Douglas v. United States of America

Filing 15

ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS. Signed by Judge S. Thomas Anderson on 11/26/24. (skc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DONTOREUS DOUGLAS,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No.: 1:23-cv-01106-STA-jay

ORDER DENYING § 2255 MOTION,
DENYING CERTIFICATE OF APPEALABILITY,
AND
DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

Dontoreus Douglas has filed a pro se motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 in criminal action number 1:17-cr-10040-STA. (ECF No. 1.) He
seeks to overturn his conviction for using a firearm in relation to a crime of violence based on
Taylor v. United States, 596 U.S. 845 (2022), which he alleges renders his conviction invalid.
The Government has filed a response to the § 2255 motion. (ECF No. 13.) For the reasons set
forth below, Defendant’s § 2255 motion is DENIED.
Background
Defendant Douglas, a Gangster Disciple officer, was indicted in a superseding indictment
by a Grand Jury sitting in the Western District of Tennessee for the following crimes: four counts
of attempted murder in aid of racketeering activity (“VICAR attempted murder”), in violation of
18 U.S.C. § 1959(a)(5); four counts of discharging a firearm in furtherance of a crime of violence,
in violation of 18 U.S.C. § 924(c); and one count of possessing a firearm as a felon, in violation of
18 U.S.C. § 922(g)(1). (Sup. Ind., ECF No. 21.) The VICAR attempted murder charges were

predicated on a violent shooting that occurred in 2012 which resulted in Defendant’s conviction
for attempted violations of Tenn. Code Ann. § 39-13-210, the Tennessee statute for second-degree
murder.1 (Id.)
Defendant was also charged in a separate case (1:16-cr-10061-STA) with drug trafficking
in violation of 21 U.S.C. § 841(a)(1) and with possessing a firearm in furtherance of a drug
trafficking crime in violation of 18 U.S.C. § 924(c). He pled guilty to both counts and was
sentenced in conjunction with this case on October 18, 2019. Defendant does not challenge his §
924(c) conviction for the 2016 drug trafficking crime.
On April 29, 2019, Defendant pled guilty to the first count of VICAR attempted murder
and the corresponding count for using a firearm in relation to a crime of violence in this case. The
plea agreement contained a provision stating that he was “knowingly and voluntarily” waiving his
right to collaterally challenge his sentence under § 2255, with exceptions for claims relating to
prosecutorial misconduct and ineffective assistance of counsel. Subsequently, on October 18,
2019, he was sentenced by this Court to 280 months’ imprisonment.
Defendant appealed his convictions. The sole argument he raised on appeal was that he
received erroneous advice from his attorney regarding the plea offer, which led to what he
describes as an “involuntary plea” because he accepted a plea he would not have otherwise
accepted. On September 15, 2020, the Sixth Circuit affirmed Defendant’s sentence and found that
this court did not commit plain error and that Defendant “knowingly and voluntarily entered his
pleas.” (Gov’t Exb. 4, ECF No. 13.)

1

As part of the Comprehensive Crime Control Act of 1984, Pub. L. No. 98-473, 98 Stat. 1976,
Congress enacted the Violent Crimes in Aid of Racketeering Activity (“VICAR”) statute, 18
U.S.C. § 1959, which, among other things, prohibits the commission of certain violent crimes
“for the purpose of gaining entrance to or maintaining or increasing position in an enterprise
engaged in racketeering activity.” 18 U.S.C. § 1959(a).
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Discussion
Defendant seeks to overturn his § 924(c) conviction, use of a firearm during a crime of
violence. His § 2255 motion principally rests on United States v. Taylor, 596 U.S. 845 (2022), a
Supreme Court decision which held that attempted Hobbs Act robbery does not qualify as a “crime
of violence” under § 924(c). He claims that, under Taylor, the federal definition of attempt cannot
be used as a predicate for a crime of violence under § 924(c). He analogizes that, because an
attempted Hobbs Act robbery is not a crime of violence, neither is VICAR attempted murder.
According to Defendant, an attempt conviction under Tennessee’s second-degree murder statute
— which served as the basis for his VICAR attempted murder conviction — should not count as
a crime of violence because the state statute’s definition of attempt matches the federal definition
of attempt (which, according to Defendant, is not a crime of violence after Taylor) and because
the statute contains a type of killing that he says is nonviolent, i.e., killing by way of unlawful drug
distribution. He also claims that his plea agreement’s “appeal waiver was not knowing or voluntary
and is breached because Taylor establishes a fundamental defect and miscarriage of justice” as to
his § 924(c) conviction.
The Court agrees with the Government that Defendant’s motion fails for several reasons.
First, he waived the right to collaterally challenge his conviction when he signed his plea
agreement. Second, he procedurally defaulted on the arguments he raises in his motion because he
did not previously raise them on appeal. And third, Taylor does not support his position.
“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States,
471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). To establish an error of

