Kane v. USA
Filing
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MEMORANDUM OF DECISION AND ORDER granting Government's 5 Motion to Dismiss, and Petitioner's 1 Motion to Vacate, Set Aside or Correct Sentence (2255) is dismissed without prejudice. Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 12/21/2016. (nvc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00146-MR
(CRIMINAL CASE NO. 2:08-cr-00024-MR-DLH-1)
JAMES F. KANE,
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Petitioner,
)
)
vs.
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UNITED STATES OF AMERICA, )
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Respondent.
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___________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence, filed under 28 U.S.C. § 2255 [CV Doc. 1],
the Government’s Motion to Dismiss Petitioner’s Successive Motion to
Vacate [CV Doc. 5], and Petitioner’s Motion for Alternative Relief under 28
U.S.C. § 2241 [CV Doc. 7].1 Petitioner is represented by Joshua Carpenter
of the Federal Defenders Office of Western North Carolina.
For the reasons that follow, the Court grants the Government’s motion
to dismiss and dismisses the motion to vacate. Furthermore, to the extent
1
Citations to the record herein contain the relevant document number referenced
preceded by either the letters “CV” denoting that the document is listed on the docket in
the civil case file number 1:16-cv-00146-MR, or the letters “CR” denoting that the
document is listed on the docket in the criminal case file number 2:08-cr-00024-MR-DLH1.
that Petitioner seeks alternative relief under 28 U.S.C. § 2241, his petition
will be dismissed without prejudice to Petitioner filing the § 2241 petition in
the district in which he is confined.
I.
BACKGROUND
In March 2009, Petitioner James Kane pleaded guilty to possessing a
firearm after having been convicted of a felony, in violation of 18 U.S.C. §
922(g)(1). [CR Doc. 7: Indictment; CR Doc. 23: Acceptance and Entry of
Guilty Plea]. In March 2010, Petitioner was sentenced as an armed career
criminal pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e)
(“ACCA”), to a term of 180 months’ imprisonment based on his prior New
Jersey convictions for reckless use of a deadly weapon, burglary (two
counts), and aggravated sexual assault. [CR Doc. 35: Judgment]. The
Fourth Circuit affirmed Petitioner’s conviction and sentence. United States
v. Kane, 434 F. App’x 175, 176-77 (4th Cir. 2011). The Supreme Court
denied Petitioner’s petition for a writ of certiorari. Kane v. United States, 132
S. Ct. 1092 (2012).
In 2012, Petitioner filed his first motion to vacate, arguing that he was
entitled to relief under United States v. Simmons, 649 F.3d 237 (4th Cir.
2011), because his New Jersey conviction for reckless use of a deadly
weapon was not punishable by more than a year in prison. See Kane v.
2
United States, No. 2:12-cv-00027-MR (W.D.N.C.). This Court denied the
motion, determining that Petitioner’s prior offense was punishable by up to
eighteen months in prison, and declined to issue a certificate of appealability.
[CR Doc. 54].
In 2016, Petitioner sought authorization from the Fourth Circuit to file a
second or successive motion to vacate, asserting that in light of Johnson v.
United States, 135 S. Ct. 2551 (2015), his 180-month sentence under the
ACCA is invalid. On June 1, 2016, the Fourth Circuit granted Petitioner’s
motion for authorization, finding that he made a prima facie showing that a
new rule of constitutional law under Johnson, made retroactive to cases on
collateral review by Welch v. United States, 136 S. Ct. 1257 (2016), “may
apply to his case.” [CR Doc. 56-1 at 2]. The Fourth Circuit’s order direted
this Court to determine, in the first instance, whether the new rule in Johnson
applies to Petitioner’s case.
Petitioner’s successive motion to vacate was filed in this Court the
same day. [CV Doc. 1 at 1]. The Government was ordered to respond to
Petitioner’s motion and received two extensions of time to respond. [CV Doc.
2 and entries dated July 11 and August 11, 2016]. On September 9, 2016,
the Government filed a motion to dismiss the motion to vacate as an
unauthorized successive petition. [CV Doc. 5]. On September 22, 2016,
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Petitioner filed a response and a motion for alternative relief under 28 U.S.C.
