United States District Court, E.D. Virginia, Norfolk Division
TARUS D. OWENS, Petitioner,
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:97cr 150
MEMORANDUM FINAL ORDER
REBECCA BEACH SMITH CHIEF JUDGE
matter comes before the court on the Petitioner's
pro se Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence ("Motion"), filed on
July 26, 2016. ECF No. 87.The Motion was filed at the direction of
the Court of Appeals for the Fourth Circuit, on the same day
that the Fourth Circuit granted the Petitioner authorization
to file a successive § 2255 motion in this court. ECF
No. 86. For the reasons below, the Motion is DISMISSED as to
Ground Two, and DENIED as to Ground One.
February 4, 1998, after a three-day jury trial, a jury found
the Petitioner guilty of Counts One, Three, Four, Five,
Seven, and Eight of the Indictment. Count One charged the
Petitioner with Assault With Intent to Commit Murder, in
violation of 18 U.S.C. §§ 7(3) and 113(a); Count
Three charged him with Robbery, in violation of 18 U.S.C.
§ 2111; Counts Four and Five charged him with Use of a
Firearm in a Crime of Violence, in violation of 18 U.S.C.
§ 924(c)(1); Count Seven charged him with Possession of
Ammunition by a Fugitive, in violation of 18 U.S.C. §
922(g)(2); and Count Eight charged him with Attempted Capital
Murder, in violation of 18 U.S.C. §§ 7 and 13. On
May 5, 1998, the court sentenced the Petitioner to a total
term of life plus three hundred (300) months imprisonment.
ECF No. 34. The Petitioner appealed, and on February 25,
1999, the Fourth Circuit affirmed the judgment. ECF No. 50.
February 25, 2000, the Petitioner filed a motion under 28
U.S.C. § 2255, ECF No. 62, which the court denied in the
Memorandum Opinion and Final Order of May 24, 2000. ECF No.
66. On May 25, 2000, the Petitioner requested leave to file
an addendum § 2255 motion, ECF No. 67, and on June 7,
2000, the court granted such leave, but denied the addendum
§ 2255 motion. ECF No. 68. The Petitioner then filed a
motion under Federal Rule of Civil Procedure 59(e), ECF No.
69, which the court dismissed on June 27, 2000. ECF No. 70.
The Petitioner appealed, and on January 29, 2001, the Fourth
Circuit denied a certificate of appealability and dismissed
the appeal. ECF No. 72. On September 2, 2015, the Petitioner
filed a motion in the Fourth Circuit, under 28 U.S.C. §
2244, seeking authorization to file a successive § 2255
motion in this court, and the Fourth Circuit denied such
authorization on September 21, 2015. ECF No. 83.
26, 2016, the Fourth Circuit granted authorization for the
Petitioner to file a successive § 2255 motion based on
Johnson v. United States, 135 S.Ct. 2551 (2015),
thus permitting consideration of the instant Motion by this
court. ECF No. 86.
The Petitioner's Unauthorized Ground for Relief
preliminary matter, while the Petitioner's Motion raises
two grounds for relief, Ground Two does not present a claim
based on Johnson, and therefore falls beyond the
scope of the Fourth Circuit's authorization.
Specifically, Ground Two argues that the Petitioner "is
serving an illegal sentence where a vague application of the
Assimilat[ive] Crimes Act was applied to his conduct."
Mot. at 5. For timeliness, the Petitioner invokes "a new
rule of constitutional law announced by the Supreme Court
which abolished the vague application of Federal statutes
without taking into consideration . . . the defendant[']s
conduct on [a] particular occasion." Id.
However, while Johnson did apply the constitutional
void-for-vagueness doctrine in its ruling, see
Johnson, 135 S.Ct. at 2556-57, the ruling did not create
the doctrine itself, which has existed for many years.
See, e.g., Connally v. Gen. Constr. Co.,
269 U.S. 385 (1926). Therefore, Ground Two falls beyond the
scope of the Fourth Circuit's authorization based on
Johnson, and because this court does not have
jurisdiction to consider such unauthorized claims,
see 28 U.S.C. §§ 2244(b)(4), 2255(h),
Ground Two is DISMISSED.
The Petitioner's Authorized Ground for Relief
One of the Motion, which is authorized, challenges the
Petitioner's convictions on Counts Four and Five, for Use
of a Firearm in a Crime of Violence, in violation of 18
U.S.C. § 924(c)(1). Mot. at 4-5. The Petitioner's
underlying crime of violence for Count Four was Robbery, in
violation of 18 U.S.C. § 2111, and his underlying crime
of violence for Count Five was Assault with Intent to Commit
Murder, in violation of 18 U.S.C. § 113(a). Indictment
at 5-6, ECF No. 10. "Crime of violence, " for the
purposes of § 924(c)(1), is an offense that is a felony
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(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)(3). Subsection (A) is the force
clause, and subsection (B) is the residual clause. The
Petitioner argues that both Robbery and Assault with Intent
to Commit Murder count as crimes of violence only under the
residual clause, § 924(c)(3)(B). He asserts that
Johnson invalidates the residual clause, ...