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Owens v. United States

United States District Court, E.D. Virginia, Norfolk Division

September 1, 2016

TARUS D. OWENS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 2:97cr 150

          MEMORANDUM FINAL ORDER

          REBECCA BEACH SMITH CHIEF JUDGE

         This 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.[1]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.

         I. PROCEDURAL HISTORY

         On 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.

         On 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.

         On July 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.[2]

         II. DISCUSSION

         A. The Petitioner's Unauthorized Ground for Relief

         As a 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.

         B. The Petitioner's Authorized Ground for Relief

         Ground 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 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)(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, ...


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