Logan v. United States of America

Filing 7

ORDER denying 1 Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence. Signed by Judge Samuel H. Mays, Jr on 9/8/2020. (Mays, Samuel)

Case 2:18-cv-02319-SHM-tmp Document 7 Filed 09/08/20 Page 1 of 6

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

CEDRIC LOGAN, JR.,
Movant,
Cv. No. 2:18-cv-02319-SHM-tmp
Cr. No. 2:14-cr-20303-SHM-2

v.
UNITED STATES OF AMERICA,
Respondent.

ORDER DENYING MOTION PURSUANT TO 28 U.S.C. § 2255,
DENYING A CERTIFICATE OF APPEALABILITY,
CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH,
AND
DENYING LEAVE TO PROCEED IN FORMA PAUPERIS ON APPEAL

Before the Court are the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct
Sentence by a Person in Federal Custody (“§ 2255 Motion,” ECF No. 1) filed by Movant Cedric
Logan, Jr., Bureau of Prisons (“BOP”) register number 27375-076, an inmate at the Federal
Correctional Institution Low in Forrest City, Arkansas; the Response of the United States in
Opposition to Defendant’s § 2255 Motion (ECF No. 5); and Petitioner’s Reply to Government’s
Response in Opposition to His 2255 Motion (ECF No. 6). The § 2255 Motion is without merit,
and it is DENIED.
I.

BACKGROUND
On October 30, 2014, a federal grand jury returned an indictment charging Logan on two

counts: robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 (Hobbs Act
robbery) (Count 1); and knowingly using and carrying a firearm during and in relation to Hobbs
Act robbery in violation of 18 U.S.C. § 924(c) (Count 2). (See Cr. No. 14-20303, ECF No. 1 at

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PageID 1-2.) On September 2, 2015, Logan pled guilty, pursuant to a written plea agreement, to
Count 2 of the indictment. (See ECF Nos. 93 & 94.) Logan entered “a voluntary plea of guilty to
Count 2 of the Indictment, that the defendant knowingly used, carried and brandished a firearm
during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). . . . because he is,
in fact, guilty of the offense charged in Count 2.” (ECF No. 94 at PageID 144.) The parties agreed
that Logan did not discharge the firearm. (Id.) The Government agreed to recommend that Logan
receive full credit for acceptance of responsibility and that he be sentenced to the mandatory
minimum period of imprisonment. (Id. at PageID 145.) Logan waived his right to appeal any
sentence within the applicable guidelines range. (Id. at PageID 145–46.) The waiver excluded
claims relating to prosecutorial misconduct and ineffective assistance of counsel. (Id. at PageID
146.)
On December 16, 2015, Logan was sentenced to 84 months in prison, to be followed by
three years of supervised release. (See ECF Nos. 102 & 103.) He did not appeal.

II.

THE § 2255 MOTION
On May 11, 2018, Logan filed the instant § 2255 Motion alleging that: (1) in light of

Sessions v. Dimaya, 138 S. Ct. 1204 (2018), and Mathis v. United States, 136 S. Ct. 2243 (2016),
his conviction under 18 U.S.C. § 924(c) was based on a definition of crime of violence that is no
longer valid and violates the Fifth Amendment Due Process Clause; and (2) in light of Mathis and
Sutton v. Quintana, No. 16-6534, 2017 WL 4677548 (6th Cir. July 12, 2017), he is actually
innocent of using or carrying a firearm in furtherance of a crime of violence based on Dimaya.
(ECF No. 1 at PageID 4-6.) Logan contends that his § 2255 Motion is timely because it is based

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on a right newly recognized by the United States Supreme Court in Dimaya and Mathis, which is
a case of statutory interpretation that applies retroactively. (Id. at PageID 33-34.)
III.

STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 2255(a),
[a] prisoner in custody under sentence of a court established by Act of Congress claiming
the right to be released upon the ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.

“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) (citation and internal quotation marks omitted).
IV.

ANALYSIS
Logan contends that using and carrying a firearm in relation to Hobbs Act robbery under

18 U.S.C. § 924(c) is not a crime of violence because the residual clause in § 924(c) is
unconstitutionally vague. (See ECF No. 6.) The Government argues, based on then current law,
that § 924(c)(3)(B) was not unconstitutionally vague and that Logan’s predicate offense of Hobbs
Act robbery qualified as a crime of violence. (ECF No. 5 at PageID at PageID 46-48.)1 After
the briefs were filed, the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319
(2019), directly addressed whether the residual clause in § 924(c) was unconstitutionally vague.