§ 2241. [CV Docs. 6, 7]. On September 29, 2016, the Government filed a
Reply to Petitioner’s Response. [CV Doc. 8].
II.
STANDARD OF REVIEW
Pursuant to Rule 4(b) of the Rules Governing Section 2255
Proceedings, sentencing courts are directed to promptly examine motions to
vacate, along with “any attached exhibits and the record of prior proceedings”
in order to determine whether a petitioner is entitled to any relief. After
having considered the record in this matter, the Court finds that this matter
can be resolved without an evidentiary hearing. See Raines v. United States,
423 F.2d 526, 529 (4th Cir. 1970).
III.
DISCUSSION
Under the Antiterrorism and Effective Death Penalty Act of 1996, a
prisoner cannot file a “second or successive” motion under Section 2255
unless it is “certified ... by a panel of the appropriate court of appeals to
contain -- (1) newly discovered evidence ... or (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). Before filing a
successive motion to vacate, a prisoner must obtain authorization from a
circuit court. 28 U.S.C. § 2244(b)(3)(A).
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To obtain authorization to file a successive motion to vacate, a prisoner
need only make a prima facie showing that his motion satisfies the
requirements of 28 U.S.C. § 2244(b). That is, the prisoner must make “‘a
sufficient showing of possible merit to warrant a fuller exploration by the
district court.’” In re Williams, 330 F.3d 277, 281 (4th Cir. 2003) (quoting
Bennett v. United States, 119 F.3d 468, 469-70 (7th Cir. 1997)). After the
circuit court performs its gatekeeping function and authorizes a successive
motion to vacate based on a prima facie showing that the motion qualifies,
the district court considering the application must examine each claim
independently to determine whether each claim meets the standards in
Section 2244(b). United States v. Winestock, 340 F.3d 200, 205 (4th Cir.
2003); see also Reyes-Requena v. United States, 243 F.3d 893, 899-900
(5th Cir. 2001) (holding that 28 U.S.C. § 2244(b)(4) has been incorporated
into Section 2255). “A district court shall dismiss any claim presented in a
second or successive application that the court of appeals has authorized to
be filed unless the applicant shows that the claim satisfies the requirements
of this section.” 28 U.S.C. § 2244(b)(4).
Here, as noted, the Fourth Circuit authorized Petitioner to bring this
successive petition, stating in its order that Johnson “may apply to his case.”
In re Kane, No. 16-832 (4th Cir. 2016), Doc. 7-2. A review of the record
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shows, however, that Johnson is not applicable here. Under 18 U.S.C. §
924(e), a defendant qualifies as an armed career criminal if he is convicted
of being a felon in possession of a firearm and he has at least three prior
convictions committed on occasions different from one another that qualify
as a serious drug offense or a violent felony. A “violent felony” is defined to
include a crime punishable by over one year in prison 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, extortion, involves the use of
explosives, or otherwise involves conduct that presents a serious potential
risk of physical injury to another.” § 924(e)(2)(B)(i), (ii). In Johnson, the
Supreme Court held that the provision defining “violent felony” to include a
prior conviction for an offense that “otherwise involves conduct that presents
a serious potential risk of physical injury to another,” known as the “residual
clause” of the ACCA’s “violent felony” definition, is void for vagueness.
Johnson, 135 S. Ct. at 2556, 2558. However, the Court did not strike the
remainder of the “violent felony” definition, including the four enumerated
offenses and the “force clause” of § 924(e)(2)(B)(i). Id. at 2563.
Thus, to establish a claim under Johnson, a petitioner must show that
he was sentenced for an offense that qualified as an ACCA predicate only
under the residual clause of the ACCA. See In re Moore, 830 F.3d 1268,
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1273 (11th Cir. 2016) (holding a movant cannot obtain relief “unless he
proves that he was sentenced using the residual clause”). Here, the Court
adopted the PSR’s recommendation that Petitioner’s prior conviction for
reckless use of a deadly weapon qualified as a predicate offense under the
force clause of the ACCA, and that determination was not challenged on
appeal. [See CR Doc. 26: PSR Addendum at 23-24]. Further, the Court
determined that Petitioner’s prior convictions for burglary qualified as ACCA
predicates as enumerated offenses. [See CR Doc. 45: Sent. Tr. at 33-35].
