Royer v. Wilson

Filing 9

MEMORANDUM OPINION. Signed by District Judge Leonie M. Brinkema on 11/4/2014. (rban, )

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
RANDALL TODD ROYER,
Petitioner,

1:14cv801

ERIC

D.

(LMB/IDD)

l:03cr296

v.

(LMB)

WILSON,

Respondent
MEMORANDUM

OPINION

Randall Todd Royer ("Royer" or ''petitioner") , a federal
inmate housed in the Eastern District of Virginia and proceeding

pro se, has filed a Petition For Writ Of Habeas Corpus pursuant
to 28 U.S.C.
18

U.S.C.

§ 2241,

§ 924(c)

in which he challenges his conviction under

as invalid because the Fourth Circuit has

recently narrowed its interpretation of the ''crime of violence"

predicate for convictions under § 924 (c) .

Respondent has filed

an opposition to Royer's petition, and Royer's time to reply to
respondent's opposition has expired.
ripe for adjudication.

Therefore,

this matter is

For the reasons that follow,

Royer's

petition for habeas corpus will be dismissed for lack of
jurisdiction.
I.

B7\CKGR0UND

The following material facts are uncontroverted.

On June

25, 2003, a grand jury returned an indictment charging Royer and
ten other individuals with 41 counts, including conspiracy under

18 U.S.C.

§ 371, acquisition of a firearm with intent to engage

in a crime of violence,
U.S.C.

§ 960,

and violations of the Neutrality Act,

18

arising out of their preparations for violent

jihad overseas.

Mem. Op. of Feb. 15, 2012, at 2.1

In August and September of 2003,

co-conspirators,

Muhammed Aatique,

four of the

Donald Thomas Surratt II, Yong Ki Kwon,

and Khwaja Mahmood Hasan,

entered into plea

agreements with the government and pleaded guilty to various
charges of the indictment.

Id.

at 3.

As a result of new

information obtained from these four co-conspirators,

who were

cooperating with the government pursuant to their plea
agreements, the government obtained a 32-count superseding
indictment against Royer and the remaining defendants on

September 25, 2003.

with:

Id.

Fourteen of those counts charged Royer

various conspiracies, including a conspiracy to violate

the Neutrality Act, to engage in armed hostility against the
United States under 18

support to the Taliban,

U.S.C.

§ 2390,

al Qaeda,

and to contribute material

and LET; multiple firearm

offenses in violation of 18 U.S.C. § 924; and aiding and
abetting and substantive violations of the Neutrality Act.

Id.

1 The facts in this section are based on the fuller factual

background provided in the Memorandum Opinion of February 15,
2012,
§

which dismissed Royer's motion to vacate under 28 U.S.C

2255.

On January 16, 2004,

Royer,

who was represented by counsel,

pleaded guilty to a two-count criminal information under a

written plea agreement requiring his cooperation with the
government in its prosecution of the remaining defendants.

Id.

Count One of the criminal information, the only count at issue
in this petition,

charged that Royer:

[d]id unlawfully and knowingly aid and abet the use
and discharge of a semi-automatic pistol by Masoud
Khan, Yong Kwon, Mohammad Aatique, and Khwaja Hasan in
Pakistan during, in relation to, and in furtherance of
. the conspiracy [to commit a crime of violence]
charged in Count One of the Indictment . . .

in violation of 18 U.S.C. 924(c).

Id_^ at 4.

Count One of the superseding indictment,

to which Count One

of the criminal information refers, charged a conspiracy to

commit five offenses against the United States and alleged two
separate objects of that conspiracy.

Id.

Royer, however,

limited his admission of guilt to the first object of the
conspiracy,

id. at 14 n.7,

which was:

to prepare for and take

part in military expeditions to be carried on from the United
States against the territory and dominion of foreign states,
districts,

and peoples with whom the United States was at peace,

in violation of the Neutrality Act, 18 U.S.C. § 960, id. at 4.2
The penalties to which Royer was exposed under Count One of the

2 The second alleged object of the conspiracy was to enlist and
engage with intent to serve in armed hostility against the
United States,

in violation of 18 U.S.C.