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constitutional magnitude a § 2255 movant “must demonstrate the existence of an error . . . which
had a substantial and injurious effect or influence on the guilty plea or the jury’s verdict.” Griffin
v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619,
637 (1993)). For a defendant “to obtain relief under § 2255 on the basis of non-constitutional
error, the record must reflect a fundamental defect in the proceedings that inherently results in a
complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair
procedure.” McWhorter v. United States, 156 F.3d 1231 (6th Cir. 1998) (table) (citing Reed v.
Farley, 512 U.S. 339, 348 (1994); United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993)
(per curiam)).
As pointed out by the Government, Defendant is not entitled to § 2255 relief because he
knowingly and voluntarily waived his right to file this motion. A waiver of the right to bring a §
2255 motion is generally enforceable. See Portis v. United States, 33 F.4th 331, 335 (6th Cir.
2022). “A defendant may waive any right, even a constitutional one, in a plea agreement,” so
long as that agreement was entered “knowingly and voluntarily.” Id.; see also Cox v. United
States, 695 F. App’x 851, 853 (6th Cir. 2017) (citation omitted). Even “[s]ubsequent
developments in the law that would make a right to bring a postconviction challenge more
valuable do not suddenly make the plea involuntary or unknowing or otherwise undo its binding
nature.” Id. (quotation marks omitted). That is, “a voluntary plea of guilty intelligently made in
light of the then applicable law ... does not become vulnerable because later judicial decisions
indicate that the plea rested on a faulty premise.” Id. (citing Brady v. United States, 397 U.S. 742,
757 (1970)). Indeed, “waiver[ ] of the right to appeal” “would amount to little if future changes
in the law permitted the benefitted party nonetheless to appeal.” Id. (quotation marks and citation
omitted).

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Here, “it plainly appears from [his] motion” that Defendant is not entitled to relief because
his claim is barred by his § 2255 waiver. See Rules Governing Section 2255 Proceedings in the
United States District Courts Rule 4(b); see also Pettigrew v. United States, 480 F.2d 681, 684
(6th Cir. 1973). Defendant knowingly and voluntarily entered a plea agreement waiving his right
to file his § 2255 motion. Even though he has identified a possibly relevant development in the
law making the ability to collaterally attack his conviction more valuable, i.e., Taylor, the waiver
in his plea agreement still bars his motion. See Portis, 33 F.4th at 335 (“Subsequent developments
in the law that would make a right to bring a postconviction challenge more valuable do not
suddenly make the plea involuntary or unknowing or otherwise undo its binding nature.”)
Because Defendant’s valid plea agreement precludes his request for relief, the Court denies his
motion on that basis. See United States v. Griffin, 854 F.3d 911, 914 (6th Cir. 2017) (“It is well
settled that a defendant in a criminal case may waive any right, even a constitutional right, by
means of a plea agreement.”)
Proceedings under § 2255 are not a substitute for direct appeal. Massaro v. United States,
538 U.S. 500, 504 (2003). Therefore, “the general rule [is] that claims not raised on direct appeal
may not be raised on collateral review unless the petitioner shows cause and prejudice¨ to excuse
the procedural default. Id. Thus, claims that were not previously raised on direct appeal are
procedurally defaulted, which means that they cannot be argued for the first time in a § 2255
motion. See, e.g., Gibbs v. United States, 655 F.3d 473, 475 (6th Cir. 2011). However, a
defendant may also seek to overcome the default on the ground “that he is ‘actually innocent’”
of the crime of conviction. Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Murray
v. Carrier, 477 U.S. 478, 496 (1986)). Accordingly, a procedural default can be excused if the
defendant can show either (1) cause and prejudice or (2) actual innocence. See Peveler v. United

