Horne v. United States
| Decision Date | 26 February 2020 |
| Docket Number | No. 9:91-cv-0063-DCN,9:91-cv-0063-DCN |
| Parties | CURTIS DEAN HORNE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of South Carolina |
This matter is before the court on petitioner Curtis Dean Horne's ("Horne") motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255, ECF No. 4, and the United States of America's ("the government") motion to dismiss, ECF No. 11. For the reasons set forth below, the court denies Horne's motion to vacate and grants the government's motion to dismiss.
On May 15, 1991, a jury found Horne guilty of five counts for (1) bank robbery in violation of 18 U.S.C. §§ 2113(a) and 2113(d); (2) carrying a firearm in relation to a crime of violence in violation of 18 U.S.C. § 924(c); (3) possession of a firearm by a person having been convicted of a felony in violation of 18 U.S.C. §§ 922(g) and 924(e); (4) transporting a stolen firearm in interstate commerce in violation of 18 U.S.C. §§ 922(i) and 924(a)(2); and (5) transporting a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312.
At the time of his conviction, Horne had several previous convictions: two federal bank robbery convictions under 18 U.S.C. §§ 2113(a) and 2113(d) from Michigan and Florida and two Florida bank robbery convictions under Fla. Stat. Ann. § 812.13. Horne's previous convictions served as the predicate offenses for his conviction under § 924(e), the Armed Career Criminal Act (the "ACCA"). Pursuant to the United States Sentencing Guidelines ("U.S.S.G." or "the Sentencing Guidelines"), a defendant who is convicted under the ACCA is subject to an offense level of 34, if the defendant used a firearm in connection with a crime of violence, and a criminal history category of IV. U.S.S.G. §§ 14B.4(a)(3)(A), (c)(3). Therefore, with respect to Counts 1, 3, 4, and 5, Horne's Presentence Report ("PSR") recommended a guideline range of 262 to 327 months based on his offense level of 34 and criminal history category of VI. Further, Horne's conviction under Count 2 for a violation of § 924(c) carried a mandatory consecutive sentence of 240 months because it was Horne's second and subsequent § 924(c) offense. Therefore, the court sentenced Horne to 262 months on Counts 1, 3, 4, and 5 and 240 months on Count 2, resulting in a 502-month prison term.
On July 22, 2016, Horne filed his § 2255 motion. ECF No. 7. In response to the motion, the government filed a motion to dismiss on October 19, 2016. ECF No. 11. Horne responded to the motion to dismiss on December 6, 2016. ECF No. 14. The government did not file a reply, and the time to do so has now passed. Thus, this matter is now ripe for the court's review.
Federal district courts are charged with liberally construing petitions filed by pro se litigants to allow the development of a potentially meritorious case. See Hughes v. Rowe, 449 U.S. 5, 9-10 (1980). Pro se petitions are therefore held to a less stringent standard than those drafted by attorneys. See Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978). Liberal construction, however, does not mean that a court may ignore a clearfailure in the pleading to allege facts that set forth a cognizable claim. See Weller v. Dep't of Soc. Servs., 901 F.3d 387, 390-91 (4th Cir. 1990).
Pursuant to 28 U.S.C. § 2255(a):
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
The petitioner must prove the grounds for collateral attack by a preponderance of the evidence.1 See King v. United States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
In his petition, Horne argues that he can no longer be classified as an armed career criminal under the ACCA in light of the Supreme Court's invalidation of the ACCA's residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015). Horne contends that that his previous convictions no longer qualify as predicate offenses under the ACCA. In its motion to dismiss, the government argues that Horne is still properly classified as an armed career criminal because Horne's two federal robbery convictions and two state robbery convictions qualify as violent felonies under the ACCA's force clause. In response, Horne maintains his position that Johnson invalidates his classification as an armed career criminal.
Horne was found guilty of being a felon in possession of a firearm under 18 U.S.C. § 922(g). Section 924(e) provides that any person who violates § 922(g) and has three previous convictions for a violent felony, a serious drug offense, or both shall be imprisoned for no less than fifteen years. The statute defines "violent felony" as a crime punishable by imprisonment for more than a year that:
18 U.S.C. § 924(e)(2)(B) (emphasis added). The underlined portion of the definition is residual clause, which the Supreme Court invalidated an unconstitutionally vague in Johnson. The definitions that remain intact after Johnson are subsection (i), known as the force clause, and the first part of subsection (ii), known as the enumerated offense clause. Therefore, in order for Horne's armed career criminal designation to stand, he must have three previous convictions of (1) a violent felony that falls within the force clause or the enumerated offense clause and/or (2) a serious drug offense.
United States v. McNeal, 818 F.3d 141, 153 (4th Cir. 2016). Therefore, Horne's federal convictions qualify as "violent felonies" under the force clause and properly support his designation as an armed career criminal.
Likewise, Horne's Florida bank robbery convictions also fall under the force clause of the ACCA. Considering a defendant's previous robbery conviction under Fla. Stat. Ann. § 812.13, the Supreme Court recently held that "[b]ecause the term 'physical force' in ACCA encompasses the degree of force necessary to commit common-law robbery, and because Florida robbery requires that same degree of 'force,' Florida robbery qualifies as an ACCA-predicate offense under the [force] clause." Stokeling v. United States, 139 S. Ct. 544, 555 (2019). Therefore, Horne's Florida robbery convictions fall under the ACCA's force clause and also properly support his status as an armed career criminal.3 As such, four of Horne's previous convictions qualify as "violent felonies" under the force clause of § 924(e) and properly serve as predicateoffenses for Horne's designation as an armed career criminal. Accordingly, Horne's designation and his sentence remain valid after Johnson.4
Rule 11(a) of the Rules Governing Section 2255 Proceedings provides that the district court "must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). An applicant satisfies this standard by establishing that reasonable jurists would find that the district court's assessment of the constitutional claims is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). Here, Horne does not meet this standard because there is nothing debatable about the court's resolution of his § 2255 petition.
For the foregoing reasons, the court DENIES Horne's motion and GRANTS the government's motion to dismiss. A certificate of appealability is DENIED.
AND IT IS SO ORDERED.
/s/_________
DAVID C. NORTON
February 26, 2020
1. In deciding a § 2255 petition, the court shall grant a hearing, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). The court has reviewed the record in this case and has determined that a hearing is not necessary.
2. Although the Fourth Circuit in McNeal considered whether bank robbery under § 2113(a) fell under the force clause for the purposes of § 924(c), its analysis applies with equal force to the force clause of the ACCA, as the two clauses contain identical language.
3. Horne was convicted under an earlier version of § 812.13. which defined robbery as "the taking of money or other property which may be the subject of...
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