Folse v. United States

Decision Date16 March 2023
Docket NumberCiv. 22-cv-588-JB/JFR,CR. 15-cr-2485 JB
PartiesKEVIN FOLSE, Petitioner v. UNITED STATES OF AMERICA, Respondent.
CourtU.S. District Court — District of New Mexico


JOHN F. ROBBENHAAR U.S. Magistrate Judge

This matter is before the Court on Petitioner Kevin Folse's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody filed on September 15, 2022. CV Doc. 4.[1] United States District Judge James O. Browning referred this case to me to perform legal analysis and recommend an ultimate disposition of the case. CV Doc. 2. Petitioner presents four separate claims, and seeks to vacate and/or reduce his sentence.[2]The United States has responded. CV Doc 13.

After reviewing the motion and response, as well as the files and records of the case, I can hold an evidentiary hearing to “determine the issues and make findings of fact...” if I have any question as to whether the prisoner is entitled to relief. 28 U.S.C. § 2255(b) (“Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief..”). After reviewing the record in this case, I have determined that an evidentiary hearing is not warranted, as the Motion, files and records in this matter conclusively show that Petitioner is not entitled to relief. I am comfortable ruling without taking additional testimony or evidence.

As discussed below, I recommend that the Court DENY Petitioner's Motion. Furthermore, I recommend that the Court DENY a certificate of appealability and enter judgment accordingly.


On July 14, 2015, a grand jury indicted Petitioner Kevin Folse for the following crimes: Count 1: felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2); Count 2: carjacking a silver Saturn, in violation of 18 U.S.C. § 2119; and Count 3: using, carrying, and brandishing a firearm in relation to and in furtherance of a crime of violence, i.e., carjacking the Saturn, in violation of 18 U.S.C. § 924(c). See CR Doc. 10, Indictment, at 1-2. On September 9, 2015, a grand jury returned a Superseding Indictment which preserved the original Indictment's three counts and added two new counts: Count 4: carjacking a 2008 Kia Sorrento, in violation of 18 U.S.C. § 2119, and Count 5: using, carrying, and brandishing a firearm in relation to and in furtherance of a crime of violence, i.e., carjacking the Kia Sorrento, in violation of 18 U.S.C. § 924(c). See CR Doc. 31, Superseding Indictment, at 3. The United States later dismissed Count 5, because it obtained evidence that Petitioner did not use a firearm in the second alleged carjacking. See CR Doc. 83, United States' Unopposed Motion to Dismiss Count Five of the Superseding Indictment. On October 8, 2015, following a three-day trial, a jury convicted Petitioner on all four remaining counts. See CR Doc. 105, Verdict, at 1.

Petitioner appealed his convictions to the Tenth Circuit Court of Appeals. In his direct appeal, Petitioner argued that (1) there was insufficient evidence to support his conviction for possession of a firearm, (2) the Court's jury instructions omitted the required element that Petitioner knew that he was a felon at the time he possessed the firearm, (3) the jury instruction failed to properly define mens rea to constructively possess a firearm, (4) insufficient evidence was introduced to support the carjacking conviction, and (5) his prior convictions for aggravated battery and possession with intent to distribute marijuana did not qualify as predicate convictions to enhance his sentence. The Tenth Circuit denied these arguments and affirmed Petitioner's convictions and judgment and sentence. United States v. Folse, 854 Fed.App'x 276 (2021).

Petitioner timely filed the instant § 2255 motion in which he claims (1) United States v. Taylor, 142 S.Ct. 2015 (2022), supports his request for a sentence reduction; (2) jury instructions given by the trial judge were deficient; (3) trial counsel was ineffective for not permitting him to testify; (4) carjacking is no longer a crime of violence. Petitioner also claims that he is entitled to resentencing. See CV Doc. 9. By separate motion, Petitioner seeks a dismissal of a state charge. CV Doc. 10.


Petitioner appears before the Court pro se. When reviewing the record in this case, including Petitioner's Motion and the United States' response as well as all the relevant documents in the underlying criminal case, I am mindful that I must liberally construe a pro se litigant's pleadings and hold them to a less stringent standard than pleadings drafted by an attorney. Hall v. Bellman, 935 F.2d 1106 (10th Cir. 1991) (citations omitted); see United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002) (applying liberal construction to pro se prisoner's appeal of § 2255 petition); see also Toevs v. Reid, 685 F.3d 903, 911 (10th Cir. 2012) (noting the waiver rule, under which [a]rguments not clearly made in a party's opening brief are deemed waived,” applies even to pro se litigants who “are entitled to liberal construction of their filings”). I have applied that less stringent standard here.

