Robinson v. United States of America

Filing 9

ORDER re 7 Motion to Vacate/Set Aside/Correct Sentence (2255), filed by Everett Bernard Robinson. Defendant is not entitled to relief on this basis. Defendants request for relief pursuant to 28 U.S.C. § 2255 is denied, as more fully set out. Signed by Honorable David L. Russell on 2/1/17. (jw)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
EVERETT B. ROBINSON,
Defendant.

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No. CR-07-72-R
CIV-15-885-R

ORDER
Defendant, having received permission to file a successive motion from the United
States Court of Appeals for the Tenth Circuit, seeks relief under 28 U.S.C. § 2255 with
regard to the sentence imposed in this case.1 (Doc. No. 94). The United States responded
in opposition to the motion and Defendant has filed a Reply. Having considered the parties’
submissions, the Court finds as follows.
On September 6, 2007, the Court sentenced Defendant following jury trial to fifteen
years imprisonment on his conviction for violating 18 U.S.C. § 922(g)(1), felon in
possession of a firearm. His sentence was subject to enhanced punishment pursuant to 18
U.S.C. § 924(e), due to three qualifying prior convictions: (1) second degree burglary in
violation of Arkansas Code § 5-39-201; (2) assault and battery with a dangerous weapon
in violation of Okla. Stat. tit. 21 § 645; and (3) robbery with a firearm after former
conviction of a felony. Plaintiff filed this motion pursuant to Johnson v. United States, 135

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Defendant argues throughout his filings that the permission granted by the Tenth Circuit supports relief in his
favor. The granting of permission for leave to file a successive § 2255 motion does not mandate relief on the merits.

S.Ct. 2551 (2015), wherein the Supreme Court invalidated a portion of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), as unconstitutionally vague, asserting that
his enhanced sentence cannot stand after the Supreme Court decision in Johnson.
Under 18 U.S.C. § 924(a)(2), the maximum term of imprisonment for violation of
§ 922(g)(1) is ten years. Where, as here, Defendant has three or more prior convictions that
qualify as either a violent felony or serious drug offense, § 924(e) provides for a mandatory
minimum sentence of 15 years. The issue in Johnson involved the definition of violent felony
under § 924(e), which provides:

(B) the term “violent felony means any crime punishable by imprisonment
for a term exceeding one year, or any act of juvenile delinquency involving
the use or carrying of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an adult, that─
(i) has an element the use, attempted use, or threatened use of physical force
against the person of another;
(ii) is burglary, arson, or extortion, involve the use of explosives, or
otherwise involves conduct that presents a serious risk of physical injury
to another.
18 U.S.C. § 924(e)(2). The highlighted provision was known as the residual clause, and in
Johnson, the Supreme Court concluded the residual clause was unconstitutionally vague
and therefore in violation of the due process clause. 135 S.Ct. at 2556-57. The Court,
however, specifically noted that invalidation of the residual clause did not impact the
remaining clauses, commonly referred to as the “elements clause” and the “enumerated
clause.” Id. at 2563. Thus, the issue presented herein is whether Defendant’s prior
convictions were properly considered qualifying offenses under the ACCA, without
reliance on the residual clause.