Feb.

at

15,

2012,

4.

§ 2390.

Mem. Op. of

criminal information included a mandatory minimum sentence of
ten years to a maximum of life imprisonment.

Id.

Count Two of the criminal information charged Royer with

aiding and abetting the carrying of an explosive during the
commission of a felony that may be prosecuted in a U.S. court,

in violation of 18 U.S.C. §§ 2, 844(h) (2), and 3238.
n.5.

Id^_ at 8

That offense carried, among other penalties, a mandatory

term of incarceration of ten years,
to the sentence

on Count One.

which had to run consecutive

Id.

Based on the Statement of Facts attached to the plea

agreement and Royer's representations during the plea colloquy,
the Court accepted his guilty pleas.

Id. at 4, 8.

On April 9,

2004, Royer was sentenced to 20 years imprisonment, consisting
of 120 months on Count One and 120 months on Count Two, to be
served consecutively,

as well as three years of supervised

release on each count.
conviction

or

sentence.

On March 16,

2009,

Id. at 8.

He did not appeal either his

Id.

Royer filed a motion under 28 U.S.C.

§ 2255 to vacate only the conviction as

gateway claim of actual innocence.
untimely; however,

to Count One based on a

The motion was dismissed as

the Court also found that even if the motion

had not been untimely,

it would have failed on the merits

because Royer was unable to establish his actual innocence of
the offense to which he pleaded guilty and also could not

establish his actual innocence of the other charges that were
dropped in consideration of his guilty pleas.
(citing Bousley v. United States,

523 U.S.

614,

Schlup v. Delo, 513 U.S. 298, 327-28 (1995)).
the dismissal of his § 2255 motion on April 16,
voluntarily dismissed the appeal on June 5,
II.

STANDARD OF

Id. at 18-19
624

(1998);

Royer appealed
2012, but then

2012.

REVIEW

Section 2255 is the primary means by which a federal
prisoner may collaterally attack a conviction and sentence.

Rice v. Rivera, 617 F.3d 802, 807 (4th Cir. 2010)

See

(per curiam).

"[T]hose convicted in federal court are required to bring
collateral attacks challenging the validity of their judgment
and sentence by filing a motion to vacate sentence pursuant to

[§ 2255]."

IcL at 805 (quoting In re Vial, 115 F.3d 1192, 1194

(4th Cir. 1997)

(en banc)).

A prisoner may only bring a

collateral attack under § 22413 if § 2255 is "inadequate or
ineffective to test the legality of [his] detention."

In re

Jones, 226 F.3d 328, 332-33 (4th Cir. 2000) (quoting 28 U.S.C. §
2255(e)).

Under limited circumstances,

ineffective" clause,

In

Boumediene v.

the "inadequate or

known as the "savings clause," permits a

Bush,

the U.S.

Supreme Court struck down

paragraph (e) of 28 U.S.C. § 2241 as an unconstitutional
suspension of the writ of habeas corpus.
553 U.S. 723, 732-33
(2008) (holding that aliens designated as enemy combatants and
detained at the U.S. Naval Station at Guantanamo Bay, Cuba, have

the constitutional privilege of habeas corpus).
of § 2241, however, remains intact.

The remainder

federal prisoner to bring a second or successive habeas petition

pursuant to § 2241, despite the limitations imposed by § 2255.
See

id.

at

333.

In considering whether the savings clause permits a
petitioner to bring a second or successive petition pursuant to
the Fourth Circuit has developed a three-pronged test.

§ 2241,

Section 2255 is deemed inadequate or ineffective,

and § 2241 may

therefore be used to attack a federal conviction,

when:

(1)

at

the time of the conviction,

settled law of this

circuit or the Supreme Court established the
of

the

direct

conviction;
appeal

and

(2)

first

subsequent

to

§ 2255 motion,

the
the

legality

prisoner's
substantive

law
changed
such
that
the
conduct
of
which
the
prisoner was convicted is deemed not to be criminal;
and (3) the prisoner cannot satisfy the gatekeeping
provisions of § 2255 because the new rule is not one
of

constitutional

Id. at 333-34.

law.

