Rose v. United States

CEDRIC ROSE, Movant, v. UNITED STATES of AMERICA, Respondent.

No. 3:16-cv-02232-M (BT)

United States District Court, N.D. Texas, Dallas Division

January 20, 2022

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

REBECCA RUTHERFORD, UNITED STATES MAGISTRATE JUDGE.

Before the Court are (1) Movant Cedric Rose's successive motion and amended successive motion to vacate, set-aside, or correct his sentence under 28 U.S.C. § 2255 (CV ECF Nos 2, 48) and (2) the Government's motion to dismiss (CV ECF No. 53).^[1] For the following reasons, the Court should GRANT the Government's motion and DISMISS Rose's successive § 2255 motion, as amended.

Background

Following a one-day bench trial on May 5, 2008, the Court found Rose guilty as charged in the superseding indictment of possession with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii) (count one), possession of a firearm in furtherance of a drug-trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (count two), and being a felon in possession of a firearm in violation of 18 U.S.C §§ 922(g)(1) and 924(c)(1) (counts three and four). At sentencing, the Court determined that Rose qualified for a sentencing enhancement under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), for counts three and four.^[2] At that time, several of Rose's prior convictions qualified as predicate offenses under the ACCA: (1) his conviction for an aggravated sexual assault committed on May 10, 1991 (PSR ¶ 48); (2) his conviction for a burglary of a building committed on January 30, 1985 (PSR ¶ 44); (3) his conviction for an aggravated robbery committed on April 12, 1991 (PSR ¶ 47); (4) his conviction for an aggravated robbery committed on April 12, 1991 (PSR ¶ 47); and (5) his conviction for an aggravated robbery committed on January 9, 1985 (PSR ¶ 43). The Court also determined that Rose qualified for a sentencing enhancement under the federal “three strikes” law, 18 U.S.C. § 3559(c), for count two, based on his prior convictions for a robbery committed on December 12, 1983 (PSR ¶ 42) and an aggravated robbery committed on April 12, 1991 (PSR ¶ 46).^[3] Accordingly, the Court sentenced Rose to 360 months' imprisonment on each of counts one, three, and four, to run concurrently with each other, and consecutive to the mandatory life sentence imposed on count two.

The Fifth Circuit Court of Appeals affirmed Rose's convictions and sentence. See United States v. Rose, 587 F.3d 695 (5th Cir. 2009). And the Supreme Court denied his petition for a writ of certiorari. See Rose v. United States, 559 U.S. 1019 (2010).

Thereafter, Rose filed his first § 2255 motion, see Case No. 3:11-cv-417-P, which the Court dismissed with prejudice. Rose appealed, but the Fifth Circuit dismissed his appeal for want of prosecution. Undeterred, Rose filed his second § 2255 motion, see Case No. 3:14-cv-298-P, which the Court determined was successive and transferred it to the Fifth Circuit.

The Fifth Circuit denied Rose's request for authorization to file a successive § 2255 motion. See In re: Cedric Rose, No. 14-10112 (5th Cir. 2014).

Later, the Court appointed the Federal Public Defender to investigate Rose's claims for relief from his criminal sentence under Johnson v. United States, 576 U.S. 591 (2015), and to represent him in pursuit of any potentially meritorious claims. (CR ECF No. 78.) On June 3, 2016, Rose, through appointed counsel, filed the § 2255 motion resulting in this civil action-his third § 2255 motion. (CV ECF No. 2.) In it, he argued:

(1) The use of Texas aggravated robbery under Texas Penal Code §§ 29.02(a)(2) and 29.03(a)(3) as a “serious violent felony” under 18 U.S.C. § 3559 violates due process because it requires application of § 3559's “risk of force” clause. See Johnson, 576 U.S. at 591.

(2) The use of Texas aggravated robbery under Texas Penal Code §§ 29.02(a)(2) and 29.03(a)(3) as a “violent felony” under 18 U.S.C. § 924(c) violates due process because it requires application of § 924(c)'s “residual clause.” See Johnson, 576 U.S. at 591,

The same day, Rose also filed a motion for authorization to file a successive § 2255 motion in the Fifth Circuit, which cited Johnson, 576 U.S. at 591, as a basis for relief from his sentence-enhancements under the ACCA and § 3559(c). See In re Cedric Rose, No. 16-10718 (5th Cir.). He argued that the “risk of force” clause of § 3559(c)(2)(F)(ii) and the similarly-worded residual clause of § 924(e)(2)(B)(ii) are unconstitutionally vague. The Fifth Circuit granted Rose's motion for authorization in part with respect to his ACCA claim and denied it with respect to his § 3559(c) claim. (CV ECF No. 1.) Then, the Fifth Circuit transferred the case to this Court for further proceedings. (Id.)

