Jones v. United States

• Decision Date: 18 November 2021
• Docket Number: 1:14CR37-1,1:16CV655
• Parties: ROGER WAYNE JONES, III, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Middle District of North Carolina

ROGER WAYNE JONES, III, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Nos. 1:14CR37-1, 1:16CV655

United States District Court, M.D. North Carolina

November 18, 2021

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

L Patrick Auld United States Magistrate Judge

This case comes before the undersigned United States Magistrate Judge for a recommended ruling on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”) (Docket Entry 66), as well as his Motion for Leave to File Supplemental Brief/Pleading (“Supplement Motion”) (Docket Entry 93) and second Motion for Leave to File Supplemental Brief/Pleading (“Second Supplement Motion”) (Docket Entry 95).^[1]For the reasons that follow, the Court should deny the Section 2255 Motion, the Supplement Motion and the Second Supplement Motion.

INTRODUCTION

This Court (per now-retired United States District Judge James A Beaty, Jr.) entered a Judgment against Petitioner imposing, inter alia, a prison term of 204 months upon a jury's guilty verdict on a charge of possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1), after which he admitted prior convictions for three violent felonies committed on different occasions within the meaning of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). (Docket Entry 33; see also Docket Entry 1 (Indictment); Docket Entry 24 (Verdict Sheet); Docket Entry 29 (Presentence Report (“PSR”)); Docket Entries 42-44 (Trial Tr.); Docket Entry 45 (Sent'g Hrg. Tr.); Docket Entry 72 (Statement of Reasons).)^[2]

Following Petitioner's filing of Notice of Appeal (Docket Entry 34), the United States Court of Appeals for the Fourth Circuit upheld his conviction and sentence, see United States v. Jones, 611 Fed.Appx. 116 (4th Cir. 2015);^[3] see also United States v. Jones, 628 Fed.Appx. 189 (2016) (affirming Order (Docket Entry 59), wherein Judge Beaty denied Petitioner's Motion for New Trial (Docket Entry 47) and Motion for Correction of PSR (Docket Entry 49)).^[4] Petitioner thereafter timely filed the Section 2255 Motion, asserting the following grounds for relief:

1) “Suprem[e] Court Ruling [o]n the Vagueness of Residual Clause [of ACCA's Violent Felony Definition] in [] Johnson[ v. United States], (2015)” (Docket Entry 66, ¶ 12(Ground One) (underscoring added); see also Docket Entry 67 at 26 (elaborating on Ground One); Docket Entry 69 at 1-10 (further elaborating on Ground One and citing Welch v. United States, 578 U.S. 120 (2016) (making Johnson retroactively applicable to cases on collateral review), and Mathis v. United States, U.S., 136 S.Ct. 2243 (2016) (applying categorical approach to determine whether state burglary conviction qualifies as burglary under enumerated offenses clause of ACCA's violent felony definition)));

2) “No Reasonable Suspicion to [S]top and Detain, No [P]robable Cause to [S]earch [T]ruck” (Docket Entry 66, ¶ 12(Ground Two); see also Docket Entry 67 at 7-12 (elaborating on Ground Two)); and

3) “No Shepard Documents [W]ere [P]resented at [S]entencing” (Docket Entry 66, ¶ 12(Ground Three) (adverting to Shepard v. United States, 544 U.S. 13 (2005) (holding that categorical approach to determination of whether state burglary conviction qualifies as burglary under enumerated offenses clause of ACCA's violent felony definition does not allow review of police report)); see also Docket Entry 67 at 12-14 (elaborating on Ground Three)).

“[P]ursuant to the General Order Governing Claims Related to Johnson . . ., the Office of the Federal Public Defender [wa]s appointed to represent [Petitioner].” (Text Order dated July 27, 2016 (underscoring added).) The United States then responded to the Section 2255 Motion (Docket Entry 73), whereupon Petitioner's counsel filed a Notice that No Reply Will Be Filed by Counsel (Docket Entry 75; see also id. at 1 (“Counsel made this determination only after a conscientious review of the matter, including all relevant pleadings, Petitioner's prior criminal record, and the applicable law.”). Petitioner, however, filed a pro se Reply (Docket Entry 77), and a “certified letter in lieu of a more formal final reply pursuant to Rule 5(d) of the Rule[s Governing Section] 2255 Proceedings” (Docket Entry 78 at 1), as well as a document the Clerk docketed as a “Motion to Amend” (Docket Entry 79) and a Second Amended Petition (Docket Entry 82). The Court (per United States District Judge William L. Osteen, Jr.) denied the Motion to Amend “as futile” (Docket Entry 92 at 2) and “treated [the Second Amended Petition] as a second motion for leave to amend [the] Section 2255 Motion and [denied it] as futile” (id.). Petitioner thereafter filed the Supplement Motion, seeking to “have his sentence vacated based on the new Supreme [C]ourt ruling in Rehaif v[]. United States[, 588 U.S., ]139 S.[ Ct.] 914[ (2019)]” (Docket Entry 93 at 3 (underscoring added)), and the Second Supplement Motion, which likewise “[r]equest[s] to have [his s]entence vacated . . . in light of the [n]ew Supreme Court [r]uling in Rehaif” (Docket Entry 95 at 3 (underscoring added)).^[5]