Section 2255 will not be considered inadequate

or ineffective simply because a petitioner is denied relief

under that provision or because a petitioner is barred from

filing a successive § 2255 motion.
F.3d 257, 261 n.2
at

1194 n.5);

Dobre,

(4th Cir. 2002)

In re Jones,

211 F.3d 876, 878

See San-Miguel v. Dove, 291
(citing In re Vial,

226 F.3d at 333;

(5th Cir. 2000)

115 F.3d

see also Tolliver v.

(per curiam)

("We join

our sister circuits that have held that a prior unsuccessful
§ 2255 motion,

successive'

or the inability to meet

. . . [the]

'second or

requirement [of the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, § 105,

110 Stat.

1214,

1220],

does not make § 2255 inadequate or

ineffective.").
III.

DISCUSSION

Royer argues that a recent change in substantive,

Fourth

Circuit law has rendered the conduct underlying his conviction

on Count One non-criminal.
1.

Pet. Writ of Habeas Corpus ("Pet."

Count One charged Royer with violating 18 U.S.C.

§ 924(c),

which states in pertinent part:

(1) (A) Except to the
sentence is otherwise

extent that a greater minimum
provided by this subsection or

by any other provision of law,
and

in

relation

to

any

any person who,

crime

of

during

violence

(including a crime of violence . . . that provides for
an enhanced punishment if committed by the use of a
deadly or dangerous weapon or device) for which the
person may be prosecuted in a court of the United
States,
uses
or
carries
a
firearm,
or
who,
in

furtherance of any such crime, possesses a firearm,
shall, in addition to the punishment provided for such
crime

of

violence

.

.

.—

(i) be sentenced to a term of imprisonment of not less
than 5 years;
(ii)

if

the

firearm

is

brandished,

be

sentenced

to

a

(iii) if the firearm is discharged, be sentenced to
term of imprisonment of not less than 10 years.

a

term of imprisonment of not less than 7 years; and

(3)

For purposes of

this subsection the term "crime of

violence" means an offense that

is a

felony and—

(A)
has as an element
the use,
attempted use,
or
threatened use of physical force against the person or
property of another, 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.

18

U.S.C.

§ 924 (c) .

Specifically,

Royer contends that the methodology for

determining whether a predicate offense is a "crime of violence"
for purposes of § 924 (c)

has changed such that a violation of

the Neutrality Act,

18 U.S.C.

crime of violence.

Pet.

1-2.

§ 960,

no longer constitutes a

Royer further argues that "§ 2241

is the appropriate vehicle for this claim because the change in
law occurred subsequent to the filing of his § 2255 motion,
depriving him of the chance to raise the issue in his first
collateral attack" and because he meets the three-pronged Jones
test.

Pet.

2,

15.

Conversely, the government argues that although Royer may

satisfy the third prong of the Jones test, he cannot satisfy the
first two prongs because the law was not settled at the time of
Royer's conviction and because the law governing whether a
violation of the Neutrality Act constitutes a crime of violence

for purposes of § 924(c)
Habeas Corpus ("Resp.")

has not changed.
8, 13.

Resp.

Alternatively,

to Pet. Writ of

the government

asserts that Royer cannot obtain relief because he cannot show

that he is actually innocent of the charges that were dismissed
in consideration of his guilty pleas.

Resp.

15.

Because Royer has not satisfied the three-pronged Jones
test,

his claim falls outside the § 2255 savings clause and he

may not proceed under § 2241.

Accordingly, his petition under

§ 2241 must be dismissed for lack of jurisdiction.
617

F.3d at 807.

See Rice,

Even if Royer could proceed under § 2241,

his

petition would still fail because Royer has offered no reason
why the Court should reconsider its previous finding that he is
not actually innocent of the more serious, dismissed counts of
the superseding indictment,
United States,

523 U.S.

as is required under Bousley v.

614,

624

(1998).