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States, 269 F.3d 693, 698 (6th Cir. 2001) (“A procedurally defaulted claim, absent a showing of
cause and prejudice or actual innocence, cannot give rise to relief under § 2255.”). Here,
Defendant has not argued actual innocence. Thus, the issue is whether he has established cause
and prejudice.
Defendant attempts to establish cause by pointing out that it would have been futile for
him to challenge the classification of attempted murder as a “crime of violence” under § 924(c)
before Taylor came out. To the contrary, the Supreme Court has rejected that line of reasoning,
stating that “futility cannot constitute cause if it means simply that a claim was unacceptable to
that particular court at that particular time.” Bousley v. United States, 523 U.S. 614, 623 (1998)
(internal quotation marks omitted). Moreover, even before Taylor was decided in June 2022,
several district courts within this Circuit had confronted the issue of whether attempted murder
constitutes a “crime of violence” under § 924(c). See, e.g., Milton v. United States, 2022 WL
196299, at *9 (W.D. Tenn. Jan. 21, 2022) (stating that attempted murder in violation of Tenn.
Code Ann. § 39-13-201 is a crime of violence under § 924(c) because it has as an element the
attempted use of physical force); Clark v. United States, 2020 WL 7383308, at *2 (E.D. Mich.
Jan. 16, 2020) (concluding that the defendant’s attempted murder convictions were predicate
offenses for a § 924(c) conviction). Therefore, Defendant cannot establish cause for his default.
As for prejudice, Defendant asserts that Taylor “establishes a fundamental defect and miscarriage
of justice” as to his § 924(c) conviction. However, as explained below, Taylor does not support
Defendant’s motion, and, thus, he cannot show prejudice. Consequently, procedural default bars
Defendant’s motion.
Defendant’s motion also fails substantively. The Government is correct that Defendant’s
VICAR attempted murder conviction is still a crime of violence under § 924(c), even after Taylor.

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Section § 924(c)(1)(A) proscribes the use of a firearm “during and in relation to any crime
of violence.” 18 U.S.C. § 924(c)(1)(A). A “crime of violence” is defined in § 924(c)(3)(A) as a
felony offense that “has as an element the use, attempted use, or threatened use of physical force
against the person or property of another.” This provision is sometimes called the elements
clause, since “the clause poses the question whether the federal felony at issue has as an element
the use, attempted use, or threatened use of physical force.” Taylor, 596 U.S. at 848–50. The
statute contains a separate provision known as the “residual clause,” which provides that a crime
of violence is a felony 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)(B). Because the residual clause has been determined to be unconstitutionally vague,
see United States v. Davis, 588 U.S. 445 (2019), courts now consider only § 924(c)’s elements
clause in deciding whether an offense is a crime of violence.
In determining whether a crime falls within § 924(c)(3)(A)’s definition, courts apply a
“categorical approach.” See Alvarado-Linares v. United States, 44 F.4th 1334, 1342 (11th Cir.
2022) (“Ordinarily, we use a categorial approach to determine whether a predicate offense is a
“crime of violence” under the elements clause.”) Under the categorical approach, courts “look
only to the elements of the offense set forth in the statute itself, rather than the particular facts of
the defendant’s case.” United States v. Martin, 2023 WL 2755656, at *2 (6th Cir. 2023) (citing
Taylor v. United States, 495 U.S. 575, 602 (1990)). But in cases where the criminal statute at
issue is divisible — meaning it “sets out one or more elements of the offense in the alternative”
and therefore defines multiple potential crimes — courts apply a modified categorical approach.
Id. at *2 (citing Descamps v. United States, 570 U.S. 254, 257 (2013)). While the categorical
approach confines the courts to look only at the statutory elements, the modified categorical

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approach allows the court to look beyond the elements of the statute “to a limited class of
documents — including the indictment, jury instructions, plea agreement, and plea colloquy —
to determine which specific crime, with which elements, a defendant was convicted of” in a
divisible statute. Id.; see also Allen v. United States, 2023 WL 4145321, at *3 (6th Cir. June 23,
2023); Braden v. United States, 817 F.3d 926, 932 (6th Cir. 2016).
Here, the Court will use the modified categorical approach because Defendant was
convicted of violating 18 U.S.C. § 1959(a)(5), the VICAR statute, based on an attempted
violation of Tenn. Code Ann. § 39-13-210. Both statutes are divisible. The VICAR statute lists
multiple acts, e.g., murder, kidnapping, maiming, assault with a dangerous weapon, as well as
attempting to commit any of those acts, that each qualify as a crime. See 18 U.S.C. § 1959(a);
United States v. Pastore, 83 F.4th 113, 119 (2d Cir. 2023) (holding that the modified categorical
approach applies to substantive VICAR offenses). Similarly, because the Tennessee seconddegree murder statute enumerates multiple potential crimes such as a knowing killing of another,
a killing of another by way of unlawful distribution of a Schedule I or Schedule II drug, and a
killing of another by way of unlawful distribution or delivery or dispensation of fentanyl or
carfentanil, it is also divisible. See Tenn. Code Ann. § 39-13-210(a)(1)–(3); see also Martin, 2023
WL 2755656, at *2–5 (concluding that the statute is divisible).
In regard to the predicate state crime, Defendant argues that the superseding indictment
charged him with attempted violations of § 39-13-210 generally, without mentioning a specific
subsection. However, the superseding indictment also charged him with using and carrying a
firearm in relation to his federal offenses. This matches the “knowing killing” subsection of §
39-13-210(a)(1), which defines second-degree murder as a “knowing killing of another.” See
Martin, 2023 WL 2755656, at *5 (finding that, although the indictment charged violations of §

