Meadows v. United States of America
Filing
110
MEMORANDUM OPINION AND ORDER as to Desabe Louis Meadows, Jr.: Granting Respondent's 105 Objections to the PF&R; adopting the 103 Proposed Findings and Recommendations; denying 89 Motion to Vacate, Set Aside or Correct Sentence (2255) filed by Desabe Louis Meadows, Jr.; dismissing this case from the docket of the court. Signed by Judge John T. Copenhaver, Jr. on 4/17/2019. (cc: Judge; Magistrate Judge Tinsley; USA, counsel, deft) (slr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
DESABE LOUIS MEADOWS, JR.,
Movant,
v.
Civil No. 5:16-cv-05386
Criminal No. 5:06-cr-00190
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER
Pending is the movant’s Emergency Motion to Correct
Sentence Under 28 U.S.C. § 2255, filed on June 14, 2016, by his
counsel, the Federal Public Defender who was then Christian M.
Capece.
This action was previously referred to the Honorable
Dwane L. Tinsley, United States Magistrate Judge, for submission
to the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
On November 30, 2018, the magistrate judge entered his PF&R
recommending that the motion be granted, and the movant’s
judgment in the above-cited criminal action be vacated and set
aside.
The United States timely filed objections on December
14, 2018, to which the movant replied on December 19, 2018.
Upon an objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a district
court to ‘make a de novo determination of those portions of the
[magistrate judge’s] report or specified proposed findings or
recommendations to which objection is made.’”
Diamond v.
Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir.
2005) (emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
I.
Background
On April 3, 2007, the movant pled guilty in the abovecited criminal action to one count of being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1),
which carried a maximum sentence of ten years in prison and a
maximum term of supervised release of three years.
At
sentencing, the court found that the movant had committed at
least three prior violent felonies, thus meeting the statutory
criteria of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(1), subjecting him to a mandatory minimum sentence of
fifteen years, and a maximum term of supervised release of five
years.
Specifically, as set forth in the indictment, the movant
previously committed the following offenses:
a.
Convicted on or about April 22, 1986, in the
Court of Common Pleas Cuyahoga County, Ohio, of
felonious assault, in violation of Ohio Revised
Code § 2903.11; robbery in violation of Ohio
Revised Code § 2911.02; and breaking and entering
in violation of Ohio Revised Code § 2911.13; and
2
b.
Convicted on or about February 17, 1993, in the
Court of Common Pleas Cuyahoga Court, Ohio, of
felonious assault, in violation of Ohio Revised
Code § 2903.11.
Indictment, ECF # 1 at 1.
The movant was sentenced to serve 180 months in prison
followed by a five-year term of supervised release.
The
movant’s conviction and sentence were affirmed on appeal.
United States v. Meadows, 319 F. App'x 204, 205 (4th Cir. 2009),
cert. denied 556 U.S. 1203 (2009).
Following the Supreme Court’s decision in United
States v. Johnson, 135 S. Ct. 2551 (2015) (“Johnson II”)1, in
which the Court found the residual clause of the ACCA to be
unconstitutionally vague, the movant filed the instant motion
arguing that he no longer qualifies as an Armed Career Criminal.
Specifically, he argues that without the residual clause, the
definition of “violent felony” no longer covers at least three
of his prior convictions.
The magistrate judge agreed, finding
in his PF&R that: (1) movant’s 1986 robbery conviction is a
violent felony; but (2) movant’s 1986 and 1993 felonious assault
1
In Welch v. United States, 136 S. Ct. 1257 (2016), the Supreme
Court held that Johnson II constitutes a new substantive rule of
constitutional law that applies retroactively to cases on
collateral review.
3
convictions are not violent felonies.2
The United States objects
to the latter finding; no objection was made to the first.
II.
Discussion
The ACCA defines “violent felony” at 18 U.S.C. §
924(e)(2)(B) as follows:
(B)
The term “crime of violence” means any crime
punishable by imprisonment for a term exceeding one
year . . ., that –(i)
has as an element the use, attempted use, or
threatened use of physical force against the
person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical
injury to another.
After the Johnson II decision, the residual clause portion of
the definition -- “or otherwise involves conduct that presents a
serious potential risk of physical injury to another” -- is
struck for being unconstitutionally vague.
Accordingly, to be
considered a violent felony, the prior conviction must meet the
criteria of the force clause, (B)(i), or be an enumerated
offense listed in (B)(ii).
