Slade v. UNITED STATES OF AMERICA
Filing
36
MEMORANDUM OPINION AND ORDER DENYING § 2255 MOTION [DKT. NO. 1 AND DISMISSING CASE WITH PREJUDICE: The Court DENIES Slades Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence (Dkt. No. 1 ) and DISMISSES this case WITH PREJUDICE. Signed by Senior Judge Irene M. Keeley on 8/16/19. Attachments: # 1 Certified Mail Return Receipt)(jss)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
RUBIN C. SLADE, JR.,
Petitioner,
v.
Civil Action No. 2:16CV53
Criminal Action No. 2:03CR1
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
Pending before the Court is the Motion Under 28 U.S.C. § 2255
to Vacate, Set Aside, or Correct a Sentence filed by the pro se
petitioner, Rubin C. Slade, Jr. (“Slade”) (Dkt. No. 1).1 For the
reasons that follow, the Court DENIES the motion (Dkt. No. 1) and
DISMISSES this case WITH PREJUDICE.
I. BACKGROUND
On June 16, 2004, a jury convicted Slade of one count of armed
bank robbery, in violation of 18 U.S.C. §§ 2113(a) and (d), and one
count of brandishing a firearm in relation to a crime of violence,
in violation of 18 U.S.C. § 924(c)(1)(A)(ii) (Case No. 2:03CR1,
Dkt. No. 69). Both convictions arose out of a December 5, 2002 bank
robbery in Elkins, West Virginia. Id. After receiving concurrent
life sentences of imprisonment on both counts on March 31, 2005
1
Unless otherwise
2:16CV53.
noted,
docket
numbers
refer
to
Case
No.
SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
(Case No. 2:03CR1, Dkt. No. 94), Slade appealed to the United
States Court of Appeals for the Fourth Circuit, which affirmed his
conviction and sentence on June 6, 2007 (Case No. 2:03CR1, Dkt.
Nos. 96, 118). Subsequently, on June 16, 2009, Slade filed his
first motion under 28 U.S.C. § 2255 to vacate, set aside, or
correct
a
sentence,
which
was
denied
as
untimely
(Case
No.
2:09CV72, Dkt. Nos. 1, 8).
Slade filed his second motion under § 2255 on May 9, 2016
(Case No. 2:16CV38, Dkt. No. 1), which United States Magistrate
Judge Michael J. Aloi recommended the Court deny as a second or
successive motion (Case No. 2:16CV38, Dkt. No. 4). After receiving
a copy of this recommendation, Slade sought certification from the
Fourth
Circuit
to
file
a
second
or
successive
motion
under
§ 2255(h) (Dkt. No. 136). After he received certification (Case No.
2:03CR1, Dkt. No. 141), Slade filed the instant § 2255 motion (Dkt.
No. 1 at 5-11), which is fully briefed and ripe for disposition.2
II. APPLICABLE LAW
Title 28 U.S.C. § 2255(a) permits federal prisoners, who are
2
After receiving certification, a petitioner has one year to file
a second or successive motion. 28 U.S.C. § 2255(f)(3). Slade filed
the instant motion two days after receiving certification,
satisfying the procedural requirement to file a second or
successive motion (Dkt. No. 1).
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
in custody, to file a motion to vacate, set aside, or correct a
sentence
if
“the
sentence
was
imposed
in
violation
of
the
Constitution or laws of the United States,” if “the court was
without jurisdiction to impose such sentence,” or if “the sentence
was in excess of the maximum authorized by law, or is otherwise
subject to collateral attack.”
A petitioner bears the burden of
proving any of these grounds by a preponderance of the evidence.
See Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).
In this case, relying on Johnson v. United States, 135 S. Ct.
2551 (2015), Slade alleges that his sentence was imposed in
violation of the Constitution of the United States. In Johnson, the
Supreme Court reviewed a challenge to the Armed Career Criminal Act
(“ACCA”). Under the ACCA, an individual who violates 18 U.S.C.
§ 922(g), and has three previous convictions for a “violent
felony,” is subject to an enhanced sentence of not less than
fifteen years. 18 U.S.C. § 924(e)(1). The term “violent felony” is
defined within the ACCA in three different clauses: the force
clause, the enumerated clause, and the residual clause. Together,
these clauses define a “violent felony” to include “any crime
punishable by imprisonment for a term exceeding one year . . .
that”:
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
(i) has as an element the use, attempted use,
or threatened use of physical force against
the person of another [(force clause)]; or
(ii) is burglary, arson, or extortion,
involves use of explosives [(enumerated
clause)], or otherwise involves conduct that
presents a serious potential risk of physical
injury to another [(residual clause)].
