United States District Court, E.D. Tennessee, Chattanooga
JASON L. GABEL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
S. MATTICE, JR. 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 [Docs. 20, 21]. 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 29, 2016 [Doc. 23]. Also before the Court is
Petitioner's pro se request for an Order requiring
Respondent provide him with unspecified
“documents” so that he can submit and litigate a
§ 2255 challenge [Doc. 19]. For the reasons below,
Petitioner's § 2255 motion will be DENIED and
DISMISSED WITH PREJUDICE. Petitioner's request for an
Order requiring the production of unspecified documents to
assist in the litigation of his § 2255 challenge will be
DENIED as moot.
2009, Petitioner robbed three hotels and a sandwich shop in
Chattanooga, Tennessee, all while armed with a black pistol
or a large knife [Presentence Investigation Report (PSR)
¶¶ 9-12]. He later pled guilty to, and was
subsequently convicted of, three counts of Hobbs Act robbery,
in violation of 18 U.S.C. § 1951; and one count of
brandishing a firearm during and in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c) [Doc. 18].
On August 19, 2010, this Court sentenced Petitioner to an
aggregate 200-month term of imprisonment- concurrent
116-month terms for the Hobbs Act robberies and a consecutive
84-month term for the § 924(c) offense [Id.].
No direct appeal was taken. On June 20, 2016, Petitioner
filed the instant motion challenging his conviction under
§ 924(c) based on the Johnson decision [Docs.
STANDARD OF REVIEW
obtain relief under 28 U.S.C. § 2255, 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).
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 because binding Sixth Circuit precedent
holds that while Johnson invalidated the residual
provision of the ACCA, § 924(c)(3)(B)'s definition
of crime of violence remains unaffected. See 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”). As
such, Hobbs Act robbery remains a crime of violence capable
of supporting the conviction under § 924(c)(1)(A).
REQUEST FOR PRODUCTION OF DOCUMENTS
addition to the pro se petition for collateral relief, this
Court is in possession of Petitioner's pro se request for
a Court Order requiring Respondent provide him with
unspecified documents necessary for the litigation of his
§ 2255 challenge [Doc. 19]. The request is made moot by
this Court's resolution of the underlying petition and
will be DENIED.
reasons discussed, Petitioner's § 2255 motion [Docs.
20, 21] will be DENIED and DISMISSED WITH PREJUDICE.
Petitioner's pro se request for the production of
unspecified documents [Doc. 19] will be DENIED as moot. 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
constitutional right, a certificate of appealability SHALL
NOT ISSUE. 28 U.S.C. § 2253; Rule 22(b) of the Federal
Rules of Appellate Procedure.
APPROPRIATE JUDGMENT ...