2
The magistrate judge did not address the movant’s 1986 breaking
and entering conviction, nor does the court herein, because the
parties appear to agree that it does not qualify as a violent
felony absent the residual clause of the ACCA.
4
As mentioned above, the magistrate judge found in his
PF&R that movant’s robbery conviction constitutes a violent
felony, but his two felonious assault convictions do not.
As an initial matter, the court adopts the magistrate
judge’s findings and recommendation regarding the robbery
conviction, inasmuch as the magistrate judge thoroughly
discussed and adequately decided the issue and no objection was
raised thereto.
As for the magistrate judge’s findings and
recommendation regarding the felonious assault convictions, the
United States objected thereto, and that portion is reviewed de
novo.
The movant was convicted of Ohio felonious assault in
1986 and 1993.
At the time of both offenses, occurring in 1985
and 1993, felonious assault in Ohio was governed by Ohio Rev.
Code § 2903.11(A), which provided as follows:
No person shall knowingly:
(1) Cause serious physical harm to another;
(2) Cause or attempt to cause physical harm to another
by means of a deadly weapon or dangerous ordnance as
defined in section 2923.11 of the Revised Code.
Because felonious assault is not an enumerated offense set forth
in 18 U.S.C. § 924(e)(2)(B)(ii), the court only analyzes it
under the force clause, (B)(i).
To determine whether a
5
defendant’s prior conviction qualifies as a violent felony,
courts apply a “categorical approach,” where they “focus solely
on the fact of conviction rather than the facts of the case[,]”
and “compare the elements required for conviction of an offense
to the element(s) required for application of the sentence
enhancement, while ignoring the conduct that gave rise to a
particular defendant's past conviction.”
United States v.
Covington, 880 F.3d 129, 132 (4th Cir.), cert. denied, 138 S.
Ct. 2588, 201 L. Ed. 2d 304 (2018) (citing Salmons, 873 F. 3d at
448, Taylor v. United States, 495 U.S. 575, 602 (1990), and
United States v. Wilson, 951 F. 2d 586, 588 (4th Cir. 1991)).
“[T]he categorical approach is straightforward when a statute is
indivisible, that is, when the statute defines only a single
crime with a single set of elements.”
Id. (citing Mathis v.
United States, 136 S. Ct. 2243, 2248 (2016)).
The approach is made more difficult, however, “where a
statute defines multiple crimes by listing multiple alternative
elements,” rendering it “divisible.”
Id.
“Where a statute is
divisible, the Court generally must first apply a ‘modified
categorical approach’ to determine which of the alternative
elements are integral to a defendant's conviction.”
Id.
To
make this determination, courts may look to “a limited class of
documents (for example, the indictment, jury instructions, or
plea agreement and colloquy) to determine what crime, with what
6
elements, a defendant was convicted of.”
2249.
Mathis, 136 S. Ct. at
These documents are referred to as “Shepard documents.”
See Shepard v. United States, 544 U.S. 13 (2005).
“The modified
approach acts as a tool, rather than an exception, to ‘help[ ]
implement the categorical approach when a defendant was
convicted of violating a divisible statute.’”
Id. (quoting
Descamps v. United States, 570 U.S. 254 (2013)) (modification in
original).
At the time this case was pending before the
magistrate judge, the law on this issue was unclear in the Sixth
Circuit, Ohio’s home circuit.
Specifically, at the time of the
PF&R, two matters dealing with Ohio felonious assault and the
ACCA were pending, for each of which the Sixth Circuit had
granted rehearing en banc: Williams v. United States, 875 F.3d
803 (6th Cir. 2017); and United States v. Burris, No. 16-3855,
2017 WL 6368852 (6th Cir. Dec. 13, 2017).
The magistrate judge
noted the uncertainty surrounding the status of Ohio felonious
assault and “ha[d] withheld proposing a ruling herein pending
the en banc decisions of the Sixth Circuit,” but “[n]onetheless
. . . believe[d] that this court should not further withhold a
ruling in this matter.”
PF&R at 13.
The magistrate judge thus
considered the issue pursuant to the law as it stood and found
the Ohio felonious assault statute too broad to qualify as an
ACCA predicate violent felony absent the residual clause.
7
Since
then, however, the Sixth Circuit has cleared some of the
uncertainty surrounding the issue by deciding United States v.
Burris, 912 F. 3d 386 (6th Cir. Jan. 3, 2019).
In Burris, the Sixth Circuit applied the modified
categorical analysis to Ohio felonious assault,3 finding first
that the statute, as a whole, was “too broad to categorically
qualify as [a] violent-felony predicate[] under the ACCA and
Guidelines elements clauses.”