18 U.S.C. § 924(e)(2)(B).
In
Johnson,
enhancement
under
the
§
defendant
924(e)(1)
was
subject
because
he
to
had
a
sentencing
three
previous
convictions for a violent felony. Johnson, 135 S. Ct. at 2556. The
Supreme Court, however, determined that one of the defendant’s
three previous convictions was not a violent felony under the ACCA
because the residual clause on which the sentencing court had
relied was unconstitutionally vague in violation of the Due Process
Clause of the Fifth Amendment. Id. at 2563. Subsequently, in Welch
v. United States, 136 S. Ct. 1257, 1265 (2016), the Supreme Court
held that the new rule of constitutional law announced in Johnson
was a substantive rule to be applied retroactively on collateral
review.
III. DISCUSSION
Based on the Supreme Court’s decisions in Johnson and Welch,
Slade asserts four grounds for relief, which the Court will address
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
seriatim.
A.
Ground One
Slade first asserts that his concurrent life sentences should
be vacated because the new rule of constitutional law announced in
Johnson, and made retroactive in Welch, should apply to the
residual clause in § 3559(c) (Dkt. No. 1 at 5). The Government
contends Slade’s life sentences were not based on the residual
clause in § 3559(c) (Dkt. No. 9 at 7-8), and argues further that,
even had they been, Johnson’s new rule of constitutional law should
not apply to § 3559(c) (Dkt. No. 9 at 10, n. 9).
Under § 3559(c), or the “three-strikes statute,” an individual
“who is convicted of a serious violent felony” is subject to
mandatory life imprisonment if the individual has previously been
convicted of “2 or more serious violent felonies.” 18 U.S.C.
§ 3559(c)(1). Like the ACCA, § 3559(c)(2)(F) defines a “serious
violent felony” in three clauses: the enumerated clause, the force
clause, and the residual clause.
The enumerated clause identifies, by name, several offenses
that are “serious violent felonies,” which include both state and
federal offenses. Id. § 3559(c)(2)(F)(i). The force clause provides
that a “serious violent felony” also includes “any other offense
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
punishable by a maximum term of imprisonment of 10 years or more
that has as an element the use, attempted use, or threatened use of
physical
force
against
the
person
of
another.”
Id.
§ 3559(c)(2)(F)(ii). Finally, the residual clause further defines
a “serious violent felony” as “any other offense punishable by a
maximum term of imprisonment of 10 years or more . . . that, by its
nature, involves a substantial risk that physical force against the
person of another may be used in the course of committing the
offense.”
Id.
Although
the
language
of
this
residual
clause
resembles closely that of the ACCA’s residual clause, the Supreme
Court has not yet applied the new rule of constitutional law
articulated in Johnson to the residual clause of § 3559(c).
Even if the residual clause of § 3559(c) is unconstitutionally
vague, as Slade contends, see United States v. Goodridge, No.
96-30015, 2019 WL 3306956, at *10 (D. Mass. July 23, 2019) (holding
same), he is not entitled to relief here because, under the
enumerated clause of § 3559(c), he has two qualifying predicate
convictions for armed robbery under Virginia common law. The
statute’s residual clause therefore is not implicated.
To determine whether a previous conviction qualifies as a
predicate offense, courts apply the categorical approach expounded
6
SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
in
Taylor
v.
categorical
United
States,
approach,
courts
495
U.S.
“may
575
‘look
(1990).
only
to
Under
the
statutory
definitions’——i.e., the elements——of a defendant’s prior offenses,
and not ‘to the particular facts underlying those convictions.’”
Id. at 261 (emphasis in original) (quoting Taylor, 495 U.S. at
600). If the elements of a defendant’s prior offense are the same
as, or narrower than, the elements of the generic offense, then the
previous conviction qualifies as a predicate offense. Id. However,
if the elements of the prior offense are broader than the elements
of the generic offense, the previous conviction does not qualify as
a predicate offense. Id.
Here, Slade’s 1977 and 1981 Virginia convictions for armed
robbery (Case No. 2:03CR1, Dkt. No. 95), subject him to life
imprisonment
under
§
3559(c).
Although
the
presentence
investigation report and Virginia court documents (Dkt. Nos. 27-1,
33, 33-1) identify both convictions as “armed robbery,” Virginia
does not define armed robbery as a separate offense from robbery.
Robert J. Bacigal, Virginia Practice Series: Criminal Offenses and
Defenses in Virginia Robbery (2018). In other words, if robbery is
committed while armed, as it twice was by Slade, the defendant is
only convicted of the offense of robbery. Therefore, to determine
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
whether Slade’s prior convictions qualify as predicate offenses
under § 3559(c)(2)(F)(i), which lists robbery as an enumerated
offense, the Court must compare the Virginia definition of robbery
to the generic definition of robbery.
