Rhodes v. United States of America

Filing 3

ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Jimmy Eugene Rhodes, 2 USCA Order. Defendants Motion to Vacate pursuantto 28 U.S.C. § 2255 is hereby DENIED. The Court further denies Petitioner aCertificate of Appealability for the reasons set forth in Taylor. Signed by Honorable David L. Russell on 4/18/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
UNITED STATES OF AMERICA,
Plaintiff,
v.
JIMMY EUGENE RHODES,
Defendant.

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CR-01-202-R
CIV-16-799-R

ORDER
Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28
U.S.C. § 2255, having been granted authorization to file a second or successive motion by
the United States Court of Appeals for the Tenth Circuit. 1 (Doc. Nos. 125, 126). Following
the filing of the Government’s response and Defendant’s reply, on January 4, 2017, the
Court entered an Order abating the proceedings pending the decision of the United States
Supreme Court in Beckles v. United States. Doc. No. 134. On March 6, 2017, the Supreme
Court issued its decision in Beckles, --- U.S. ---, --- S.Ct. ---, 2017 WL 855781 (2017). In
light of the Supreme Court’s decision in Beckles, Defendant’s § 2255 motion is ripe for
review. Having considered the parties’ filings, the Court finds as follows.
On February 6, 2002, Defendant was charged in a five-count superseding indictment
with two counts of being a felon in possession of a firearm in violation of 18 U.S.C. §
922(g) (Counts 1 and 3), one count of simple possession of methamphetamine in violation

decision by the Tenth Circuit permitting Mr. Rhodes to file a second or successive petition was “an initial
gate-keeping ruling.” Case v. Hatch, 731 F.3d 1015, 1029 (10th Cir. 2013). This Court is still called upon to make a
second gate-keeping ruling as to whether Defendant has met § 2244’s jurisdictional requirements. Id.  

