Self v. United States

Filing 9

MEMORANDUM OF DECISION AND ORDER that the Government's 7 Motion to Dismiss is GRANTED, and Petitioner's 1 Motion to Vacate, Set Aside, or Correct Sentence as 3 supplemented, is DENIED and DISMISSED WITH PREJUDICE.IT IS FURTHER ORDERED that the Court declines to issue a certificate of appealability. Signed by District Judge Martin Reidinger on 11/04/17. (emw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00220-MR
(CRIMINAL CASE NO. 2:08-cr-00028-MR-1)

RODNEY LAMAR SELF,

)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
)
Respondent.
)
___________________________ )

MEMORANDUM OF
DECISION AND ORDER

THIS MATTER is before the Court on the Petitioner’s Motion to Vacate,
Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1], as
supplemented [Doc. 3], and the Government’s Motion to Dismiss [Doc. 7].
Petitioner is represented by Joshua Carpenter of the Federal Defenders of
Western North Carolina.
I.

BACKGROUND
On August 5, 2008, the Petitioner Rodney Lamar Self was charged

with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). [Criminal Case No. 2:08-cr-00028 (“CR”), Doc. 1]. The Petitioner
pleaded guilty to the charge pursuant to a written plea agreement. [CR Doc.
12 at ¶ 1]. Based on his eight prior convictions for armed robbery in Georgia,

the Court found the Petitioner to be an armed career criminal pursuant to 18
U.S.C. § 924(e) and sentenced him to a term of 180 months’ imprisonment.
[CR Doc. 25]. The Petitioner appealed, and the Fourth Circuit affirmed this
Court’s judgment. United States v. Self, 393 F. App’x 47 (4th Cir. 2010).
In August 2011, the Petitioner filed a motion to vacate pursuant to 28
U.S.C. § 2255 in which he raised, among other things, various ineffective
assistance of counsel claims. This Court denied and dismissed the motion
to vacate in September 2011. [Civil Case No. 2:11-cv-00030, Doc. 5].
In December 2013, the Petitioner filed a second motion to vacate,
challenging his armed career criminal designation on the grounds that a
Georgia state court had vacated his armed robbery convictions. [See Civil
Case No. 2:13-cv-00049, Doc. 4 at 4-5]. This Court denied the motion to
vacate as untimely under § 2255(f)(4), finding that the Petitioner did not act
with due diligence in pursuing the vacatur of his eight Georgia armed robbery
convictions. [Id., Doc. 10 at 8-12 (order on motion for reconsideration of
denial of motion to vacate)].
After receiving authorization from the Fourth Circuit to file a successive
habeas petition, the Petitioner filed the present motion to vacate his sentence
under 28 U.S.C. § 2255, arguing that his sentence was improperly enhanced
under the ACCA in light of Johnson v. United States, 135 S. Ct. 2551 (2015).
2

[Doc. 1]. The Petitioner, through counsel, filed a supplement to the motion
to vacate on July 20, 2016. [Doc. 3]. On October 31, 2016, the Government
filed a motion to dismiss the Petitioner’s motion, contending that the
Petitioner waived his right to seek collateral review of his sentence, except
on bases not asserted in his motion; that the Petitioner’s claim is procedurally
defaulted; and that, in any event, Georgia armed robbery still qualifies as a
violent felony for purposes of the ACCA. [Doc. 7]. On November 4, 2016,
the Petitioner filed a response to the Government’s motion to dismiss. [Doc.
8]. Having been fully briefed, this matter is ripe for disposition.
II.

STANDARD OF REVIEW
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides

that courts are to promptly examine motions to vacate, along with “any
attached exhibits and the record of prior proceedings . . .” in order to
determine whether the petitioner is entitled to any relief on the claims set
forth therein. After examining the record in this matter, the Court finds that
the argument presented by the Petitioner can be resolved without an
evidentiary hearing based on the record and governing case law.
Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

3

See

III.