That determination was affirmed on appeal. See Kane, 434 F. App’x at 17677 (concluding that Petitioner’s burglary convictions qualified as enumerated
offenses using the modified categorical approach)].2 Thus, it is the law of
the case that Petitioner was properly sentenced under the ACCA without
application of the ACCA’s residual clause. See United States v. Aramony,
166 F.3d 655, 661 (4th Cir. 1999) (discussing law of the case doctrine and
exceptions); United States v. Boysaw, 266 F. App’x 284, 285 (4th Cir. 2008)
(holding that law of the case doctrine foreclosed defendant’s challenge to
ACC designation on remand for resentencing).
2
Accordingly, Petitioner’s
Petitioner does not challenge the use of his prior aggravated sexual assault conviction
to support his ACCA enhancement.
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sentence does not implicate the new rule of constitutional law announced in
Johnson.
Even though he conceded that his burglary convictions qualified as
enumerated offenses at the time of his sentencing, Petitioner now argues
that his prior convictions for burglary no longer qualify as enumerated
offenses under the ACCA in light of Descamps v. United States, 133 S. Ct.
2276 (2013). In Descamps, the Supreme Court held that courts may not
apply the modified categorical approach to sentencing under the ACCA
when the crime for which the defendant had been convicted has a single,
indivisible set of elements. Petitioner contends that because the New Jersey
burglary statute is broader than generic burglary, Descamps dictates that his
burglary convictions no longer qualify as enumerated offenses under the
ACCA.
Because these convictions no longer qualify as enumerated
offenses, he argues, such convictions would have only qualified under the
residual clause, which has now been invalidated under Johnson. [CV Doc.
1 at 5].
Petitioner’s attempt to bootstrap his claim under Johnson, however, is
unavailing because this Court did not apply the residual clause when
sentencing Petitioner. “[I]t is not enough for a federal prisoner to simply cite
Johnson as the basis for the claim or claims he seeks to raise in a second or
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successive § 2255 motion, but he also must show that he was sentenced, at
least in part, under the residual clause and thus that he falls within the new
substantive constitutional rule announced in Johnson.” In re Hires, 825 F.3d
1297, 1299 (11th Cir. 2016). Whether a petitioner was sentenced under the
residual clause is determined as of the time of his sentencing. See Hires,
825 F.3d at 1303; King v. United States, No. 16-cv-22261, 2016 WL
4487785, at *9 (S.D. Fla. Aug. 24, 2016) (holding that “Descamps and Mathis
[v. United States, 136 S. Ct. 2243 (2016)] should not be applied retroactively
to determine whether a movant has been sentenced under the residual
clause”); Woodgett v. United States, No. 09-cr-00263-KD-N, 2016 WL
4179994, at *3 (S.D. Ala. Aug. 5, 2016) (stating that “the precedent at the
time of [the petitioner’s] sentencing was that third degree burglary was an
ACCA predicate offense. The residual clause played no part in the Court's
determination. Thus, its invalidation has no bearing on [the petitioner’s]
sentence.”). In short, a petitioner may not use Johnson “as a portal to
relitigate whether a prior . . . conviction qualifies under the elements clause.”
In re Hires, 825 F.3d at 1303.
The cases cited as support for Petitioner’s argument do not help him.
In those cases the record showed either that the sentences at issue had
been enhanced through application of the residual clause, or that they may
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have been enhanced through application of the residual clause. See, e.g.,
United States v. Christian, No. 16-35247, 2016 WL 4933037, at *1 (9th Cir.
Sept. 16, 2016) (unpublished) (allowing a Johnson claim where, “in
sentencing [the petitioner], the district court relied at least in part on the
unconstitutionally vague residual clause of the ACCA’s ‘violent felony’
definition”); In re Adams, 825 F.3d 1283, 1285-86 (11th Cir. 2016) (on a
motion seeking authorization to file a second or successive petition, finding
that petitioner made prima facie showing that he may have been sentenced
under the residual clause based on his objections at sentencing, as well as
the binding precedent that his conviction qualified under the residual clause);
United States v. Ladwig, No. 2:03-cr-232, 2016 WL 3619640, at *3 (E.D. Wa.