In Virginia, robbery is not defined by statute,3 but is a
common law crime defined as “the taking, with intent to deprive the
owner permanently, of personal property, from his person or in his
presence, against his will, by violence or intimidation.” Ayres v.
Commonwealth, 161 S.E. 888, 899 (Va. 1932) (citing Green v.
Commonwealth,
112
S.E.
562,
563
(Va.
1922);
Brookman
v.
Commonwealth, 145 S.E. 358 (Va. 1928)).
To ascertain the generic definition of robbery, the Court
looks to § 3559(c)(2)(F)(i), which references three definitions of
robbery. Among these definitions, is 18 U.S.C. § 2111, which
provides the most generic definition. Compare 18 U.S.C. § 2111 with
18 U.S.C. §§ 2113 and 2118. Specifically, § 2111 provides that
“whoever . . . by force and violence, or by intimidation, takes or
attempts to take from the person or presence of another anything of
value” has committed robbery. 18 U.S.C. § 2111.
3
The
punishment
for
robbery
Va. Code Ann. § 18.2-58 (2019).
8
is
defined
by
statute.
SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
A comparison of the Virginia definition of robbery and the
generic definition of robbery in § 2111 leads to the conclusion
that the elements of Virginia robbery are narrower than the
elements of the generic definition of robbery found in § 2111.
While § 2111 requires the taking of “anything of value,” the
Virginia
definition
requires
the
“taking
.
.
.
of
personal
property.” Obviously, “anything of value” encompasses more than
just “personal property.”
Additionally, § 2111 requires the taking to be accomplished
“by force and violence, or by intimidation,” while the Virginia
definition requires the taking to be accomplished “by violence or
intimidation.” In this respect, the two definitions are virtually
identical inasmuch as violence is necessarily accompanied by force.
Furthermore, § 2111 also requires the taking to be “from the person
or presence of another,” while the Virginia definition requires the
taking to be “from [the owner’s] person or in his presence.” Again,
these two definitions are virtually identical.
Finally, the Virginia definition adds that the taking must be
done “with the intent to deprive the owner permanently” and
“against [the owner’s] will.” As these additional elements are not
included in the definition of robbery in § 2111, the Virginia
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
definition is necessarily narrower. Given that, Slade’s Virginia
convictions for robbery qualify as predicate offenses under the
enumerated clause of § 3559(c).4
Slade’s reliance on United States v. Gardner, 823 F.3d 793
(4th Cir. 2016) to rebut this conclusion is misplaced. In Gardner,
the Fourth Circuit held that North Carolina common law robbery did
not qualify as a valid predicate for a sentencing enhancement under
the force clause of the ACCA. 823 F.3d at 804. But the Supreme
Court recently abrogated Gardner in Stokeling v. United States, 139
S. Ct. 544 (2019). Since then, the Fourth Circuit has concluded
that North Carolina common law robbery does, in fact, qualify as a
violent felony under the force clause of the ACCA. See United
States
v.
Dinkins,
928
F.3d
349,
357-58
(4th
Cir.
2019)
(recognizing abrogation). Nor do these cases have any effect on
Slade’s § 2255 motion given this Court’s finding that his robbery
convictions are valid predicates under the enumerated clause in
§ 3559(c)(2)(F)(i). Thus, the force clause in § 3559(c)(2)(F)(ii)
is not implicated.
4
It is also worth noting that, because Slade committed both
robberies while armed, his convictions cannot be considered
“nonqualifying felonies” under § 3559(c)(3)(A).
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
B.
Grounds Two and Three5
As his second ground, Slade asserts that, based on the new
rule
of
constitutional
law
announced
in
Johnson,
the
jury
instructions used in his trial were invalid (Dkt. No. 1). He
further argues that his conviction under § 924(c) should be vacated
because, following the reasoning in Johnson, the residual clause in
§ 924(c)(3)(B) is unconstitutionally vague. Id.
Slade was convicted of one count of armed bank robbery, in
violation of 18 U.S.C. §§ 2113(a) and (d), and one count of
brandishing a firearm in relation to a crime of violence (i.e., the
armed bank robbery), in violation of 18 U.S.C. § 924(c)(1)(A)(ii)
(Case No. 2:03-CR-1, Dkt. No. 69). He argues that his armed bank
robbery conviction does not qualify as a crime of violence under
the residual clause in § 924(c)(3)(B) because that clause is
unconstitutionally vague (Dkt. No. 1).6 Based on this reasoning,
Slade contends that his conviction under § 924(c) must be vacated.
