Eubanks v. United States, 2:97-cr-00110-DCN

CARL ANTHONY EUBANKS, Petitioner, v. UNITED STATES OF AMERICA Respondent.

No. 2:97-cr-00110-DCN

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF SOUTH CAROLINA CHARLESTON DIVISION

December 30, 2019

ORDER

This matter is before the court on petitioner Carl Anthony Eubanks's ("Eubanks") motion to vacate, set aside, or correct his federal sentence pursuant to 28 U.S.C. § 2255, ECF No. 98, and supplemental § 2255 motion, ECF No. 107. The government filed a motion to dismiss or, in the alternative, for summary judgment, ECF No. 113. For the reasons set forth below, the court denies Eubanks's motions and grants the government's motion.

I. BACKGROUND

On March 12, 1997, an indictment charged Eubanks of armed bank robbery in violation of 18 U.S.C. § 2113 (Count 1); possession of a firearm during or in relation to a crime of violence in violation of 18 U.S.C. § 924(c) (Count 2); and possession of a weapon by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and § 924(e) (Count 3). The government filed notice pursuant to 18 U.S.C. § 3559 (also known as the "three-strikes law") that, if convicted, Eubanks would be subject to a mandatory life sentence based on two prior convictions. A jury found Eubanks guilty of all three counts. On December 17, 1998, the court sentenced Eubanks to life imprisonment for Counts 1 and 3 to run concurrently, and life imprisonment for Count 2 to run consecutively to Counts 1 and 3.

On May 3, 2016, the Fourth Circuit granted authorization for Eubanks to file a second or successive 2255 motion based on Johnson v. United States, 135 S. Ct. 2551 (2015).¹ On the same day, Eubanks, acting pro se, filed a motion to vacate under 28 U.S.C. § 2255. ECF No. 98. With the court's permission, Eubanks, through his counsel, supplemented his motion on July 27, 2016. ECF No. 107. On September 29, 2016, the government filed its motion to dismiss, or in the alternative, for summary judgment. ECF No. 113. On September 18, 2017, Eubanks filed his response to the government's motion. ECF No. 114. On July 23, 2019, Eubanks filed a response in support his petition. ECF No. 116.

II. STANDARD

Pursuant to 28 U.S.C. § 2255(a):

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

The petitioner must prove the grounds for collateral attack by a preponderance of the evidence.² See King v. United States, 2011 WL 3759730, at *2 (D.S.C. Aug. 24, 2011) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).

If, on a motion to dismiss, the court considers matters outside of the pleadings, such as a party's supporting memoranda and attachments, the court treats the motion as one for summary judgment. Fed. R. Civ. P. 12(d). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). At the summary judgment stage, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Anderson v. Liberty lobby, Inc., 477 U.S. 242, 255 (1986).

III. DISCUSSION

Eubanks argues that, based on the Supreme Court's ruling in Johnson, his sentence violates the due process clause. In his supplement filed by counsel, Eubanks expands on this argument. He contends that in light of Johnson, he no longer has the requisite number of qualifying predicate offenses to be classified as an armed career criminal under the Armed Career Criminal Act ("ACCA") or as a career offender under the United States Sentencing Guidelines ("Sentencing Guidelines"). Eubanks further argues that his prior convictions no longer subject him to mandatory life imprisonment under 18 U.S.C. § 3559. The common thread amongst these three sources—the ACCA, the Sentencing Guidelines, and § 3559—is that they contain the same or similar language, known as the residual clause, that the Johnson Court found to be unconstitutionally vague within the ACCA.

However, the problem that arises from Eubanks's arguments related to the Sentencing Guidelines and § 3559 is their timeliness. Section 2255 imposes a one-year period of limitations, relevant here, from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Eubanks filed his § 2255 motion based on the newly recognized right in Johnson that the ACCA's residual clause is void for vagueness, which was made retroactive by Welch v. United States, 136 S. Ct. 1257, 1365 (2016). However, the newly recognized right in Johnson only relates to the residual clause in the ACCA, not the residual clause in the Sentencing Guidelines or in § 3559. Indeed, in Beckles v. United States, 137 S. Ct. 886 (2017), the Supreme Court subsequently "made clear that the right announced in Johnson did not automatically apply to all similarly worded residual clauses." United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017), cert. denied, 139 S. Ct. 14 (2018).