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In his original motion, Defendant asserts that second degree burglary under
Arkansas law does not qualify under the enumerated clause of the ACCA, because it does
not involve purposeful, violent and aggressive conduct against another. Doc. No. 94, p. 3.
He also asserts that his assault and battery with a dangerous weapon charge was amended
to simple battery, and therefore that conviction was not a qualifying offense for purposes
of the ACCA.
The United States responded to the motion asserting that Defendant’s Arkansas
conviction is a violent felony under the enumerated clause of the Armed Career Criminal
Act. The government further asserts that the Defendant’s conviction under Oklahoma law
for assault and battery with a dangerous weapon qualified as a violent felony under the
elements clause, under either the categorical or applying the modified categorical approach.
In his reply brief (Doc. No. 112) Defendant contends for the first time that his third
qualifying conviction, robbery with a firearm after former conviction of a felony, can no
longer be used to support the ACCA enhancement in light of Mathis v. United States, --U.S. ---, 136 S.Ct. 2243 (2016). First, the Court notes that issues may not be raised for the
first time in a Reply brief. Reedy v. Werholtz, 660 F.3d 1270, 1274 (10th Cir. 2011).
Furthermore, to the extent Defendant contends his claim could not have been raised earlier
because Mathis had not been issued at the time he filed his motion, Mathis did not announce
a new right made retroactive on collateral review. Rather,
[t]he Supreme Court explicitly stated in Mathis that it was not announcing a
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new rule and that its decision was dictated by decades of prior precedent:
For more than 25 years, we have repeatedly made clear that application of
ACCA involves, and involves only, comparing elements. Courts must ask
whether the crime of conviction is the same as, or narrower than, the relevant
generic offense.
United States v. Eric Taylor, No. 16-6223, --- Fed.Appx. ---, 2016 WL 7093905, at *4
(10th Cir. Dec. 6, 2016). Because Defendant failed to raise this claim in his motion, the
Court declines to address it herein, furthermore his motion would be untimely to the extent
he seeks to rely on Mathis. The Court turns to the issues raised in Defendant’s original
motion.
Defendant contends that his 1971 Arkansas conviction for burglary cannot serve as
a qualifying offense under the ACCA. Burglary, unlike the conviction for unlawful
possession of a shotgun at issue in Johnson, is an enumerated offense under § 924(e)(2).
The Tenth Circuit recently rejected the same argument in United States v. Eric Taylor,
2016 WL 7093905, * 2 (Dec. 6, 2016), because burglary is an enumerated offense under
the ACCA, and Johnson does not call that clause into question. See Id. at * 2. Furthermore,
to the extent Defendant relies on Mathis to argue that the elements of Arkansas’ burglary
statute do not sufficiently match the elements of generic burglary, irrespective of the facts
of his particular case, a claim for which he cites to Mathis, his claim is untimely, Mathis
did not announce a new rule of law applicable retroactively to cases on collateral review.
Id. at *4.
In the majority of cases, the operative date from which the limitation period is
measured from “the date on which the judgment of conviction becomes final.” 28 U.S.C.
§ 2255(f)(1). A conviction becomes final upon completion of direct review. United States
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v. Burch, 202 F.3d 1274, 1277 (10th Cir. 2000). Mr. Robinson’s conviction became final
on May 27, 2009, when the Supreme Court denied his Petition for Writ of Certiorari. Thus,
one year has clearly passed since his conviction became final. Further, Defendant cannot
rely on the alternative statute of limitations provision, § 2255(f)(3), because that provision
only comes into play when a claim is based on a rule newly recognized by the Supreme
Court and made retroactively applicable to cases on collateral review. 28 U.S.C. § 2255.
Because Mathis did not recognize a new rule, Plaintiff cannot rely on the provision to
permit him to challenge the use of his Arkansas burglary conviction under the enumerated
clause. See Taylor, 2016 WL 7093905 at * 4.
Defendant next challenges use of his Oklahoma conviction for assault and battery
with a dangerous weapon, raising two issues. Without any evidentiary support, he contends
that the charge in this case was reduced to simple battery. The state court records submitted
by Petitioner do not support his contention. The “Plea of Guilty and Summary of Facts”
indicate that Mr. Robinson pled guilty to a charge of assault and battery with a dangerous
weapon in violation of Okla. Stat. tit. 21 § 645. The record of his incarceration with the
Oklahoma Department of Corrections indicate that his conviction was for violating § 645.
Furthermore, the presentence investigation report in this case listed the conviction as
assault and battery with a dangerous weapon, and no challenge to the nature of the
conviction was raised in objection thereto or at sentencing.
Defendant further argues that assault and battery with a dangerous weapon, which
is not an enumerated offense under § 924(e), cannot be used to satisfy the elements clause
under ACCA. He contends this conviction could only have been classified as a violent
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felony under the now-unconstitutional residual clause, arguing he should be re-sentenced,
and as a result, released, because he has served in excess of the maximum sentence without
the ACCA enhancement.
The “elements” clause requires that the offense under consideration “ha[ve] as an
element the use, attempted use, or threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e).
To determine whether a prior conviction fits within the elements clause, “we
use one of two methods of analysis: the categorical or modified categorical
approach.” Madrid, 805 F.3d at 1207. The categorical approach focuses
solely on “the elements of the statute forming the basis of the defendant's
conviction.” Descamps v. United States, –––U.S. ––––, 133 S.Ct. 2276,
2281, 186 L.Ed.2d 438 (2013). “[T]he modified categorical approach applies
when the statute is ‘divisible’; that is, when it ‘lists multiple, alternative
elements, and so effectively creates several different crimes.’ ” Madrid, 805
F.3d at 1207 (quoting Descamps, 133 S.Ct. at 2285). “[T]he modified
categorical approach permits sentencing courts to consult a limited class of
documents, such as indictments and jury instructions, to determine which
alternative formed the basis of the defendant's prior conviction.” Descamps,
133 S.Ct. at 2281.
United States v. Tommy Taylor, 843 F.3d 1215, 1220 (10th Cir. 2016). In Tommy Taylor,
the court considered whether Okla. Stat. tit. 21 § 645, the same statute under which Mr.
Robinson was convicted, is a crime of violence for purposes of sentencing enhancement.2
[T]he threshold question is whether the Oklahoma statute under which
[Defendant] was convicted, Okla. Stat. tit. 21, § 645, contains a single,
indivisible set of elements or instead lists multiple, alternative elements. In
Mitchell, we held that § 645 “has a divisible set of elements; it criminalizes
an ‘assault, battery, or assault and battery’ with a sharp or dangerous weapon,
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The relevant statute provides:
Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault,
battery, or assault and battery upon the person of another with any sharp or dangerous weapon, or who, without such
cause, shoots with any kind of firearm or air gun or other means whatever, with intent to injure any person, although
without the intent to kill such person or to commit any felony. . .
Okla. Stat. tit. 21 § 645.