Burris, 912 F.3d at 399.
The court found the statute to be divisible, however,
in that subsection (A)(1) and subsection (A)(2) each set forth
separate crimes.
Id. at 405.
Because the court found the
statute to be too broad under subsection (A)(1), it then
considered whether subsection (A)(2), which makes it a crime to
knowingly cause physical harm “by means of a deadly weapon or
3
The defendant in Burris was convicted of felonious assault
in 2007. The statute at that time and the version
considered by the Sixth Circuit, reads:
(A) No person shall knowingly do either of the
following:
(1) Cause serious physical harm to another or to
another's unborn;
(2) Cause or attempt to cause physical harm to another
or to another's unborn by means of a deadly weapon or
dangerous ordnance.
Ohio Rev. Code § 2903.11. Aside from the addition of “or to
another’s unborn,” which is not pertinent here, the statute is
essentially unchanged from the version under which the movant
was convicted, and the Sixth Circuit’s analysis is applicable.
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dangerous ordnance[,]” qualifies as a violent felony.
Code § 2903.11(A)(2).
Ohio Rev.
The court readily found that it did,
noting that the “deadly weapon rule” disposes of the analysis:
“‘When a felony must be committed with a deadly weapon and
involves some degree or threat of physical force, it is a crime
of violence under the elements clause.’”
Id. (quoting United
States v. Harris, 853 F.3d 318, 321 (6th Cir. 2017).
The court
thus held that “[i]f the defendant was convicted under the
(A)(1) version of [the felonious assault statute], that offense
does not qualify as a violent-felony conviction under the ACCA
or Guidelines elements clauses.
If a defendant was convicted
under the (A)(2) version of [the statute], that offense does
qualify as a violent-felony predicate under the ACCA and
Guidelines elements clauses.”
Id. at 406.
Accordingly, here, if the movant was convicted under
the (A)(2) version of Ohio felonious assault, the offense
qualifies as an ACCA predicate violent felony.
The court
considers the Shepard documents to determine under which
subsection the movant was convicted.
Attached as Exhibits 1 and
2 to the United States’ response to the movant’s motion are the
indictments for the two offenses, each of which track the
language of subsection (A)(2).
Specifically, the 1986
indictment states: “Defendant(s) . . . unlawfully and purposely
did knowingly cause or attempt to cause physical harm to
9
[another] by means of a deadly weapon or dangerous ordnance, towit: a gun, as defined in Section 2923.11 of the Revised Code.”
Government’s Response, ECF # 93, Ex. 1 at 5.
The 1992
indictment, for the 1993 conviction, similarly states:
“Defendant(s) . . . did knowingly cause serious physical harm to
[another] and/or did knowingly cause or attempt to cause
physical harm to [another] by means of a deadly weapon or
dangerous ordnance, to-wit: firearm, as defined in Section
2923.11 of the Revised Code.”
Id., Ex. 2 at 3.
Each exhibit
additionally contains the order sentencing the defendant to the
crimes contained in the corresponding indictments.4
1 at 3, and id. Ex. 2 at 7.
See id. Ex.
In neither his reply to the
government’s response nor his response to the objections to the
PF&R does the movant dispute that he was convicted under
subsection (A)(2).
The court, accordingly, finds that the movant was
convicted under subsection (A)(2) of Ohio felonious assault in
1986 and 1993, and thus committed violent felonies in both
instances.
In conjunction with the robbery conviction, the
movant has committed three ACCA predicate violent felonies.
4
As stated in the sentencing order for the 1986 conviction:
“First count amended to delete gun specification but to leave
the word ‘Gun’ in the body of the indictment.” Id. The removal
of the specification does not affect the above-quoted language,
which is in the body of the indictment.
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The movant, having been convicted of three prior
violent felonies, was an armed career criminal under the ACCA
when he was sentenced in 2007 and is not entitled to any relief
under 28 U.S.C. § 2255.
III. Conclusion
The court, accordingly, ORDERS as follows:
1. That the respondent’s objections to the PF&R be, and they
hereby are, granted;
2. That the magistrate judge’s Proposed Findings and
Recommendation be, and hereby are, adopted and incorporated
in part as set forth herein;
3. That movant’s motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255 be, and hereby is, denied;
and
4. This case be, and hereby is, dismissed from the docket of
the court.
The Clerk is directed to transmit copies of this
memorandum opinion and order to all counsel of record, any
unrepresented parties, and the United States Magistrate Judge.
Enter: April 17, 2019
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