Claim 1: Whether Petitioner's Sentence Violates United States v. Taylor

Petitioner first submits that the Supreme Court's recent opinion in United States v. Taylor[3] entitles him to a sentence reduction. The Court discerns Petitioner's argument to be that the Supreme Court in Taylor struck down sentencing enhancements imposed pursuant to 18 U.S.C. § 924(c). Petitioner offers little analysis, but claims in conclusory fashion that [t]he Supreme Court decided he [Taylor] did not deserve the 924(c) enhancement, and I also do not deserve the 924(c) enhancement...” CV Doc. 4 at 23. Petitioner states that the Supreme Court “made a decision that a violent crime does not also give way for an enhancement [pursuant to section] 924(c) to add 10 years to the time already given for a ‘crime of violence' Id. at 61. Petitioner argues that [t]he Supreme Court said it's ok to sentence Taylor to 240 months but ‘not ok' to add the additional 10 years/120 months for a ‘crime of violence'. Id. at 61.

For its part, Respondent submits that Taylor does not provide relief for Petitioner. Respondent notes that Taylor stands for the proposition that, because an attempt crime does not require the prosecution to prove, beyond a reasonable doubt, the use, attempted use or threatened use of force, an attempt crime (as opposed to a completed crime) therefore cannot be used as a predicate crime of violence under section 924(c). CV Doc. 13 at 6. But here, because Petitioner was convicted of a completed offense (i.e. carjacking), Respondent argues that Taylor is inapplicable and a § 924(c) enhancement is otherwise appropriate. Id.

The Court's review of Taylor confirms that Petitioner's argument is misplaced and Taylor does not stand for the broad proposition that Petitioner would like. The defendant in Taylor was charged with both a Hobbs Act robbery and a violation of 18 U.S.C. § 924(c), based on the fact that the defendant's accomplice shot a man during the course of the robbery. The defendant faced a maximum of 20 years on the Hobbs Act robbery, and an additional 10 years on the section 924(c) charge. After pleading guilty to the Hobbs Act charge as well as the § 924(c) charge, the defendant was sentenced to 30 years imprisonment. 142 S.Ct. at 2018-19.

In federal habeas proceedings, the defendant in Taylor argued that he could not receive the 10 year sentence for the § 924(c) charge, since his guilty plea to the Hobbs Act charge was based on his admission that he attempted to commit, and conspired to commit, Hobbs Act robbery. Id. at 2019-20. The defendant argued that neither of these offenses qualify as a “crime of violence” after United States v. Davis,[4] which invalidated the residual clause of § 924(c). Id. The Supreme Court concluded that, by attempting to commit Hobbs Act robbery, the defendant was not required to have used, attempted to use, or threatened to use physical force against another person or his property. “Simply put, no element of attempted Hobbs Act robbery requires proof that the defendant used, attempted to use, or threatened to use force.” Id. at 2021. Accordingly, the Court found that Mr. Taylor could be sentenced to a maximum of 20 years for his conviction of attempted Hobbs Act robbery, but that the 10 year sentencing enhancement based on § 924(c) was unauthorized and improper. Id.

Here Petitioner stands convicted of two counts of carjacking, one of which has an associated § 924(c) charge based on Petitioner's using, carrying and brandishing a firearm in relation to and in furtherance of the underlying carjacking. See CR Doc. 31. Unlike the attempted crime that was the focus of the Supreme Court's attention in Taylor, in the present case Petitioner stands convicted of a completed carjacking. As argued by Respondent, this makes a world of difference. It means that the § 924(c) sentencing enhancement in Petitioner's case was necessarily based on § 924(c)'s elements clause that applies to offenses that “ha[ve] 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); see CV Doc. 13 at 6 (“Since [Petitioner] was indicted and convicted of completed offenses, Taylor is inapplicable.”). The necessary corollary to Respondent's argument is that the residual clause of § 924(c), which was found unconstitutionally vague in U.S. v. Davis,[5] was not at play in Petition...

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