A. First Prong

The first prong of the Jones test addresses whether,
the time of the conviction,

"at

settled law of this circuit or the

Supreme Court established the legality of the conviction."
re Jones,

226 F.3d at 333-34.

In

The government argues that Royer

cannot satisfy this prong because in 2004 when Royer was
convicted,

there was

no settled law as to whether a

violation of

the Neutrality Act constituted a "crime of violence" for

purposes of § 924(c).

Resp.

8-9.

On the other hand,

Royer

contends that his conviction under Count One was initially legal
because the Neutrality Act fit within the Fourth Circuit's thenexisting method of determining whether an offense constituted a

crime of violence for purposes of § 924(c).

Pet.

15,

17.

Before pleading guilty,

Royer and his co-defendants moved

to dismiss the § 924 (c) charges that were predicated on the

Neutrality Act on the ground that the Neutrality Act did not
constitute a crime of violence.

The parties'

briefs revealed no

prior case law specifically addressing whether the Neutrality
Act constituted a crime of violence for purposes of § 924(c).
This Court ruled that the Neutrality Act was a crime of
violence,

and the issue was not raised on appeal by Royer's co-

defendants who were convicted at trial.

See United States v.

Khan,

309 F.

Supp.

823

(E.D. Va.

2004),

aff'd in part,

remanded in part,

461 F.3d 477

(4th Cir.

2006),

as amended

(Sept. 7,

Ten years later,

2006).

2d 789,

there is still no authority

outside of this Court's original ruling with respect to whether
a violation of the Neutrality Act constitutes a predicate crime

of violence for purposes of § 924(c).

In this respect,

the law

regarding whether violating the Neutrality Act constituted a
crime of violence was unsettled at the time of Royer's
conviction and the first prong of Jones cannot be met.

Although no case law specifically addressed the Neutrality
Act issue,

Royer argues that the law was "settled" at the time

of his conviction,

thereby making his conviction legal,

because

violation of the Neutrality Act fit comfortably within the scope
of the statutory definition of "crime of violence," as that term
was then interpreted.

Pet.

15-18.

10

Specifically,

he argues that

when he was convicted,

the Fourth Circuit determined whether a

particular offense constituted a crime of violence by looking to
whether "most" of the instances of the offense presented "a

substantial risk that physical force against the person or

property of another may be used in the course of committing the
offense."

Aragon,

18 U.S.C.

§ 924(c)(3);

983 F.2d 1306,

see,

1315 (4th Cir.

e.g.,

1993)

United States v.

(finding that the

offense of assisting an escape was a crime of violence4 even
though "one could effectuate the escape of another without the
use of physical force" because "the majority of cases have
involved the use of physical force against either people or

property" (citations omitted)).
This argument mischaracterizes the state of the law at the
time because other than this Court,
on whether,

no court had actually ruled

under the Fourth Circuit's methodology,

of the Neutrality Act was a crime of violence.
therefore,

a violation

The issue was,

unsettled.

4 Although the Aragon court was interpreting "crime of violence"
as used in 18

U.S.C.

§

16,

the language of §

924(c)(3)

mirrors

that of § 16, and courts often use case law interpreting § 16 to
guide their analysis of § 924 (c) (3) . See, e.g., United States
v. Serafin, 562 F.3d 1105, 1108 (10th Cir. 2009) ("The Supreme
Court has yet to interpret the crime of violence language in
§ 924(c)(3)(B), but it has interpreted the language in
§ 16(b).").
11

B. Second Prong
Even

if

the

law were

Royer's conviction,
Jones prong,

to the

"settled"

on this

issue at the time of

Royer clearly cannot satisfy the second

under which a petitioner must show that "subsequent

[petitioner's] direct appeal and first § 2255 motion,

the

substantive law changed such that the conduct of which the

[petitioner] was convicted is deemed not to be criminal."
Jones,

226 F.3d at 334.

In re

This prong requires not only that the

substantive law has changed since the time of Royer's conviction
but also that the change has rendered his conduct non-criminal.
Relying on two en banc decisions,

Royer contends that the

Fourth Circuit has abandoned the "most cases" method of defining

crimes of violence and instead looks to whether "the full range
of conduct covered by the" statute falls within the definition
of a crime of violence.

