United States District Court, E.D. Tennessee, Knoxville
FARRIS J. DOBBINS, Petitioner,
UNITED STATES OF AMERICA, Respondent.
W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE
the Court is Petitioner's pro se motion to vacate, set
aside, or correct his sentence pursuant to 28 U.S.C. §
2255 [Doc. 24]. He bases his request for collateral relief on
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), was unconstitutionally vague [Id.].
The United States responded in opposition on July 21, 2016
[Doc. 25]. Petitioner obtained an extension of time [Docs.
26, 27] and filed a reply on August 25, 2016 [Doc. 28]. For
the reasons below, Petitioner's request for leave to
“traverse” the United States' response will
be GRANTED and § 2255 motion will be
DENIED and DISMISSED WITH
25, 2012, Petitioner committed two armed carjackings
[Presentence Investigation Report (PSR) ¶¶ 6-10].
He subsequently pled guilty to two counts of armed
carjacking, in violation of 18 U.S.C. § 2119, and one
count of using, carrying, and brandishing a firearm during
and in relation to a crime of violence, in violation of 18
U.S.C. § 924(c), in exchange for dismissal of a second
§ 924(c) count [Doc. 14]. On February 27, 2013, this
Court sentenced Petitioner to an aggregate term of 240
months' incarceration-concurrent 156-month terms for the
§ 2119 offenses and a consecutive 84 months for the
§ 924(c) offense [Doc. 20]. No direct appeal was taken.
Nearly three and a half years later-on June 20,
2016-Petitioner filed the instant collateral challenge based
on the Johnson decision [Doc. 24].
STANDARD OF REVIEW
relief authorized by 28 U.S.C. § 2255 “does not
encompass all claimed errors in conviction and
sentencing.” United States v. Addonizio, 442
U.S. 178, 185 (1979). Rather, a petitioner must demonstrate
“(1) an error of constitutional magnitude; (2) a
sentence imposed outside the statutory limits; or (3) an
error of fact or law . . . so fundamental as to render the
entire proceeding invalid.” Short v. United
States, 471 F.3d 686, 691 (6th Cir. 2006) (quoting
Mallett v. United States, 334 F.3d 491, 496-97 (6th
Cir. 2003)). He “must clear a significantly higher
hurdle than would exist on direct appeal” and establish
a “fundamental defect in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Fair
v. United States, 157 F.3d 427, 430 (6th Cir. 1998).
extent Petitioner argues that the Johnson decision
invalidated the residual clause in § 924(c)(3)(B)'s
definition of crime of violence and that the absence of that
provision requires vacatur of his conviction under §
924(c)(1)(A), the argument fails for two reasons.
binding Sixth Circuit precedent holds that while
Johnson invalidated the residual provision of the
ACCA and identically worded clause in Section 4B1.2 of the
United States Sentencing Guidelines, §
924(c)(3)(B)'s definition of crime of violence remains
unaffected. See United States v. Pawlak, 822 F.3d
902, 911 (6th Cir. 2016) (concluding “rationale of
Johnson applies equally” to the
Guidelines' definition of crime of violence); United
States v. Taylor, 814 F.3d 340, 376-79 (6th Cir. 2016)
(recognizing at least four “significant
differences” between the residual clause in §
924(c)(3)(B) and the ACCA's residual clause and noting
“the argument that Johnson effectively invalidated [the
former] is . . . without merit”).
even if Johnson's reasoning could be used to
invalidate § 924(c)(3)(B)'s residual clause,
Petitioner's conviction under § 924(c) would remain
valid because armed carjacking is crime of violence under the
use-of-physical-force clause contained in §
924(c)(3)(A). An offense qualifies as a crime of violence if
it “has 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).
Federal carjacking-defined as the intentional taking of a
motor vehicle from the presence of another “by force
and violence or by intimidation, ” 18 U.S.C. §
2119-invariably involves the use of force capable of causing
physical pain or injury, see In re Smith, No.
16-13661-J, 2016 WL 3895243, at *3 (11th Cir. July 18, 2016)
(finding, post-Johnson, that federal carjacking categorically
qualifies as a crime of violence under the
use-of-physical-force clause in 18 U.S.C. §
924(c)(3)(A)); United States v. Jones, No. 15-30752,
2016 WL 1042534, at *1 (5th Cir. March 14, 2016) (stating
that “[c]arjakcing is always and without exception a
‘crime of violence' as that term is defined in 18
U.S.C. § 924(c)(3)). The Johnson decision has
no impact on this categorization and, as a result, cannot
serve as grounds for granting the requested relief.
reasons discussed, Petitioner's request for leave to file
a “traverse” to the United States' response
[Doc. 28] will be GRANTED and § 2255 motion [Doc. 24]
will be DENIED and DISMISSED WITH PREJUDICE. The Court will
CERTIFY any appeal from this action would not be taken in
good faith and would be totally frivolous. Therefore, this
Court will DENY Petitioner leave to proceed in forma
pauperis on appeal. See Rule 24 of the Federal
Rules of Appellate Procedure. Petitioner having failed to
make a substantial showing of the denial of a ...