United States v. Rudolph

• Citation: 570 F.Supp.3d 1277
• Decision Date: 08 November 2021
• Docket Number: CRIMINAL ACTION NO. 1:00-CR-0805-CAP
• Parties: UNITED STATES of America, v. Eric Robert RUDOLPH, Defendant.
• Court: U.S. District Court — Northern District of Georgia

570 F.Supp.3d 1277

UNITED STATES of America,
v.
Eric Robert RUDOLPH, Defendant.

CRIMINAL ACTION NO. 1:00-CR-0805-CAP

United States District Court, N.D. Georgia, Atlanta Division.

Signed November 8, 2021

570 F.Supp.3d 1280

David E. Nahmias, Supreme Court of Georgia, Dunwoody, GA, F. Gentry Shelnutt, Jr., Sally Quillian Yates, Yonette Sam-Buchanan, Gabriel Adam Mendel, Office of United States Attorney, Northern District of Georgia, Atlanta, GA, for United States of America.

ORDER

CHARLES A. PANNELL, JR., United States District Judge

570 F.Supp.3d 1281

Eric Robert Rudolph was indicted on November 15, 2000, on charges related to the bombing at Centennial Olympic Park in Atlanta, Georgia during the 1996 Summer Olympics.¹ Alice Hawthorne died from injuries sustained during the bombing, and over one hundred other individuals were injured. Rudolph was also indicted on charges related to bombings at three other locations: Northside Family Planning Services located in the Sandy Springs Professional Building in Sandy Springs, Georgia on January 16, 1997, The Otherside Lounge in Atlanta, Georgia on February 21, 1997, and the New Woman All Women Health Care Clinic in Birmingham, Alabama on January 29, 1998. No deaths resulted from the bombings at Northside Family Planning Services and The Otherside Lounge,² however, several individuals were injured at each location. Birmingham police officer Robert Sanderson was killed during the bombing at the New Woman All Women Health Care Clinic in Birmingham, AL. Emily Lyons, a nurse, was seriously injured.

Rudolph pled guilty on April 13, 2005, to eight counts of the twenty-one-count indictment. This was a binding plea with an appeal waiver. On the same day, he pled guilty in the Northern District of Alabama to a two-count indictment for the bombing at the New Woman All Women Health Care Clinic in Birmingham, AL, and for using an explosive device in that bombing.³ That was also a binding plea with an appeal waiver.

The court in the Northern District of Alabama sentenced Rudolph on July 18, 2005, to two life sentences, to be served consecutively to each other. On August 22, 2005, this court sentenced Rudolph to four life sentences, to run consecutively to each other, along with an additional 120 years of imprisonment, to run consecutively to the life sentences. The sentence that Rudolph received in this district is broken down by count as follows:

570 F.Supp.3d 1282

Title & Section	Nature of the Offense	Count No.	Sentence
18 U.S.C. § 844(i)	Malicious Damage of Property with an Explosive Device Resulting in Death and/or Personal Injury	1	Life
(the Centennial Olympic Park Bombing, one death resulted)
18 U.S.C. § 924(c)	Use of a Destructive Device During and in Relation to a Crime of Violence (i.e ., the charge in Count 1, the Centennial Olympic Park Bombing)	2	Life, consecutive
18 U.S.C. § 844(i)	Malicious Damage of Property with an Explosive Device	5	20 Years, consecutive
(the first bombing at the Sandy Springs Professional Building that contained the offices of Northside Family Planning Services)
18 U.S.C. § 924(c)	Use of a Destructive Device During and in Relation to a Crime of Violence (i.e. , the charge in Count 5, the first bombing at the Sandy Springs Professional Building that contained the offices of Northside Family Planning Services)	6	Life, consecutive
18 U.S.C. § 844(i)	Malicious Damage of Property with an Explosive Device Resulting in Death and/or Personal Injury	7	40 Years, Consecutive
(the second bombing at the Sandy Springs Professional Building that contained the offices of Northside Family Planning Services – no death resulted, only injury)
18 U.S.C. § 844(i)	Malicious Damage of Property with an Explosive Device Resulting in Death and/or Personal Injury	10	40 Years, Consecutive
(the first Otherside Lounge bombing – no death resulted, only injury)
18 U.S.C. § 924(c)	Use of a Destructive Device During and in Relation to a Crime of Violence (i.e. , the charge in Count 10, the first bombing at the Otherside Lounge)	11	Life, consecutive
18 U.S.C. § 844(i)	Malicious Damage of Property with an Explosive Device	12	20 Years, consecutive
(the second bombing at the Otherside Lounge)

570 F.Supp.3d 1283

Rudolph is currently serving this sentence at USP Florence ADMAX, a supermax facility.⁴