DISCUSSION
The ACCA provides for a mandatory minimum term of fifteen years’

imprisonment for any defendant who violates 18 U.S.C. § 922(g) and who
has three previous convictions for a “violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e)(1). When the Petitioner was sentenced, a
“violent felony” was defined to include 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 [the “force clause”]; or
(ii) is burglary, arson, or extortion, involves use of
explosives [the “enumerated offense clause”], or
otherwise involves conduct that presents a serious
potential risk of physical injury to another [the
“residual clause”].
Id. § 924(e)(2)(B).
In Johnson, the Supreme Court struck down the ACCA’s residual
clause as unconstitutionally vague. Johnson, 135 S. Ct. at 2563. As a result
of Johnson, a defendant who was sentenced to a statutory mandatory
minimum term based on a prior conviction that satisfies only the residual
clause of the “violent felony” definition is entitled to relief from his sentence.
See United States v. Newbold, 791 F.3d 455, 460 (4th Cir. 2015) (holding
that the improper imposition of an ACCA-enhanced sentence is an error that
4

is cognizable in a motion to vacate filed under 28 U.S.C. § 2255). As the
offense of armed robbery does not fall within the enumerated offense clause,
the Petitioner’s prior convictions may still qualify as “violent felonies” only if
the offense of armed robbery under Georgia law “has 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).
The Supreme Court has defined “physical force” as used in the ACCA
as “violent force -- that is, force capable of causing physical pain or injury to
another person.” Johnson v. United States, 559 U.S. 133, 140 (2010).
“Accordingly, if the elements of a crime can be satisfied by de minimis
physical contact, the offense does not qualify categorically as a violent
felony.” United States v. Burns-Johnson, 864 F.3d 313, 316 (4th Cir. 2017).
In determining whether a state offense constitutes a violent felony
under the force clause, the Court must apply the categorical approach
described by the Supreme Court in Descamps v. United States, -- U.S. --,
133 S.Ct. 2276 (2013).1 Under the categorical approach, the Court must

Only when a crime is divisible does the Court use the “modified categorical approach,”
whereby the Court may consider “a limited set of documents to determine the basis of a
defendant’s conviction.” United States v. Gardner, 823 F.3d 793, 802 (4th Cir. 2016)
(noting that divisible crimes are “[o]nly in a ‘narrow range of cases’”) (citing Descamps,
133 S. Ct. at 2283-85). The parties do not contend that the Georgia armed robbery statute
is divisible; accordingly, the Court will apply the standard categorical approach outlined
by Descamps.
1

5

examine whether the state offense has as an element the “use, attempted
use, or threatened use of physical force against the person of another,” and
must not consider “the particular facts underlying the defendant’s conviction.”
Burns-Johnson, 864 F.3d at 316 (citing Descamps, 133 S.Ct. at 2283).
The categorical approach directs courts to examine
only the elements of the state offense and the fact of
conviction, not the defendant’s conduct.
In
conducting this analysis, we focus on the minimum
conduct required to sustain a conviction for the state
crime, although there must be a realistic probability,
not a theoretical possibility, that a state would
actually punish that conduct. We look to state court
decisions to determine the minimum conduct needed
to commit an offense and to identify the elements of
a state common law offense. We then compare
those elements to the definition of violent felony in
the force clause.
United States v. Doctor, 842 F.3d 306, 308-09 (4th Cir. 2016), cert. denied,
137 S. Ct. 1831 (2017) (citations and quotation marks omitted).
The Court turns now to the state crime in question. Georgia law has
two statutory provisions which address robbery offenses. The offense of
“robbery” is addressed in § 16-8-40, which provides, in pertinent part, as
follows:
A person commits the offense of robbery when, with
intent to commit theft, he takes property of another
from the person or the immediate presence of
another:
(1)

By use of force;
6

(2) By intimidation, by the use of threat or coercion,
or by placing such person in fear of immediate
serious bodily injury to himself or to another; or
(3)

By sudden snatching.