Miguel,

701 F.3d 165,

First,

Pet.

171

8 (citing United States v. Torres-

(4th Cir.

2012)).

he relies on United States v.

Fourth Circuit held that,
North Carolina indecent

Vann,

in which the

under its detailed analysis of the

liberties statute,

violations of this

statute did not constitute a "violent felony" for purposes of
the Armed Career Criminal Act
73,

776

(4th Cir.

2011)

("ACCA").

(en banc)

(per curiam).

on United States v. Aparicio-Soria,

held that,

See 660 F.3d 771,

772-

He also relies

in which the Fourth Circuit

under its detailed analysis of the Maryland crime of

12

resisting arrest,

that crime did not qualify categorically as a

"crime of violence" within the meaning of U.S.
Guideline § 2L1.2
(4th Cir.

2014)

("re-entry Guideline").

Sentencing

See 740 F.3d 152,

153

(en banc).

Neither of these cases helps Royer because they did not
evaluate the Neutrality Act and did not address § 924 (c), which

defines "crime of violence" differently from the definition of
that term in the re-entry Guideline and from the definition of
"violent felony" in the ACCA.

Under the categorical approach,

courts compare the

statutory definition of the appropriate term,
"crime of violence" or a similar term,

[offense]

154.

at issue."

See,

whether it be

"with the elements of the

e.g., Aparicio-Soria,

740 F.3d at

Section 924(c)(3)(B), which applied to Royer's conviction,

defines "crime of violence" as any felony offense 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).

The

Neutrality Act states:

Whoever, within the United States, knowingly begins or
sets on foot or provides or prepares a means for or
furnishes
the
money
for,
or
takes
part
in,
any
military
carried
dominion

or
naval
expedition
or
enterprise
to
be
on
from
thence
against
the
territory
or
of any foreign prince or state, or of any
colony,
district,
or
people
with
whom the
United
States is at peace, shall be fined under this title or
imprisoned not more than three years, or both.

13

18 U.S.C. § 960.

Royer pleaded guilty to a conspiracy, one

object of which was to prepare for and take part in military
expeditions to be carried on from the United States against the
territory and dominion of foreign states, districts, and peoples
with whom the United States was at peace,

in violation of the

Neutrality Act.

As this Court has previously found,

preparing for and

taking part in a military expedition against a foreign country
is a felony offense 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.
See Khan,

309 F. Supp.

2d at 823.

Nothing in Royer's petition

or in the cases he cites provides any basis to change that
conclusion.

Accordingly,

the second prong is not satisfied because

Royer cannot show that the substantive law has changed such that
the conduct

of which

he

was

convicted

is

now deemed non

criminal .

C. Third Prong

The third prong of the Jones test is that the "prisoner
cannot satisfy the gatekeeping provisions of § 2255 because the

new rule is not one of constitutional law."

F.3d at 334.

In re Jones,

226

Here, if there is a new method for determining

14

whether an offense constitutes a crime of violence for purposes
of § 924(c),

it is a matter of statutory interpretation not of

constitutional law.

Because Royer's claim rests on an

interpretation of Fourth Circuit law rather than on a new rule
of constitutional law,

he cannot satisfy the gatekeeping

provisions limiting second or successive § 2255 motions.
re Jones,

226 F.3d at

329.

Therefore,

See In

had there been a change

in the law as to whether a violation of the Neutrality Act
constitutes a crime of violence,
test

the third prong of the Jones

would be satisfied.

As discussed above,

because Royer's claim does not satisfy

the first and second prongs of the Jones test,

he cannot rely on

the savings clause of § 2255 and his § 2241 petition is,
therefore,

not cognizable.

For these reasons,

Royer's petition

will be dismissed for lack of jurisdiction.
D. Actual

Innocence

Even if Royer could satisfy all three prongs of the Jones
test,

thereby entitling him to proceed by way of a § 2241

petition,

his petition would fail because he cannot establish

his actual innocence of the other counts in the superseding
indictment that were dropped in consideration of his guilty

pleas.

