United States v. Jacobs

UNITED STATES OF AMERICA, Plaintiff, v. ELISHA JACOBS, Defendant.

Case No. 7:98-CR-02-JMH-HAI

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at PIKEVILLE

June 22, 2020

MEMORANDUM OPINION & ORDER***

To use the analogies that have accumulated in this case, Russian nesting dolls and onions consist of layers that, if peeled back far enough, lead to a certain and inevitable end. But if peeled too deeply, as the government alleges has happened in the legal analysis of Elisha Jacobs' petition to vacate his sentence, it becomes easy to forget what it was in its original form.

This case is full of layers. There are multiple levels of predicate crimes making up Jacobs' 1999 convictions. There are potential errors and oversights now apparent in the jury instructions and indictment. There are multiple tests and methods of statutory interpretation to be employed. United States Magistrate Judge Hanly A. Ingram's nesting-dolls analogy ultimately led to the conclusion that Jacobs' convictions under 18 U.S.C. § 924(c) may not stand. This Court disagrees.

Jacobs filed a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence by a person in federal custody. [DEs 99, 102, 106]. Specifically, he challenges two convictions under 18 U.S.C. § 924(c), a federal statute that creates a separate offense when a defendant uses a firearm while committing certain other crimes. The "other crimes" in this case are interstate domestic violence pursuant to 1996 versions of 18 U.S.C. §§ 2261(a)(1) and (a)(2). The core question before this Court is whether Jacobs' two convictions under that statute qualify as crimes of violence following the United States Supreme Court's holding in United States v. Davis, ___ U.S. ___, 139 S. Ct. 2319 (2019). In that case, the Supreme Court held that one of the two ways to define a "crime of violence" for purposes of § 924(c)—the "residual clause"—was unconstitutionally vague. Id. The definition that still stands—the so-called "elements clause"—requires federal courts to find that the predicate crime had, 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).

Magistrate Judge Ingram conducted a careful and lengthy analysis of § 924(c) and the underlying predicate crimes, finding that Jacobs' motion should be granted. The undersigned agrees with Magistrate Judge Ingram's recognition that "this is a decision of gravity and may mean Jacobs has been imprisoned without a basis since the expiration of his initial 70-month term." [DE 111 at 1].The government, in its objection to Magistrate Judge Ingram's recommendation, criticizes the report's analysis and application of recent decisions to Jacobs' case. [DE 112]. Jacobs, through counsel, addresses each of the government's arguments. [DE 115].

In the process of making a recommendation, Magistrate Judge Ingram unearthed concerning potential errors in the jury instructions given at trial. It is now evident that Jacobs' jury was, at the very least, not fully instructed on an element of the predicate § 2261 crime. This is where Magistrate Judge Ingram's and the governments analogies come into play: § 924 charges must be predicated on crimes of violence. The predicates charged by the United States in this case, two violations of the Violence Against Women Act ("VAWA"), each require the government to demonstrate that the defendant committed an underlying crime of violence, too. 18 U.S.C. § 2261. Magistrate Judge Ingram, understandably, thought it unjust to uphold a § 924(c) conviction when the underlying crime may have been inadequately proven to the jury.

But after wading through and distilling the issue central to Jacobs' § 2255 petition, this Court finds that his request must be DENIED.

I. FACTUAL AND PROCEDURAL BACKGROUND

Jacobs was convicted on April 16, 1999 on all seven counts in the indictment against him following a jury trial before the undersigned. [DE 54 at 1]. The indictment read as follows:

Count 1: Kidnapping, 18 U.S.C. § 1201

Count 2: Interstate domestic violence, 18 U.S.C. § 2261(a)(2)

Count 3: Use of a deadly weapon during a crime of violence, 18 U.S.C. 924(c)

Count 4: Interstate violation of a protective order, 18 U.S.C. § 2262

Count 5: Interstate domestic violence, 18 U.S.C. § 2261(a)(1)

Count 6: Possession of a firearm while subject to a court order, 18 U.S.C. § 922(g)

Count 7: Use of a deadly weapon during a crime of violence, 18 U.S.C. § 924(c)

[DE 102 at 1; DE 2]. At sentencing, Jacobs' total offense level was categorized at 27 with a criminal history category of I. [Id. at 9]. He was sentenced to seventy months on Counts 1, 2, 4, 5, and 6, to run concurrently with a sixty-month sentence imposed on Count 3 and 240 months on Count 7. [DE 54 at 4]. The United States Court of Appeals for the Sixth Circuit upheld his convictions and sentence in 2001. United States v. Jacobs, 244 F.3d 503 (6th Cir. 2001).¹