The Fourth Circuit confronted a similar argument to the ones currently before the court in Brown. The petitioner argued that, based on Johnson's invalidation of the ACCA's residual clause, his resisting-arrest assault conviction could not serve as a predicate crime of violence under U.S.S.G. § 4B1.2(a). Id. at 300. The logic of the petitioner's argument, like Eubanks's argument here, was that Johnson invalidated not only the ACCA's residual clause but also the similar residual clause in the Sentencing Guidelines. The Fourth Circuit rejected that argument, explaining that Beckles limited the application of Johnson to the ACCA and that the Supreme Court has not recognized any right related to the residual clause in the Sentencing Guidelines. The Fourth Circuitexplained that "[i]n a future case, the Supreme Court may agree with an argument similar to Petitioner's that because the challenged residual clause looks like ACCA and operates like ACCA, it is void for vagueness like ACCA." Id. at 303. However, the Fourth Circuit continued, "Beckles demonstrates that quacking like ACCA is not enough to bring a challenge within the purview of the right recognized by Johnson." Id. As such, the court found that the petitioner's motion was untimely in light of § 2255(f)(3)'s requirement of a newly recognized right. Following the reasoning and holding of Brown, Johnson does not recognize any new right that is applicable to the Sentencing Guidelines³ or § 3559, meaning that Eubanks's arguments as to the Sentencing Guidelines and § 3559 are untimely.

The court acknowledges that district courts outside of the Fourth Circuit have noted that Johnson and Dimaya leave the residual clause of § 3559 "in constitutional doubt" and granted relief to § 2255 petitioners, in part, on that basis. United States v. Minjarez, 374 F. Supp. 3d 977, 985, 994 (E.D. Cal. 2019); Haynes v. United States, 237 F. Supp. 3d 816, 823 (C.D. Ill.), appeal dismissed, 873 F.3d 954 (7th Cir. 2017), and aff'd, 936 F.3d 683 (7th Cir. 2019). However, this court is bound by Fourth Circuit law and, like the Fourth Circuit, is "constrained from reading between the lines of Booker, Johnson, and Beckles to create a right that the Supreme Court has yet to recognize."Brown, 868 F.3d at 304. The Supreme Court has not yet recognized a right related to the residual clauses in the Sentencing Guidelines or § 3559. As such, the court finds Eubanks's motion as to these two arguments to be untimely.⁴

However, Eubanks's challenge based on the ACCA is ripe for determination, as Johnson found the residual clause in the ACCA to be void for vagueness. Therefore, the court is left with the question of whether, absent the residual clause, Eubanks was properly classified and sentenced as an armed career criminal under the ACCA. Eubanks was found guilty of being a felon in possession of a firearm under 18 U.S.C. § 922(g). Section 924(e) provides that any person who violates § 922(g) and has three previous convictions for a violent felony, a serious drug offense, or both shall be imprisoned for no less than fifteen years. The statute defines "violent felony" as a crime punishable by imprisonment for more than a year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 922(e)(2)(B) (emphasis added). The underlined portion of the definition is the unconstitutionally vague residual clause. Therefore, the definitions that remain intact after Johnson are subsection (i), known as the force clause, and the first part of subsection (ii), known as the enumerated offense clause.

Eubanks's previous convictions that formed the basis for his classification as an armed career criminal were his 1977 New York state conviction of second-degree robbery, his 1984 New York state conviction of attempted possession of a dangerous contraband in prison, and his 1982 New York state conviction of attempted first-degree robbery, second-degree criminal possession of a dangerous weapon, and second-degree attempted assault. Eubanks argues that none of his predicate offenses fall within the enumerated offense clause, and that those offenses also do not meet the definition of a violent felony set forth in the force clause, meaning that Eubanks is...