Ga. Code Ann. § 16-8-40(a). Under this provision, “an essential element of
all three methods of committing robbery is some form of force -- actual
physical force in the first method, or in the second method, constructive force
supplied by intimidation, etc., or in the third method, force limited to that
necessary to suddenly snatch property from a victim who had no time to react
before the taking was completed.” Franklin v. State, 286 Ga. App. 288, 290,
648 S.E.2d 746, 748 (2007) (citation omitted). As the Supreme Court of
Georgia has stated:
A taking accomplished by force or intimidation is the
“distinguishing characteristic” of robbery – the “gist”
of the offense. The force necessary for robbery is
actual violence or intimidation “exerted upon the
person robbed, by operating upon his fears – the fear
of injury to his person, or property, or character.”
Hewitt v. State, 277 Ga. 327, 329, 588 S.E.2d 722, 725 (2003), overruled on
other grounds, Manley v. State, 287 Ga. 338, 698 S.E.2d 301 (2010)
(citations omitted).

7

The offense of “armed robbery” is addressed in a separate section of
the Georgia Code, § 16-8-41. That provision provides, in pertinent part, as
follows:
A person commits the offense of armed robbery
when, with intent to commit theft, he or she takes
property of another from the person or the immediate
presence of another by use of an offensive weapon,
or any replica, article, or device having the
appearance of such weapon. The offense of robbery
by intimidation shall be a lesser included offense in
the offense of armed robbery.
Ga. Code Ann. § 16-8-41(a). The Supreme Court of Georgia has stated that
the offense of armed robbery requires the establishment of three elements:
“an intent to rob, the use of an offensive weapon, and the taking of property
from the person or presence of another.” Long v. State, 287 Ga. 886, 888,
700 S.E.2d 399, 402 (2010) (quoting Lucky v. State, 286 Ga. 478, 481, 689
S.E.2d 825 (2010)).
The term “offensive weapon” includes “any object, device, or
instrument which, when used offensively against a person, is likely to, or
gives the appearance of being likely to[,] result in death or serious bodily
injury.” Durham v. State, 259 Ga. App. 829, 830, 578 S.E.2d 514, 515
(2003). The lesser included offense of “robbery by intimidation” occurs
where an offensive weapon or thing having the appearance of such a
weapon was not used, but rather “the taking was accomplished by the
8

accused putting the alleged victim (or another) under such fear as would
create in the mind of the victim (or another) an apprehension of danger to life
or limb.” Ga. Suggested Pattern Jury Instructions – Criminal 2.60.32. Thus,
without the “use” of an offensive weapon, an armed robbery does not occur.
The Petitioner argues that the offense of armed robbery is not a violent
felony within the meaning of the ACCA because Georgia courts, including
Hewitt, supra and others, have stated that the offense may be committed by
placing the victim in fear of injury to his property. As such, the Petitioner
argues, the offense of armed robbery does not necessarily require an
element of the use, attempted use, or threatened use of physical force
against another person, as required by the “force clause” of the ACCA. [Doc.
3 at 5].
The language relied upon by the Petitioner, however, is used in the
context of describing the force required for a conviction of the lesser offense
of robbery. See, e.g., Hewitt, 277 Ga. at 329, 588 S.E.2d at 725 (noting that
“the force necessary for robbery is actual violence or intimidation exerted
upon the person robbed, by operating upon his fears – the fear of injury to
his person, or property, or character) (citation and quotation marks omitted)
(emphasis added); see also State v. Epps, 267 Ga. 175, 176, 476 S.E.2d
579, 580 (1996) (same) (quoting Long v. State, 12 Ga. 293, 315 (1852));
9