June 28, 2016) (finding petitioner showed that the sentencing court “might
have relied” on the residual clause); United States v. Navarro, No. 2:10-CR2104-RMP, 2016 WL 1253830, at *3 (E.D. Wash. Mar. 10, 2016) (noting that
the record “is silent with respect to whether the district court made the
determination based on the residual clause or some other clause”). Here,
however, Petitioner does not contend that he was sentenced under the
residual clause. Indeed, the record is clear that he was not. [CR Doc. 26 at
23-24; Kane, 434 F. App’x at 176-77]. Because Petitioner was not sentenced
under the residual clause, he has not stated a Johnson claim.
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Petitioner’s attempt to attack his burglary convictions under Descamps
is also unavailing because Petitioner cannot meet his burden to show that
Descamps is a new rule of constitutional law that was previously unavailable,
as is required by 28 U.S.C. §§ 2244(b)(2) and 2255(h)(2). First, Descamps
is not a new rule; it was decided in 2013 and was therefore previously
available to Petitioner.
Further, “Descamps is a rule of statutory
interpretation, not constitutional law.” In re Griffin, 823 F.3d 1350, 1356 (11th
Cir. 2016). Because Descamps is not “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme Court, that was
previously unavailable,” a Descamps claim will not support a successive
motion to vacate. See Griffin, 823 F.3d at 1356. For all of these reasons,
Petitioner’s arguments with respect to his predicate burglary convictions are
without merit.
Petitioner further argues that his reckless use of a deadly weapon
conviction no longer qualifies as a predicate offense under the force clause.
This argument, too, lacks merit. Petitioner was convicted under N.J. Stat.
Ann. § 2C:12-1, which prohibits recklessly causing bodily injury to another
with a deadly weapon. [See CR Doc. 26: PSR at ¶ 47]. Petitioner contends
that a mens rea of recklessness is insufficient to establish the use of force
under the ACCA. [CV Doc. 1 at 5]. The Supreme Court, however, recently
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recognized that a mens rea of recklessness is sufficient, because “[a] person
who assaults another recklessly ‘use[s]’ force, no less than the one who
carries out that same action knowingly or intentionally.” Voisine v. United
States, 136 S. Ct. 2272, 2280 (2016). Thus, Petitioner’s prior conviction for
reckless use of a deadly weapon continues to qualify as an ACCA predicate
under the force clause.3
For all of these reasons, the Court concludes that Petitioner’s motion
to vacate must be denied.
Alternatively, Petitioner seeks to present his claim for relief pursuant to
28 U.S.C. § 2241. [Doc. 7]. Any such claim, however, must be brought in
the district in which Petitioner is currently confined, unless the Government
waives venue. See United States v. Poole, 531 F.3d 263, 264, 273 (4th Cir.
2008) (citing Rumsfield v. Padilla, 542 U.S. 426, 447 (2004)). Because no
such waiver has been made here, the Court will dismiss Petitioner’s § 2241
petition without prejudice to renewal in the district of confinement.
3
Even if Petitioner could show that this predicate offense no longer qualified, he still would
have the requisite three predicate offenses to support his ACCA enhancement given his
convictions for aggravated sexual assault and two counts of burglary.
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IV.
CONCLUSION
For the reasons stated herein, Petitioner’s motion to vacate is
dismissed as successive, and Petitioner’s § 2241 petition is dismissed
without prejudice.
Pursuant to Rule 11(a) of the Rules Governing Section 2254 and
Section 2255 Cases, this Court declines to issue a certificate of appealability.
See 28 U.S.C. § 2253(c)(2); Miller–El v. Cockrell, 537 U.S. 322, 338 (2003)
(in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when
relief is denied on procedural grounds, a petitioner must establish both that
the dispositive procedural ruling is debatable and that the petition states a
debatable claim of the denial of a constitutional right).
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [CV Doc. 5] is GRANTED, and the Petitioner’s Motion to Vacate [CV
Doc. 1] is DISMISSED as a successive petition.
IT IS FURTHER ORDERED that the Petitioner’s Motion for Alternative
Relief under 28 U.S.C. § 2241 [CV Doc. 7] is DISMISSED WITHOUT
PREJUDICE to Petitioner to seek such relief in his district of confinement.
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IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: December 21, 2016
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