR, p. 14)]. Perkins’ argument does not establish entitlement to relief. He discusses
Johnson, identifies his relevant prior convictions, then concludes “[f]or the reasons discussed
above, armed robbery, conspiracy to commit armed robbery, and aggravated battery are not crimes
of violence [sic].” [Id.]. Perkins makes no attempt to show that his predicate felonies do not have
“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)(B)((i). Notably, Perkins was on notice that it is the elements
clause rather than the residual clause that is determinative here, as the Probation Office reviewed
Perkins’ prior convictions after Johnson and “determined the defendant’s predicate convictions
for Armed Robbery (Firearm Enhancement); Armed Robbery (DW); and Aggravated Battery[]
meet the definition of violent felony, without the use of the residual clause.” [CR Doc. 159, p. 1].
However, the United States bears the burden of proving whether a prior conviction
qualifies under § 924(e). See United States v. Garcia, 877 F.3d 944, 948 (10th Cir. 2017) (citing
United States v. Titties, 852 F.3d 1257, 1272 n. 19 (10th Cir. 2017)). Therefore, I still analyze
whether Perkins’ prior convictions are violent felonies under § 924(e).
The United States submits that Perkins has at least two prior separate armed robbery
convictions as well as a New Mexico aggravated battery conviction. [Doc. 21, p. 11 (citing PSR ¶

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49, 50 and 53)]. Perkins does not dispute the existence of these prior convictions. In United States
v. Manzanares, the Tenth Circuit held that a New Mexico armed robbery conviction satisfies the
elements clause, § 924(e)(2)(B)(i). 956 F.3d 1220, 1226 (10th Cir. 2020). The Manzanares court
also held that “[t]he district court’s conclusion that [the petitioner’s] conviction under [New
Mexico’s aggravated battery statute] satisfies the Elements Clause[, § 924(e)(2)(B)(i), was] not
reasonably debatable.” Id. at 1228. In an unpublished decision, the Tenth Circuit interpreted
Manzanares to “[hold] that the New Mexico crime of aggravated battery is a violent felony for
purposes of the ACCA[.]” United States v. Ybarra, 827 F. App’x 896, 899 (10th Cir. 2020)
(unpublished).
Perkins has three or more prior convictions that meet the definition of violent felony
without the use of the residual clause. Therefore, Perkins has failed to show he is entitled to relief
under Johnson.
IV.

RECOMMENDATION
For the above reasons, I recommend that the Court DISMISS Perkins’ petition with

prejudice. Because reasonable jurists would not reach a different result, I further recommend that
a certificate of appealability be DENIED.

_______________________________
JERRY H. RITTER
UNITED STATES MAGISTRATE JUDGE

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THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition, they may file written objections
with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1).
A party must file any objections with the Clerk of the District Court within the fourteen-day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be allowed.

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