The Government responds that Slade’s conviction under §§ 2113(a)
5
Because Slade effectively raises the same claim in ground three,
the Court addresses these arguments together.
6
Slade filed the instant petition before the Supreme Court held
the residual clause in § 924(c)(3)(B) to be unconstitutionally
vague. United States v. Davis, No. 18-431 (2019).
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
and (d) was deemed a crime of violence under the force clause in
§ 924(c)(3)(A), not the residual clause in
§ 924(c)(3)(B) (Dkt.
No. 9).
Under § 924(c)(1)(A)(ii), “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 . . . if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years.” The statute defines a
“crime of violence” using both the force clause and the residual
clause, 18 U.S.C. § 924(c)(3), which are nearly identical to those
clauses in the ACCA. Consequently, applying its reasoning in
Johnson, the Supreme Court recently announced that the residual
clause in § 924(c)(3) is also unconstitutionally vague. United
States v. Davis, No. 18-431 (2019). Thus, the force clause provides
the only valid definition of a “crime of violence,” that is “an
offense that is a felony and . . . 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).
To determine whether an offense qualifies as a crime of
violence under the force clause in § 924(c)(3)(A), the Fourth
Circuit employs the categorical approach. United States v. Fuertes,
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SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
805 F.3d 485 (4th Cir. 2015). Utilizing this approach, the court
has held that bank robbery, in violation of § 2113(a), qualifies as
a crime of violence under the force clause. United States v.
McNeal, 818 F.3d 141, 157 (4th Cir. 2016). Armed bank robbery, in
violation of § 2113(d), also qualifies as a crime of violence under
the same force clause because bank robbery is a lesser-included
offense of armed bank robbery. Id.
Following this precedent, Slade’s conviction for armed bank
robbery in violation of §§ 2113(a) and (d) plainly qualifies as a
crime of violence under the force clause of § 924(c)(3)(A), and is
countable as a third strike under § 3559(c). Therefore, Slade’s
second claim under ground two is without merit.
Notably, Slade’s third argument challenging the Court’s jury
instructions fails for the same reason. He contends that, as a
result of the new rule of constitutional law announced in Johnson,
the jury instructions incorrectly implied that §§ 2113(a) and (d)
qualified as crimes of violence under § 924(c)(3). But as set forth
above, both sections plainly qualify as crimes of violence under
the force clause in § 924(c)(3)(A). McNeal, 818 F.3d 141, 157.
C.
Ground Four
As his fourth ground, Slade asserts that his sentence under
13
SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
§
3559(c)
should
be
vacated
because
his
counsel
was
constitutionally ineffective (Dkt. No. 1 at 9-10). Pursuant to
Slade’s certification from the Fourth Circuit, his grounds for
relief must be based upon the new rule of constitutional law
announced in Johnson. As the Court has found, this clearly is not
so. Therefore, Slade’s claim of ineffective assistance of counsel
is untimely and second or successive.
IV. CERTIFICATE OF APPEALABILITY
Pursuant
to
Rule
11(a)
of
the
Rules
Governing
§
2255
Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant” in such cases. If the court denies the certificate, “the
parties may not appeal the denial but may seek a certificate from
the court of appeals under Federal Rule of Appellate Procedure 22.”
28 U.S.C. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability
in
this
matter
because
Slade
has
not
made
a
“substantial showing of the denial of a constitutional right.” See
28 U.S.C. § 2253(c)(2). A petitioner satisfies this standard by
demonstrating
that
reasonable
jurists
would
find
that
any
assessment of the constitutional claims by the district court is
14
SLADE V. UNITED STATES
2:16CV53
2:03CR1
MEMORANDUM OPINION AND ORDER DENYING § 2255
MOTION [DKT. NO. 1] AND DISMISSING CASE WITH PREJUDICE
debatable or wrong and that any dispositive procedural ruling by
the
district
court
is
likewise
debatable.
See
Miller–El
v.
Cockrell, 537 U.S. 322, 336–38 (2003). Upon review of the record,
the Court concludes that Slade has failed to make the requisite
showing and DENIES a certificate of appealability.
V. CONCLUSION
For the reasons discussed, the Court DENIES Slade’s Motion
Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct a Sentence
(Dkt. No. 1) and DISMISSES this case WITH PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk to enter a separate judgment
order, to transmit copies of both orders to counsel of record and
the pro se petitioner, certified mail, return receipt requested,
and to strike this case from the Court’s active docket.
DATED: August 16, 2019
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
15
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