United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
the Court is the pro se motion of Petitioner, Brent
Haynes, to vacate, set aside, or correct his sentence
(“the Petition”), pursuant to 28 U.S.C. §
2255. (Docket Entry (“D.E.”) 1.) For the
following reasons, the Petition is DENIED.
2012, Haynes pleaded guilty to carjacking, in violation of 18
U.S.C. § 2119, possession of a firearm in furtherance of
a crime of violence (carjacking), in violation of 18 U.S.C.
§ 924(c), and being a fugitive in possession of a
firearm, in violation of 18 U.S.C. § 922(g). (United
States v. Haynes, No. 1:12-cr-10030-JDB-1, D.E. 47.) The
Court imposed a sentence of 117 months' incarceration and
two years of supervised release. (Id. at D.E. 55.)
Haynes did not take a direct appeal. He filed his Petition in
May 2016, seeking to have his firearm conviction and sentence
prisoner seeking to vacate his sentence under § 2255
“must allege either: (1) an error of constitutional
magnitude; (2) a sentence imposed outside the statutory
limits; or (3) an error of fact or law that was so
fundamental as to render the entire proceeding
invalid.” Short v. United States, 471 F.3d
686, 691 (6th Cir. 2006) (internal quotation marks omitted).
The petitioner has the burden of proving by a preponderance
of the evidence that he is entitled to relief. Pough v.
United States, 442 F.3d 959, 964 (6th Cir. 2006).
asserts that the Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015), renders
unconstitutional his conviction under 18 U.S.C. §
924(c), for possession of a firearm during and in relation to
a “crime of violence.” He insists that the
definition of “crime of violence” under the
statute's residual clause, 18 U.S.C. § 924(c)(3)(B),
is unconstitutionally vague, and that carjacking is not
categorically such a crime under the statute's elements
clause, 18 U.S.C. § 924(c)(3)(A), because it can be
committed by intimidation. (D.E. 1 at PageID 2-6.)
5, 2018, he filed a motion to supplement his Petition,
arguing that the recent decision in Sessions v.
Dimaya, 138 S.Ct. 1204 (2018), further supports his
claim. (D.E. 7 at PageID 16-18.) The Court allowed Petitioner
to supplement the Petition with his Dimaya argument
and ordered Respondent, United States of America, to respond
to the Petition, as supplemented. (D.E. 8 at PageID 21.) On
February 13, 2019, the Government filed its response, arguing
that the Petition's sole claim is without
merit. (D.E. 12.) The Court agrees.
federal carjacking statute provides that a person is guilty
of carjacking when, ‘with the intent to cause death or
serious bodily harm,' a person ‘takes a motor
vehicle ... from the person or presence of another by force
and violence or by intimidation.'” United
States v. Jackson, 918 F.3d 467, 484 (6th Cir. 2019)
(quoting 18 U.S.C. § 2119). The firearm statute, 18
U.S.C. § 924(c), provides in pertinent part that,
[e]xcept to the extent that a greater minimum sentence is
otherwise provided by this subsection or by any other
provision of law, any person who, during
and in relation to any crime of violence or drug
trafficking crime (including a crime of violence or drug
trafficking crime that provides for an enhanced punishment if
committed by the use of a deadly or dangerous weapon or
device) for which the person may be prosecuted in a court of
the United States, uses or carries a firearm, or who,
in furtherance of any such crime, possesses a
firearm, shall, in addition to the punishment provided for
such crime of violence or drug trafficking crime-
(i) be sentenced to a term of imprisonment of not less than 5
(ii) if the firearm is brandished, be sentenced to a term of
imprisonment of not less than 7 years; and
(iii) if the firearm is discharged, be sentenced to a term of
imprisonment of not less than 10 years.
18 U.S.C. § 924(c)(1)(A)(i)-(iii) (emphasis added).
924(c)(3) sets forth a “two-part definition” of
crime of violence, “only one part of which need
apply.” United States v. Robinson, 708
Fed.Appx. 272, 273 (6th Cir. 2017). “First, a crime of
violence is a felony that ‘has as an element the use,
attempted use, or threatened use of physical force against
the person or property of another.'” Id.
(quoting 18 U.S.C. § 924(c)(3)(A)). This is known as the
“elements clause.” Jackson, 918 F.3d at
485. “Second, a crime of violence is a felony
‘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 the offense.'”
Robinson, 708 Fed.Appx. at 273 (quoting 18 U.S.C.
§ 924(c)(3)(B)). This language is referred to as the
statute's “residual clause.” United
States v. Camp, 903 F.3d 594, 597 n.2 (6th Cir. 2018).
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), contains similarly worded clauses.
See 18 U.S.C. § 924(e)(2)(B). In
Johnson, the United States Supreme Court held that
the ACCA's residual clause is unconstitutionally void for
vagueness. Johnson, 135 S.Ct. at 2557. Therefore, an
enhanced sentence under that clause violates due process as
guaranteed by the Fifth Amendment. Id. at 2556-57.
Subsequently, in Dimaya, the Court held that the
“residual clause in 18 U.S.C. § 16(b) . . . is
unconstitutionally vague as incorporated into ...