On November 5, 2019, the Court received a pro se motion from Jacobs pursuant to 28 U.S.C. § 2255, seeking to vacate his § 924(c) convictions on Counts 3 and 7. [DE 99]. Because his initial motion was not signed under penalty of perjury and did not substantiallyfollow the § 2255 form, Jacobs was ordered to submit a corrected motion. [DE 101]. The Court received his complete § 2255 form on December 2, 2019. [DE 102]. He asked that his original motion, memorandum, and the subsequently filed form be considered together. [DEs 105, 106]. Magistrate Judge Ingram considered all of Jacobs' filings related to his § 2255 motion. [DE 111 at 3]. The government responded in opposition to Jacobs' § 2255 motion on December 27, 2019 [DE 108] and the Court received his reply on January 30, 2020. [DE 110].

Magistrate Judge Ingram filed a report and recommendation on April 13, 2020. [DE 111]. He recommended that Jacobs' petition be granted and, because of the complexity of the legal issues involved, ordered that counsel should be appointed to represent him pursuant to 18 U.S.C. § 3006A(a)(2)(B) in further proceedings. [Id.]. The United States filed objections to the report and recommendation on April 22, 2020 [DE 112] and Jacobs filed a response to the report and the objections on May 8, 2020. [DE 115]. Thus, the matter is ripe for review by this Court.

II. LEGAL STANDARD

A federal prisoner may obtain post-conviction relief from his sentence if it (1) violates the Constitution or federal law, (2) if the federal court lacked jurisdiction to impose such a sentence, or (3) if the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255(a); Mallett v. United States, 334 F.3d 491, 496-97(6th Cir. 2003) (internal citations omitted). A defendant alleging a constitutional error must establish that it is one of "constitutional magnitude" and show that it had a "substantial and injurious effect or influence on the proceedings" to get § 2255 relief. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 636-39 (1993)). If the defendant alleges a non-constitutional error, he or she must prove that the error constituted a central defect that "inherently results in a complete miscarriage of justice" or an error so egregious that it is essentially a violation of due process. United States v. Ferguson, 918 F.2d 617, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428(1968)).

Pursuant to 28 U.S.C. § 636(b)(1)(B), a district court may refer dispositive matters, including a motion to vacate a sentence under § 2255, to a magistrate judge to prepare a report and recommendation as to the motion's disposition. See also Fed. R. Crim. P. 59(b)(1). Parties have fourteen days after being served with the report and recommendation to specifically object in writing to the findings and recommendations. Id. at (b)(2). "The filing of objections to a magistrate's report enables the district judge to focus attention on those issues—factual and legal—that are at the heart of the parties' dispute." Thomas v. Arn, 474 U.S. 140, 147 (1985). The referring district court judge must review the specific objections de novo and "accept, reject, or modify therecommendation, receive further evidence, or resubmit the matter to the magistrate judge with instructions. Fed. R. Crim. P. 59(b)(3).

Although Jacobs now has an attorney, the Court still recognizes that his initial memorandum and § 2255 motion were written when he was proceeding pro se. Thus, the Court construes his pro se motions and support more leniently than if they had been prepared by lawyers. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Castro v. United States, 540 U.S. 375, 381-83 (2003).

III. DISCUSSION

The issue in this case is clear: to vacate Jacobs' convictions on Counts 3 and 7, the two counts of interstate domestic violence they are tied to must not qualify as a "crime of violence" under the elements clause of § 924(c)(3)(A). Though the question seems to be straightforward, it has become increasingly convoluted because of the now-apparent blunders in how the case was prosecuted. This Court attempts to distill and concisely apply the legal questions that encompass this case.

A. Timeliness of Jacobs' § 2255 petition

Jacobs' motion is timely under § 2255(f)(3), which provides a one-year limitation that begins to run on the date that the right was initially recognized by the Supreme Court, as long as the Supreme Court also recognizes that it is retroactively applicable on collateral review.

Although the report and recommendation noted that the government does not oppose the fact that Davis is retroactive and stated that the Sixth Circuit had yet to decide the issue, the Court of Appeals did directly address Davis's retroactivity in In re Franklin, 950 F.3d 909 (6th Cir. 2020)(per curiam). In that case, the Sixth Circuit held that Welch v. United States, 136 S. Ct. 1257, 1264-65 (2016), established the retroactivity of Davis because the case altered...