In its response, the Government argues that, even post-Johnson, Rose has at least three prior convictions that qualify as predicate offenses under the ACCA and § 3559(c), and his motion should therefore be denied.^[4]

In January 2017, the Court stayed the case pending the Supreme Court's consideration of Rose's petition for a writ of certiorari in Rose v. United States, No. 16-7156 (U.S. pet. filed Dec. 12, 2016). (CV ECF No. 13.) The Supreme Court subsequently denied his petition for writ of certiorari, see Rose v. United States, 137 S.Ct. 2092 (2017), and this Court lifted the stay (CV ECF No. 14.).

Then, in November 2018, the Court again stayed the case pending a ruling from the Fifth Circuit on Rose's motion to authorize an additional claim challenging his sentences under § 3559(c). (CV ECF Nos. 24, 25). The Court lifted the stay in February 2019 and ordered the successive § 2255 reinstated as a pending motion. (CV ECF No. 26.)

The undersigned magistrate judge issued findings and conclusions, recommending that Rose's successive § 2255 motion be denied, and the action dismissed with prejudice for failure to make a substantial showing of the denial of a federal right. FCR (CV ECF No. 32). Rose filed an unopposed motion to stay the case or, in the alternative, for a second extension of time to file objections to the magistrate judge's findings and conclusions. (CV ECF No. 35.) On April 14, 2020, the Court stayed the case for a third time pending the Supreme Court's decision in Borden v. United States.

In Borden, the Supreme Court explained that “'[o]ffenses with a mens rea of recklessness do not qualify as violent felonies under' the Armed Career Criminal Act.” United States v. Travis, 2021 WL 6140251, at *1 (5th Cir. Dec. 29, 2021) (per curiam) (quoting Borden v. United States, 141 S.Ct. 1817 (2021)). And in view of that holding, the magistrate judge vacated her findings and conclusions and entered an order directing the parties to file supplemental briefs to address the impact of Borden on Rose's claims.

In its supplemental brief (CV ECF No. 44), the Government argues that the Court should deny Rose's motion on the basis that he continues to have three qualifying predicate convictions under the ACCA: (1) his conviction for aggravated sexual assault committed on May 10, 1991 (PSR ¶ 48); (2) his conviction for burglary of a building committed on January 30, 1985 (PSR ¶ 44); and (3) his conviction for aggravated robbery committed on January 9, 1985 (PSR ¶ 43). However, Rose argues in his supplemental brief that, in view of Borden, he is entitled to collateral relief from both his ACCA-enhanced sentences (counts three and four) and his § 3559(c) sentence (count two). (CV ECF No. 45.).

On August 11, 2021, Rose filed an unopposed motion to amend or correct his successive § 2255 motion under Federal Rule of Civil Procedure 15(c)(1)(B). (CV ECF No. 46.) In his amendment, he challenges his § 3559(c) sentence on vagueness grounds and argues that Supreme Court precedent foreclosed vagueness challenges to 18 U.S.C. § 3559(c)(2)(F)(ii) and 18 U.S.C. § 924(e)(2)(B)(ii) prior to Johnson. He further argues that the Fifth Circuit twice declined to allow him to raise his challenge to his sentence under § 3559(c) prior to Davis. The next day, the Court granted the motion to amend and filed Rose's proposed amended successive § 2255 motion. (CV ECF No. 47.)

In his amended successive § 2255 motion, Rose argues:

(1) His mandatory life sentence under § 3559(c), for count two, is unlawful and unconstitutional because the residual clause in § 3559(c)(2)(F)(ii) is unconstitutionally vague; and

(2) His ACCA-enhanced sentences for counts three and four are unlawful and unconstitutional because without the residual clause found in § 924(e)(2)(B)(ii) he was not eligible for statutory enhancement.

On November 12, 2021, the Government moved to dismiss Rose's successive § 2255 motion, arguing that his newly authorized claims do not meet the threshold requirements for a successive § 2255 motion, and the Court should dismiss them. (CV ECF No. 53.) Rose did not file a response. Thus, his successive § 2255 motion is fully-briefed and ripe for determination.

Legal Standards and Analysis

A prisoner must satisfy two requirements before a court will hear a second or successive habeas motion on the merits. United States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018). First, the prisoner must obtain prior authorization for filing a second or successive motion in the district court. 28 U.S.C. § 2244(b)(3)(A). A Circuit Court may authorize a second or successive § 2255 motion if a prisoner shows:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found [the movant] guilty of the offense; or

(2) a new rule of constitutional law, made retroactive to cases

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