Smith v. State, 333 Ga. App. 256, 259, 775 S.E.2d 735, 738 (2015) (same)
(quoting Hewitt, supra). Notably, the Georgia courts have not used the “fear
of injury to his person, or property, or character” language when specifically
discussing the elements of armed robbery. To the contrary, the Georgia
courts have made clear that one of the essential elements of armed robbery
-- the “use of an offensive weapon” -- requires the use of such weapon “as a
concomitant to a taking which involves the use of actual force or intimidation
(constructive force) against another person.” Hicks v. State, 232 Ga. 393,
403, 207 S.E.2d 30, 37 (1974), holding modified by Tribble v. State, 248 Ga.
274, 280 S.E.2d 352 (1981) (emphasis added); see also Long v. State, 287
Ga. at 888-89, 700 S.E.2d at 402 (concluding that the offense of aggravated
assault merged into the defendant’s conviction for armed robbery because
“[b]oth crimes required proof of an intent to rob, and the assault requirement
of aggravated assault — that the defendant attempt to commit a violent injury
to the victim or place the victim in reasonable apprehension of receiving a
violent injury — was the equivalent of the “use of an offensive weapon”
requirement of armed robbery”). Further, the Georgia Supreme Court has
described the intimidation necessary for an armed robbery conviction as that
“terror . . . likely to create an apprehension of danger, and [likely to] induce
a person to part with his property for the safety of his person.” Epps, 267
10

Ga. at 176, 476 S.E.2d at 580 (emphasis added). At least two United States
District Courts in Georgia have concluded that the use of an “offensive
weapon” necessarily requires, at a minimum, a threat of violent physical
force. Walker v. United States, No. CV 316-052, 2017 WL 957369, at *7
(S.D. Ga. Mar. 10, 2017), report and recommendation adopted, No. CV 316052, 2017 WL 1682545 (S.D. Ga. May 1, 2017), appeal filed May 19, 2017;
see also Green v. United States, No. 416-153, 2017 WL 819680, at *2 (S.D.
Ga. Mar. 1, 2017) (report and recommendation by magistrate judge) (“Armed
robbery [under O.C.G.A. 16-8-41] “clearly ‘has as an element the use,
attempted use, or threatened use of physical force against the person of
another’ within the meaning of [the force clause] of the ACCA.”), rejected in
part for other reasons, 2017 WL 2692409 (S.D. Ga. June 22, 2017).
Notably, the Petitioner has not identified any Georgia case in which a
conviction for armed robbery was based only on a threat to property, and the
Court is not aware of the existence of any such case. As the Supreme Court
has made clear, “there must be a realistic probability, not a theoretical
possibility, that the State would apply its statute to conduct that falls outside”
the force-clause definition of a violent felony. Moncrieffe v. Holder, 133 S.Ct.
1678, 1685 (2013) (citation and internal quotation marks omitted).

In

determining whether a state offense requires the use, attempted use, or
11

threatened use of physical force, the Court is obliged to “rely on the
interpretation of the offense rendered by the courts of the state in question.”
Burns-Johnson, 864 F.3d at 316. The Georgia Supreme Court has made
clear that the offense of armed robbery involves the use of actual force or
intimidation – by use of an offensive weapon -- against another person.
Hicks v. State, 232 Ga. at 403, 207 S.E.2d at 37. The fact that these
decisions also make mention of the “fear of injury to his person, or property,
or character” language (in dictum) when discussing the offense of robbery
does not alter the essential elements required for the offense of armed
robbery. To commit armed robbery under Georgia law, a defendant must
use an offensive weapon as a threat against a person.

Because the

Petitioner has not identified any case in which a conviction for armed robbery
was based only on a threat to property, he has not presented a “realistic
probability” that Georgia would apply its armed robbery statute to such
conduct.2

2

The Petitioner contends that the existence or non-existence of a Georgia armed robbery
case involving a threat only against property is irrelevant in light of United States v.
Aparicio-Soria, 740 F.3d 152 (4th Cir. 2014) (en banc). In that case, the government
attempted to establish that it was impossible to be convicted of resisting arrest in Maryland
without the use of violent force by citing to 38 published Maryland state court decisions
which all involved the use of violent force by the defendant. Id. at 157. The Fourth Circuit
rejected this argument, noting that the Maryland’s highest court had already stated that
the degree of force required to commit the offense of resisting arrest was “offensive
physical contact.” Id. Accordingly, the Court reasoned, “[w]e do not need to hypothesize
12