The Government also argues that Logan’s § 2255 Motion is time-barred and that he
cannot rely on § 2255(f)(3) to excuse the untimely filing because Mathis is not a new rule made
retroactive by the Supreme Court and Dimaya does not invalidate § 924(c). (ECF No. 5 at PageID
44.)
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Eighteen U.S.C. § 924(c)(1) provides that “any person who, during and in relation to any
crime of violence . . . uses or carries a firearm, or who in furtherance of any such crime, possesses
a firearm,” shall, in addition to the punishment imposed for that crime of violence, receive a
consecutive sentence of not less than five years. 18 U.S.C. §§ 924(c)(1)(A), (D). Section 924(c)(3)
defines “crime of violence” as any felony that:
(A) has as an element the use, attempted use, or threatened use of physical force
against the person or property of another (the “use-of-force clause”), or
(B) 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
(the “residual clause”).
18 U.S.C. § 924(c)(3)(A)-(B).
On June 25, 2019, the Supreme Court held that the residual clause at 18 U.S.C. §
924(c)(3)(B) is unconstitutionally vague. Davis, 139 S. at 2336. The Court relied on its holding
in Johnson v. United States, 576 U.S. 591 (2015), which invalidated the residual clause in the
Armed Career Criminal Act (“ACCA”), and Dimaya, which invalidated the residual clause in 18
U.S.C. § 16. Davis, 139 S. Ct. at 2336. Neither the Supreme Court nor the Sixth Circuit has held
that the substantive rule announced in Davis applies retroactively to cases on collateral review.
See Davis, 139 S. Ct. at 2354 (Kavanaugh, J., dissenting); see United States v. Ballanger, No. CV
3:08-CR-94-CRS, 2020 WL 1281241, at *2 (W.D. Ky. Mar. 17, 2020) (“it remains to be
determined whether Davis' holding will apply retroactively on collateral review”).2 Assuming

Federal courts of appeal that have considered the matter have determined that Davis is
retroactively applicable to cases on collateral review. See, e.g., In re Mullins, 942 F.3d 975, 979
(10th Cir. 2019) (“Welch dictates that Davis—like Johnson—'announced a substantive rule that
has retroactive effect in cases on collateral review.’” (quoting Welch v. United States, 136 S. Ct.
1257, 1268 (2016)); In re Hammoud, 931 F.3d 1032, 1039 (11th Cir. 2019) (“Davis announced a
new substantive rule, and Welch tells us that a new rule such as the one announced in Davis applies
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retroactivity, the Court will consider the merits of Logan’s claim under Davis. The Court first
looks to whether Hobbs Act robbery, the predicate offense for Logan’s § 924(c) conviction, is a
crime of violence.
Hobbs Act robbery is defined as “the unlawful taking or obtaining of personal property
from the person or in the presence of another, against his will, by means of actual or threatened
force, or violence, or fear of injury, . . . .” See 18 U.S.C. § 1951(b)(1). As defined, Hobbs Act
robbery “clearly ‘has as an element the use, attempted use, or threatened use of physical force
against the person or property of another’ as necessary to constitute a crime of violence under §
924(c)(3)(A).” United States v. Gooch, 850 F.3d 285, 291–92 (6th Cir. 2017); see also United
States v. Holmes, 797 F. App'x 912 (6th Cir. 2019) (reaffirming Gooch’s holding that Hobbs Act
robbery qualifies as a crime of violence under the use-of-force clause, following the Supreme
Court’s decision in Davis). (See ECF No. 5 at PageID 48.) Because Hobbs Act robbery is a crime
of violence under § 924(c)(3)(A) and Logan has admitted using a firearm in the commission of
Hobbs Act robbery, the holding in Davis, invalidating the residual clause, does not entitle Logan
to habeas relief. See United States v. Henderson, 798 F. App'x 468, 469 (11th Cir. 2020) (although
Davis invalidated the residual clause in § 924(c)(3)(b), the predicate offense of Hobbs Act robbery
qualifies as a crime of violence under the use-of-force clause in § 924(c)(3)(A)). Logan’s claims
are without merit.

retroactively to criminal cases that became final before the new substantive rule as announced.”);
see United States v. Bowen, 936 F.3d 1091, 1097–98 (10th Cir. 2019).
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V.

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CONCLUSION
For the reasons stated above, Logan’s § 2255 Motion is DENIED.

VI.

APPELLATE ISSUES
A certificate of appealability is DENIED because Movant has not made a substantial

showing of a “viable claim of the denial of a constitutional right” or that the issues presented are
“adequate to deserve encouragement to proceed further.” See Slack v. McDaniel, 529 U.S. 473,
475 (2000) (citing Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983)); see also 28 U.S.C. §
2253(c); Fed. R. App. P. 22(b).
To the extent Movant may apply to proceed on appeal in forma pauperis, the Court
CERTIFIES, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal would not be taken in “good
faith,” and, therefore, DENIES leave to appeal in forma pauperis. See Fed. R. App. P. 24(a);
Kincade v. Sparkman, 117 F.3d 949, 952 (6th Cir. 1997).
IT IS SO ORDERED this 8th day of September, 2020.

s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE

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