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39-13-210 generally, the district court correctly determined that the defendant was convicted
under § 39-13-210(a)(1) based on the language of the charged counts).
Moreover, Defendant’s convictions required proof of “the use, attempted use, or
threatened use of physical force against the person or property of another.” 18 U.S.C. §
924(c)(3)(A). Courts have determined that the completed crime of murder always requires the
use of physical force. A “criminal cannot commit murder by threat. Instead, the completed crime
of murder always requires the use of physical force because it is impossible to cause death
without applying force that is capable of causing pain or physical injury.” Alvarado-Linares, 44
F.4th at 1346–47 (internal quotation marks omitted); Pastore, 83 F.4th at 120 (“There is no
question that intentionally causing the death of another person involves the use of force.”); United
States v. Lassiter, 96 F.4th 629, 636 (4th Cir. 2024) (concluding that second-degree murder is a
crime of violence because it “necessarily requires conduct that uses physical force against
another”). Additionally, the Sixth Circuit has determined that a conviction under Tenn. Code
Ann. § 39-13-210(a)(1) is a crime of violence in the context of whether a defendant was a career
offender under the Sentencing Guidelines. See, e.g., United States v. Jackson, 2021 WL 7909375,
at *2 (6th Cir. 2021) (finding that a “knowing killing” under § 39-13-210(a)(1) is “categorically
a crime of violence”); see also Martin, 2023 WL 2755656, at *5–7.
The completed crime of murder requires the use of physical force, a fortiori, an attempt
to commit murder necessarily involves the attempted use of physical force. See AlvaradoLinares,
44 F.4th at 1347 (“Because the completed crime of murder has as an element the use of force,
the attempt to commit murder has as an element the attempted use of force.”); Pastore, 83 F.4th
at 120 (“[B]ecause second-degree murder under New York law is a crime of violence, there can
be no doubt that attempt to commit second-degree murder under New York law is itself

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categorically a crime of violence.”); Lassiter, 96 F.4th at 636 (determining that “attempting to
commit murder under Virginia law is also a crime of violence”). A “knowing killing” under §
39-13-210(a)(1) is “categorically a crime of violence” as determined in the Sixth Circuit’s
decision in Jackson, 2021 WL 7909375, at *2; thus, it necessarily follows that an attempt to
violate § 39-13-210(a)(1) is also a crime of violence under § 924(c). See Martin, 2023 WL
2755656, at *5–7 (concluding that the defendant’s conviction for attempted second-degree
murder under § 39-13-210(a)(1) is a crime of violence).
This is likewise true for Defendant’s federal conviction for VICAR attempted murder.
The Sixth Circuit has even categorized VICAR attempted murder as a crime of violence under §
924(c)’s elements clause. See United States v. Woods, 14 F.4th 544, 552 (6th Cir. 2021) (stating
in response to the defendants’ arguments that their underlying convictions were not predicate
offenses under § 924(c) “both VICAR attempted murder and VICAR assault with a dangerous
weapon are crimes of violence” under the elements clause). Thus, Defendant was properly
convicted of using a firearm during a crime of violence, in violation of § 924(c).
Defendant argues that Taylor, which held that an attempted Hobbs Act robbery is not a
crime of violence under § 924(c), means that VICAR attempted murder is also not a crime of
violence. However, Hobbs Act robbery and VICAR attempted murder are distinguishable. A
Hobbs Act robbery is the “unlawful taking or obtaining of personal property from the person . .
. of another, against his will, by means of actual or threatened force.” 18 U.S.C. § 1951(b)(1).
Thus, to secure a conviction for a Hobbs Act robbery, the Government does not have to prove
that a defendant used force, since a showing that he merely threatened to use force suffices. That
means that the Government can secure a conviction for an attempted Hobbs Act robbery by
proving that the defendant attempted to threaten to use force, which is not a crime of violence