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of 18 U.S.C. § 844(a) (Count 2), one count of possession of stolen firearms in violation of
18 U.S.C. § 922(j) (Count 4), and one count of maintaining a dwelling used to manufacture
methamphetamine in violation of 18 U.S.C. § 856(a)(1) (Count 5). A felon in possession
normally faces a maximum penalty of ten years imprisonment under 18 U.S.C. § 924(a)(2).
However, if the felon possesses the firearm after having sustained three prior convictions
“for a violent felony or serious drug offense, or both,” the Armed Career Criminal Act
(“ACCA”) mandates a fifteen-year minimum sentence. 18 U.S.C. § 924(e)(1). Here, the
Court imposed sentences of 260 months imprisonment on Counts One and Three, as the
result of the ACCA enhancement. Petitioner challenges this enhancement under Johnson
v. United States, 135 S.Ct. 2551 (2015), wherein the Court invalidated a portion of the Act
commonly referred to as the residual clause. Defendant also challenges his sentences on
Counts 4 and 5 on the basis that similar residual clause language in the applicable United
States Sentencing Guidelines increased his base level offense and therefore his sentence on
each of those Counts. The United States’ opposition to the instant motion asserts that
Petitioner’s four prior convictions for robbery in the second degree as well as a prior
conviction for shooting with the intent to kill were sufficient to support both the statutory
and guidelines enhancements without reference to the residual clause of either. After
review of the parties’ submissions, this Court concludes Petitioner is not entitled to relief
pursuant to Johnson as to either the ACCA or the applicable provision of the United States
Sentencing Guidelines.
The Armed Career Criminal Act defines a “violent felony” as “any crime punishable
by imprisonment for a term exceeding one year” that (1) “has as an element the use,
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attempted use, or threatened use of physical force against the person of another” (the “useof-physical-force clause”); (2) “is burglary, arson, or extortion, involves use of explosives”
(the “enumerated-offense clause”); or (3) “otherwise involves conduct that presents a
serious potential risk of physical injury to another” (the “residual clause”). 18 U.S.C. §
924(e)(2)(B). In Johnson, the Supreme Court held that the residual clause of the Act was
unconstitutionally vague. Id. at 2563 (“imposing an increased sentence under the residual
clause of the [ACCA] violates the Constitution’s guarantee of due process.”). The Court
noted, however, that its decision did not implicate the enumerated offenses of burglary,
arson, extortion, or use of explosives, nor did it invalidate enhancement for those prior
convictions for offenses that include “a threat or use of physical force against another
person,” known as the elements clause. Id. at 2563.
Although Mr. Rhodes contends this Court analyzed his prior state-court convictions
for second-degree burglary under the residual clause, the record does not support his
contention. The residual clause was not referenced in sentencing memorandums, in
objections to the pre-sentence investigation report or at his sentencing hearing. As such,
Petitioner has failed to establish that the Court relied on the residual clause. In his Reply
(Doc. No. 132), Petitioner, citing United States v. Mathis, --- U.S. ---, argues that his
burglary in the second degree convictions cannot be considered violent crimes, because
Mathis renders the modified categorical approach inapplicable to this offense. As noted by
Petitioner, the Supreme Court applied its long-standing precedents to explain application
of the modified categorical approach when the statutory conduct encompasses conduct
outside the scope of generic burglary. Although Petitioner’s Johnson claims rely on Mathis
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for their success, Mathis did not announce a new rule of constitutional law, and the Tenth
Circuit has specifically held that it does not apply retroactively. United States v. Taylor, -- Fed.Appx. ---, 2016 WL 7093905 at *5 (10th Cir. Dec. 6, 2016). Because Petitioner
provides no evidence that the Court relied on the residual clause in concluding that his prior
convictions for burglary in the second degree were violent felonies, he is not entitled to
relief under Johnson. Petitioner’s authorization from the Tenth Circuit was limited to
claims under Johnson, and Petitioner’s attempt to rely on Mathis must fail.
In United States v. Taylor, 2016 WL 7093905 (10th Cir. Dec. 6, 2016), the Tenth
Circuit denied a certificate of appealability to a prisoner seeking to challenge his sentencing
enhancement under Johnson. Like Mr. Rhodes, Eric Taylor argued that his second-degree
burglary convictions could not be used as predicate offenses under the Act. The district
court concluded that the convictions qualified as “violent felonies” under the enumerated
offenses clause. On appeal Taylor cited Mathis v. United States, --- U.S. ---, 136 S.Ct.
2243, 195 L.Ed.2d 604 (2016), arguing that under its analysis burglary in the second degree
under Oklahoma law could not be an enumerated felony for ACCA purposes. Although the
Court of Appeals agreed with the substance of Mr. Taylor’s arguments, its ultimate
conclusion on the issue guides this Court’s resolution of the issues herein.
But even if reasonable jurists would disagree with the district court’s
analysis applying the modified categorical approach, we still must address
the issue of whether Mr. Taylor may rely on Mathis in this collateral
proceeding. The district court entered its final judgment in Mr. Taylor’s
criminal case on December 28, 2001. Mr. Taylor had one year from that date
to assert a habeas challenge to his sentence. 28 U.S.C. § 2255(f). Although it
has been approximately fifteen years, Mr. Taylor filed the present case under
§ 2255(f)(3), which allows a prisoner to file a habeas application within one
year of “the date on which the right asserted was initially recognized by the
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Supreme Court, if that right has been newly recognized by the Supreme Court
and made retroactively applicable to cases on collateral review.” We must
therefore determine whether Mathis provides a new right made retroactive
on collateral review.
Id. at *4. The court then considered whether Mathis provided a new rule, and noted
the answer was provided by the Supreme Court. “Here, the Supreme Court explicitly
stated in Mathis that it was not announcing a new rule and that its decision was
dictated by decades of prior precedent. . . .” Id. at * 4. Because Mathis was not a
new rule, it could not be used to avoid the statute of limitations period and his
request for relief thereunder was untimely.
The Court finds no basis for distinguishing the instant case from Taylor.
Defendant made no previous challenge to whether his convictions for second degree
burglary could be considered enumerated felonies under the ACCA, and his
challenge at this juncture is untimely given that Mathis, upon which he relies, did
not announce a new rule of law. See United States v. Byers, CR-05-10-HE (W.D.
Okla. April 6, 2017)(Doc. No. 69). Accordingly, Mr. Rhodes is not entitled to §
2255 relief on this basis.
Defendant also challenges the Court’s decision to utilize these prior
convictions to support a higher base level offense under two provisions of the United
States Sentencing Guidelines, specifically § 4B1.1 and § 2K2.1 based on prior
violent felonies. Although this case was stayed pending the outcome of the Supreme
Court’s decision in Beckles, that case is not directly applicable, because it addressed
advisory sentencing guidelines, and Mr. Rhodes was sentenced before the Supreme
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Courts declared the guidelines advisory, not mandatory, in United States v. Booker,
543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). However, regardless of
whether Beckles applies to mandatory sentencing guidelines, for the same reasons
Defendant is not entitled to relief on his contention that his ACCA sentence was
unconstitutional, he is not entitled to relief on his challenge to the Court’s
application of the Sentencing Guidelines to his case. That is, his contention that
robbery in the second degree cannot qualify as an enumerated felony is untimely.
For the reasons set forth herein, the Defendant’s Motion to Vacate pursuant
to 28 U.S.C. § 2255 is hereby DENIED. The Court further denies Petitioner a
Certificate of Appealability for the reasons set forth in Taylor.
IT IS SO ORDERED this 18th day of April 2017.

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