I. Rudolph files a motion pursuant to U.S.C. § 2255 to vacate, set aside, or correct his sentence

On June 26, 2020, Rudolph filed a pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Doc. No. 30]. This motion is based on the Supreme Court's decision in United States v. Davis , ––– U.S. ––––, 139 S.Ct. 2319, 204 L.Ed.2d 757 (2019), that the residual clause in 18 U.S.C. § 924(c) is void for vagueness.⁵ Pursuant to an Administrative Order from the Chief Judge of this district concerning retroactive application of Davis [Doc. No. 32], the Federal Defender Program reviewed Rudolph's case and filed an amended

570 F.Supp.3d 1284

§ 2255 motion on his behalf. Specifically, the amended § 2255 motion seeks to vacate the convictions and sentences on the § 924(c) charges in light of the Supreme Court's holding in Davis that the definition of the term "crime of violence" contained in 18 U.S.C. § 924(c)(3)(B)⁶ is unconstitutionally vague. [Doc. No. 36]. The government has filed a response in opposition [Doc. No. 37], and Rudolph has filed a reply brief [Doc. No. 38]. The motion is now before the court for consideration.

A. The Supreme Court's ruling in Davis

Under 18 U.S.C. § 924(c), there is a heightened penalty for anyone adjudicated guilty of using, carrying, or possessing a firearm, or explosive device, in "relation to any crime of violence or drug trafficking crime." The term "crime of violence" is then further defined in two subparts of the statute. Section 924(c)(3)(A) is known as the elements clause and defines "crime of violence" as "an offense that is a felony and has as an element the use, attempted use, or threatened use of physical force against the person or property of another." Section 924(c)(3)(B), also known as the residual clause, defined "crime of violence" as "an offense that is a felony and 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 an offense." It is this residual clause that the Supreme Court struck down on June 24, 2019, as being unconstitutionally vague because it "provides no reliable way to determine which offenses qualify as crimes of violence." Davis , 139 S. Ct. at 2324 (2019). The Eleventh Circuit ruled in In re Hammoud , 931 F.3d 1032, 1039 (11th Cir. 2019), that Davis is "retroactively applicable to criminal cases that became final before Davis was announced." Rudolph's pro se § 2255 motion is timely, having been filed within one year of the ruling in Davis.⁷

B. Rudolph's argument

Rudolph pled guilty to five counts of violating 18 U.S.C. § 844(i), known as malicious destruction of property with an explosive device, or more commonly, arson. This crime is defined in § 844(i) as follows:

Whoever maliciously damages or destroys, or attempts to damage or destroy, by means of fire or an explosive, any building, vehicle, or other real or personal property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce shall be imprisoned.

Arson is the predicate crime for Rudolph's 18 U.S.C. § 924(c) charges. Rudolph presents several arguments that the offense defined in § 844(i) does not fit within § 924(c) ’s elements clause. Rudolph's argument boils down to the following: that the arson crime charged in § 844(i) can no longer be considered a crime of violence for purposes of § 924(c) following the Davis ruling.

Rudolph seeks to have the life sentences on the three § 924(c) charges vacated (Counts 2, 6, and 11). He then wants the court to "unbundle the sentencing package of the original judgment and revisit the prison terms on the remaining counts."

570 F.Supp.3d 1285

[Doc. No. 36 at 20]. He cites to United States v. Fowler , 749 F.3d 1010 (11th Cir. 2014) for the proposition that the court can redesign the sentencing package. The government responds that this sentencing package doctrine is discretionary and does not apply here, because the sentences imposed on each count were not part of any package created by the court but were instead required by the binding plea.⁸ [Doc. No. 37 at 17].

II. Is Rudolph's § 2255 motion procedurally barred?

"A federal criminal defendant who fails to preserve a claim by objecting at trial or raising it on direct appeal is procedurally barred from raising the claim in a § 2255 motion, absent a showing of cause and prejudice or a fundamental miscarriage of justice." Rivers v. United States , 476 F. App'x 848, 849 (11th Cir. 2012) (citing Jones v. United States , 153 F.3d 1305, 1307 (11th Cir. 1998) ). "The procedural-default rule is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments." Massaro v. United States , 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).

Here, Rudolph did not raise a vagueness claim concerning his § 924(c) charges at any time prior to filing his § 2255 motion. The government maintains that Rudolph has procedurally defaulted his Davis claims. [Doc. No. 44]. Rudolph contends, however, that "the government waived the opportunity to raise the procedural-default defense, so this Court is forbidden to rely on it now." [Doc. No. 45 at 1].

A. Procedural history

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that "[t]he judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." This rule does not discuss concrete...