Petitioner contends, alternatively, that the Georgia armed robbery
offense does not qualify under the force clause because the statute
encompasses the passive carrying of a weapon during a robbery, even if the
victim never sees the weapon. While the Petitioner is correct that a weapon
may be concealed during an armed robbery, Georgia courts still require that
the victim must at least be aware of the presence of the weapon in order to
find the “use” of an offensive weapon. See Hicks, 232 Ga. at 403207 S.E.2d
at 37 (reversing armed robbery conviction where defendant took billfold from
sleeping victim); Sheely v. State, 287 Ga. App. 92, 95, 650 S.E.2d 762, 764
(2007) (finding use of offensive weapon element met where “the victim is
aware of the weapon and it has the desired forceful effect of assisting to
accomplish the robbery”). Under Georgia law, an offensive weapon will be
found to have been “used” even if the victim cannot see the weapon or does
not know the precise nature of the weapon, so long as the victim is aware of
its presence. See, e.g., Ramey v. State, 206 Ga. App. 308, 308, 425 S.E.2d
385, 386 (1992) (“The statute includes concealed offensive weapons

about whether there is a ‘realistic probability’ that Maryland prosecutors will charge
defendants engaged in non-violent offensive physical contact with resisting arrest; we
know that they can because the state’s highest court has said so.” Id. at 158. Here, by
contrast, the highest court of Georgia has not made any pronouncement as to whether
an armed robbery can be committed solely by the threat of force against property. In the
absence of any such guidance, it is incumbent upon the Petitioner to identify any cases
where the threat of force against property was the basis for an armed robbery conviction.
He has failed to do so.
13

provided there is either a physical manifestation of the weapon or some
evidence from which the presence of a weapon may be inferred.

The

question is whether the defendant’s acts created a reasonable apprehension
on the part of the victim that an offensive weapon was being used regardless
of whether the victim actually saw the weapon.”) (internal citations omitted);
see also Joyner v. State, 278 Ga. App. 60, 60, 628 S.E.2d 186, 188 (2006)
(“The presence of an offensive weapon or an article having the appearance
of one may be established by circumstantial evidence, and a conviction for
armed robbery may be sustained even though the weapon or article used
was neither seen nor accurately described by the victim. What is required is
some physical manifestation of a weapon or some evidence from which the
presence of a weapon may be inferred.”) (citation omitted); accord Dixon v.
Hopper, 407 F. Supp. 58, 64 (M.D. Ga. 1976) (citing Hicks, and finding no
armed robbery where the victim was not aware of the presence of the
weapon), overruled on other grounds, Jarrell v. Balkcom, 735 F.2d 1242
(11th Cir. 1984). Because Georgia law requires the use of an offensive
weapon to effectuate the taking and the victim’s awareness of such weapon,
the Court concludes that the Georgia armed robbery statute requires the
actual or threatened use of violent force such that it qualifies as a violent
felony within the meaning of the ACCA.
14

IV.

CONCLUSION
For the reasons stated herein, the Court concludes that Georgia armed

robbery qualifies as a “violent felony” under the force clause of the ACCA. 3
Therefore, Petitioner’s motion to vacate is denied.
The Court further finds that Petitioner has not made a substantial
showing of a denial of a constitutional right. See generally 28 U.S.C. §
2253(c)(2); see also Miller-El v. Cockrell, 537 U.S. 322, 336-38 (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”) (citing Slack v. McDaniel, 529 U.S. 473, 484-85
(2000)). The Petitioner has failed to demonstrate both that this Court’s
dispositive procedural rulings are debatable and that the Motion to Vacate
states a debatable claim of the denial of a constitutional right. Slack v.
McDaniel, 529 U.S. at 484-85. As a result, the Court declines to issue a
certificate of appealability. See Rule 11(a), Rules Governing Section 2255
Proceedings for the United States District Courts, 28 U.S.C. § 2255.

Because the Court finds that Petitioner’s prior Georgia armed robbery convictions
remain violent felonies under the force clause of the violent-felony definition in the ACCA,
this Court does not address the Government’s alternative arguments regarding waiver
and procedural default.
3

15

ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [Doc. 7] is GRANTED, and Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence [Doc. 1], as supplemented [Doc. 3], is DENIED and
DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that the Court declines to issue a
certificate of appealability.
IT IS SO ORDERED.
Signed: November 4, 2017

16