DISCUSSION

Section 2255 Motion

Ground One

Ground One of the Section 2255 Motion seeks relief based on the Supreme Court's ruling in Johnson declaring unconstitutionally vague the residual clause of the ACCA's definition of violent felony. (See Docket Entry 66, ¶ 12(Ground One); Docket Entry 67 at 2-6.) The United States correctly has countered that - regardless of its retroactive effect as recognized in Welch - Johnson “is not a legitimate basis for granting relief because [Petitioner's] ACCA predicate convictions do not fall under the residual clause.... [His] three predicate convictions are for first- and second-degree burglary. Both crimes qualify as violent felonies under the ACCA's enumerated offenses clause.” (Docket Entry 73 at 4.)

Indeed, the Fourth Circuit has deemed it beyond “dispute that [a] conviction for North Carolina second-degree burglary qualifies as a violent felony under the ACCA's enumerated crimes clause.” United States v. Dinkins, 928 F.3d 349, 355 n.4 (4th Cir. 2019); see also United States v. Williams, 705 Fed.Appx. 160, 161 (4th Cir. 2017) (holding that “North Carolina convictions for first degree burglary” remained proper ACCA predicates after Johnson and citing United States v. Mack, 855 F.3d 581, 586 (4th Cir. 2017) (ruling that North Carolina first degree burglary satisfies generic definition of burglary under Guidelines)); N.C. Gen. Stat. § 14-51 (establishing “two degrees in the crime of burglary as defined at the common law” and making occupancy of dwelling at time of offense the differentiating element). Moreover, Petitioner's expansion of Ground One to invoke Mathis (see Docket Entry 69 at 3-8) does not alter that assessment, as the Fourth Circuit recently “conclude[d] that Mathis and [United States v.] Stitt[, U.S., 139 S.Ct. 399 (2018), ] do not overrule [its] prior holding in [United States v.] Mungro[, 754 F.3d 267 (4th Cir. 2014), ] that a conviction under N.C. Gen. Stat. § 14-54(a)[, which provides a lesser-included offense to second degree burglary, i.e., breaking and entering, ] qualifies as an ACCA predicate conviction under [the enumerated offenses clause], ” United States v. Dodge, 963 F.3d 379, 385 (4^th Cir. 2020), cert. denied, U.S., 141 S.Ct. 1445 (2021); see also United States v. Bacote, 189 Fed.Appx. 191, 193-95 (4th Cir. 2006) (describing interrelationship between breaking and entering and second degree burglary under North Carolina law). Accordingly, Ground One fails as a matter of law.

Grounds Two and Three

Although the Section 2255 Motion does not couch Grounds Two and Three as ineffective assistance of counsel claims (see Docket Entry 66, ¶ 12(Ground One) & (Ground Two) (lacking any mention of attorney ineffectiveness)) Petitioner's contemporaneously filed memorandum clearly approaches Ground Two from that perspective (see Docket Entry 67 at 11 (“[I]t is proper to bring [Ground Two] in [the Section] 2255 [M]otion. The Supreme Court has found that an attorney's failure to bring a motion to suppress evidence may be a 6^th Amendment violation of the defendants [sic] right to effective assistance of counsel.”); see also id. (developing suppression-based, ineffective assistance claim)) and (more cryptically) links Ground Three to purported ineffectiveness by counsel (see id. At 14 (“For all the foregoing reasons [showing alleged non-compliance by the Court with Shepard, Petitioner's] sentence is unconstitutional .... Further, because of his lawyers [sic] incompetence in this area, his sentence should be vacated.”)). To prevail on such claims, Petitioner must show that his counsel's performance fell below a reasonable standard for defense attorneys and that prejudice resulted. See Strickland v. Washington, 466 U.S. 668, 687-94 (1984). “Surmounting Strickland's high bar is never an easy task.... [T]he standard for judging counsel's representation is a most deferential one.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (internal quotation marks omitted); see also Strickland, 466 U.S. at 694 (defining prejudice as “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different”). Petitioner has not made the required showing as to Grounds Two or Three.

As to Ground Two, Petitioner's counsel has averred that he thoroughly considered and researched a possible suppression-based defense, but determined “a suppression motion would fail” (Docket Entry 73-4 at 2; see also id. at 3 (verifying contents of affidavit after “first being duly sworn”)). “‘[The] decision whether to file a pre-trial motion to suppress is a classic tactical decision.'” Lowe v....