As this Court has previously found,

limitation on habeas relief applies with
^convictions based on guilty pleas.'"

15

the "general

'special force'

Mem.

Op.

of Feb.

to
15,

2012,

at 18 (quoting Bousley,

Bousley,

523 U.S. at 621

523 U.S. at 621);

see also

(indicating that "the circumstances

under which a guilty plea may be attacked on collateral review"
are "strictly limited").

Because Royer's petition is based on a claim of actual
innocence of an offense to which he pleaded guilty,
demonstrate that,

in light of all the evidence,

he "must

it is more

likely than not that no reasonable juror would have convicted

him."

Id^ at 623 (quoting Schlup v. Delo,

(1995))

513 U.S. 298, 327-28

(internal quotation marks omitted).

Moreover,

"where

the Government has forgone more serious charges in the course of

plea bargaining,

petitioner's showing of actual innocence must

also extend to those charges."
Peterson,

329 F.3d 934,

Id. at 624;

936 (7th Cir.

2003)

see also Lewis v.
(explaining that the

rationale behind the Bousley rule is that "the government would

not have dropped a good count in plea negotiations had it known
that the remaining count was invalid,
was indeed a good count,

the defendant would not have escaped

punishment had it not been dropped");
States,
8, 2012)

4:08-CR-77-FL-1,

and if the dropped charge

Brewington v. United

2012 WL 5463141,

at *3

("Under the rule stated in Bousley,

establish actual innocence for any

(E.D.N.C.

petitioner must

'more serious charges'

forgone by the government during plea bargaining.").

16

Nov.

Here,

14 counts in the superseding indictment were

dismissed in

favor of the two-count criminal

which Royer pleaded guilty.

information to

Mem. Op. of Feb. 15, 2012, at 22.

As Royer has previously acknowledged in his motion to vacate
under § 2255,

at least two of the 14 counts were "indisputably

more serious than those in the information."3

Id.

at 23.

two counts consisted of weapons charges under 18 U.S.C.
that alleged that Royer had aided and abetted Khan,

co-conspirators,

These

§ 924(c)

one of his

in the use and discharge of a machine gun and a

rocket-propelled grenade in furtherance of a crime of violence.

Id.

In dismissing Royer's motion to vacate under § 2255,

this

Court found that "there is no reasonable likelihood that Royer
would have been acquitted of any count in the superseding
indictment."

Id. at 24.

That finding is the law of this case,

and Royer offers no reasons to change that finding.

Royer does

not argue that the substantive law underlying any of the
dismissed counts has changed such that the Court should find him

actually innocent of those offenses that were "more serious"

In its opposition to Royer's motion to vacate under § 2255, the
government argued that two additional counts in the superseding
indictment—possession of an AK-47 in violation of § 924 (c) and
use and discharge of an AK-47—were "more serious" than the
counts to which Royer pleaded because they would have carried a
mandatory minimum sentence of 25 years under § 924(c)(1)(C)(i),
which is five years more than the total sentence Royer actually
received.
Mem. Op. of Feb. 15, 2012, at 23-24.
Further, the
government argued that six other counts out of the 14 that were
dismissed

were

Royer pleaded.

"more

Id.

serious"

than

at 24.
17

the

two

offenses

to

which

than the two counts to which he pleaded guilty.

Indeed,

Royer

did not respond at all to the government's actual innocence
argument.

Because Royer cannot show that he is actually innocent of
the more serious charges that were dismissed in favor of his

guilty pleas,

his habeas petition would be dismissed,

even if

there were jurisdiction to consider it.
IV.

CONCLUSION

For the reasons stated above,

Royer's § 2241 petition will

be dismissed for lack of jurisdiction by an appropriate Order to
be issued with this Memorandum Opinion.

Entered this _j_
Alexandria,

day of November, 2014.

Virginia

Leonie M. Brinkema

United States District Judge