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and in the alternative it criminalizes ‘shoot [ing] at another’ with a gun or
similar means.” 653 Fed.Appx. at 643. We also held in Mitchell that “[t]he
former alternative further contains the sub-alternatives of ‘assault, battery, or
assault and battery,’ and ‘sharp or dangerous weapon.’ ” Id. (quoting § 645).
The result is that “we must therefore apply the modified categorical
approach, examining the charging document to determine what set of
elements was applied to [Taylor].” Id.
Id. at 1222–23 (10th Cir. 2016). The parties have not provided charging documents from
this conviction to the Court. The factual summary contained in his guilty plea papers, which
list the charge as assault and battery with a dangerous weapon, simply states: “[o]n or about
May 27, 2003 I knowingly threw a telephone at Tynya Laney.” Doc. 94-2. Thus, it appears
that Mr. Robinson was charged with assault and battery with a dangerous weapon under
the first half of the statute, not under the second half. “Oklahoma law defines an ‘assault’
as ‘any willful and unlawful attempt or offer with force or violence to do a corporal hurt to
another,” Okla. Stat. tit. 21 § 641, and a “battery” as “any willful and unlawful use of force
or violence upon the person of another,” Okla. Stat. tit. 21, § 642.” Taylor, 843 F.3d at
1223. Here, as in Taylor and Mitchell and the Tenth Circuit’s prior cases, the issue is
“whether § 645 satisfies the requisite violent force necessary because it contains the
additional element of a ‘dangerous weapon.’” Id. (citing Mitchell, 653 Fed.Appx. at 644.
The Tenth Circuit concluded in both cases that “when a statute criminalizes ‘purposefully
threatening . . . a victim[ ] with a weapon capable of causing death or great bodily harm,’
a conviction under that statute is a crime of violence.” Id. (quoting Mitchell, 653 Fed.Appx.
at 645 (quoting United States v. Ramon Silva, 608 F.3d 663, 672 (10th Cir. 2010)). The
court in Taylor, noted its conclusion in Mitchell:
The statute here criminalizes an intentional attempt or threat to commit
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violence on another—that is, either an attempted-battery assault or an
apprehension-causing assault—with a weapon capable of causing great
bodily harm. In other words, a conviction under this portion of § 645
categorically requires proof of the attempted use or threatened use of violent
force. Following our precedent, a conviction under these elements of § 645
“is categorically a crime of violence under all circumstances.” Madrid, 805
F.3d at 1207.Id. at 645.
United States v. Taylor, 843 F.3d 1215, 1224 (10th Cir. 2016). The court further concluded
that Mathis did not alter the outcome despite the fact that the dangerous weapon
requirement of § 645 can be satisfied by “multiple means.” Id. at 1224.
Importantly, however, these features do not, as suggested by Taylor, operate
to nullify the “dangerous weapon” element for purposes of determining
whether a conviction under the first alternative part of § 645 qualifies as a
“crime of violence” for purposes of § 4B1.2(a)(1). That is because, regardless
of how the “dangerous weapon” element is satisfied in a particular case, the
“dangerous weapon” element always operates in the manner described in
Mitchell and Ramon Silva. More specifically, regardless of the type of
“dangerous weapon” that is employed by a particular defendant, the use of a
“dangerous weapon” during an assault or battery always “constitutes a
sufficient threat of force to satisfy the elements clause” of § 4B1.2(a)(1).
Mitchell, 653 Fed.Appx. at 645.
Id. at 1224–25. The Tenth Circuit’s decision in Taylor dictates the outcome of Defendant’s
claim with regard to his conviction for assault and battery with a deadly weapon under §
645, which categorically qualifies as a crime of violence. As such, Defendant is not entitled
to relief on this basis. Defendant’s request for relief pursuant to 28 U.S.C. § 2255 is denied
for the reasons set forth above.
This Court is required to issue or deny a certificate of appealability when it enters a
final order adverse to the applicant in § 2255 proceedings. Rule 11(a) Rules Governing
Section 2255 Proceedings for the United States District Courts. Title 28 § Section
253(c)(1)(B) mandates that the Court may issue a certificate of appealability “only if the
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applicant has made a substantial showing of the denial of a constitutional right,” and the
court “indicate[s] which specific issue or issues satisfy [that] showing.” 28 U.S.C. §
2253(c)(2) and (3). Defendant can satisfy the standard by demonstrating that the issues
raised are debatable among jurists, that a court could resolve the issues differently, or that
the questions deserve further proceedings. Slack v. McDaniel, 529 U.S. 473, 484 (2000)
(citing Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). If a district court dismisses a § 2255
motion on procedural grounds without reaching the underlying constitutional claims, the
Defendant must show “jurists of reason would find it debatable whether the [§ 2255
motion] states a valid claim of the denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was correct in its procedural ruling.”
Slack, 529 U.S. at 484. After considering the record in this case, the court concludes that
Defendant cannot make the required showing that jurists of reason would find it debatable
whether the court was correct in its ruling or that the motion fails to state a valid
constitutional claim. The Court therefore denies Defendant a certificate of appealability.
IT IS SO ORDERED this 1st day of February, 2017.

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