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under § 924(c) because the elements clause asks the question whether the felony offense at issue
“has as an element the use, attempted use, or threatened use of physical force against the person
or property of another.” 18 U.S.C. § 924(c)(3)(A). Attempted murder is different because, as
discussed above, every attempt to commit murder necessarily involves the attempted use of force
against another. See, e.g., Pastore, 83 F.4th at 121–22 (“Because Delligatti’s conviction for
attempted murder in aid of racketeering under 18 U.S.C. § 1959(a)(5) is premised on the predicate
crime of attempted murder under New York law, which constitutes a crime of violence as defined
in the elements clause of section 924(c), we conclude that Delligatti’s conviction for attempted
murder in aid of racketeering under section 1959(a)(5) is necessarily a crime of violence.”);
Alvarado-Linares, 44 F.4th at 1348 (“Because one cannot attempt . . . federal murder without
attempting to use force, Alvarado-Linares was convicted of crimes of violence under the elements
clause when he was convicted of VICAR attempted murder.”). Taylor did not undermine the
decision in Woods that VICAR attempted murder is a crime of violence under the elements
clause.
Defendant argues that a conviction under Tenn. Code Ann. § 39-13-210 should not count
as a crime of violence because it includes a type of killing (killing by way of unlawful drug
distribution) that is nonviolent. However, that argument does not aid him because the statute is
divisible, and he was convicted under a different subsection. He also argues that § 39-13-210’s
definition of “attempted” matches the federal definition. However, the current version of the
statute, which was the same version that was in effect when Defendant was convicted, does not
contain the words “attempt” or “attempted.” See Tenn. Code Ann. § 39-13-210. So, this argument
is unavailing. See also United States v. Parham, 2024 WL 4511825 (6th Cir. Oct. 17, 2024)

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(holding that the defendant’s Tennessee conviction for attempted second-degree murder
constituted “crime of violence” under Sentencing Guidelines).
In summary, Defendant’s § 2255 motion is DENIED because he waived the right to
collaterally challenge his conviction when he signed his plea agreement, he procedurally
defaulted on the arguments he raises in his motion because he did not previously raise them on
appeal, and the substantive law does not support his position.
Appeal Issues
A § 2255 movant may not proceed on appeal unless a district or circuit judge issues a
certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1); Fed. R. App. P. 22(b)(1). A COA
may issue only if the movant has made a substantial showing of the denial of a constitutional
right. 28 U.S.C. § 2253(c)(2)-(3). A substantial showing is made when the movant demonstrates
that “reasonable jurists could debate whether (or, for that matter, agree that) the [motion] should
have been resolved in a different manner or that the issues presented were ‘adequate to deserve
encouragement to proceed further.’” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (quoting
Slack v. McDaniel, 529 U.S. 473, 484 (2000)). “If the [motion] was denied on procedural
grounds, the [movant] must show, ‘at least, that jurists of reason would find it debatable whether
the [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.’” Dufresne
v. Palmer, 876 F.3d 248, 252-53 (6th Cir. 2017) (per curiam) (quoting Slack, 529 U.S. at 484).
In this case, reasonable jurists would not debate the correctness of the Court’s decision
to deny the motion. Because any appeal by Defendant does not deserve attention, the Court
DENIES a certificate of appealability.

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Pursuant to Federal Rule of Appellate Procedure 24(a), a party seeking pauper status on
appeal must first file a motion in the district court, along with a supporting affidavit. Fed. R.
App. P. 24(a). However, Rule 24(a) also provides that if the district court certifies that an appeal
would not be taken in good faith, the prisoner must file his motion to proceed in forma pauperis
in the appellate court. Id.
In this case, for the same reason it denies a COA, the Court CERTIFIES, pursuant to
Rule 24(a), that any appeal in this matter would not be taken in good faith. Leave to appeal in
forma pauperis is therefore DENIED.2
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. Thomas Anderson
United States District Judge
Date: November 26, 2024.

2

If Petitioner files a notice of appeal, he must also pay the full $505.00 appellate filing fee or file
a motion to proceed in forma pauperis and supporting affidavit in the Sixth Circuit Court of
Appeals within thirty days.
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