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Cook v. United States

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

March 28, 2019

Donald Cecil Cook, Movant,
v.
United States of America, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES DSITRICT JUDGE.

         Pursuant to 28 U.S.C. § 636(b) and Special Order 3, this civil action was referred to the undersigned United States magistrate judge for case management. As detailed here, Movant Donald Cecil Cook's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 is successive and, as such, should be DISMISSED for lack of jurisdiction.

         I. BACKGROUND

         On January 23, 2007, Cook pled guilty to possessing a firearm after conviction of a felony offense and, on June 8, 2007, was sentenced under the Armed Career Criminal Act (“ACCA”) to 188 months' imprisonment and a three-year term of supervised release. Crim. Doc. 33. His appeal was dismissed as frivolous. United States v. Cook, 274 Fed.Appx. 411 (5th Cir. 2008). Cook sought post-conviction relief under 28 U.S.C. § 2255, but his motion was dismissed as time barred. See Cook v. United States, No. 3:14-CV-1557 (N.D. Tex. 2014).

         Following the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), finding that the residual clause of the ACCA was unconstitutionally vague, the United States Court of Appeals for the Fifth Circuit tentatively granted Cook's motion for authorization to file a successive Section 2255 motion and noted that it could not “determine, from the available record, whether [Cook's prior Texas burglary] convictions implicate the ACCA's residual clause.”[1] In re Cook, No. 16-10711, Doc. 1 at 2 (5th Cir. June 16, 2016). Through appointed counsel, Cook then filed the instant Section 2255 motion, challenging under Johnson the two Texas burglary convictions used to enhance his sentence. Doc. 2 at 7. Subsequently, this case was stayed until the Fifth Circuit, sitting en banc, held that Texas burglary convictions no longer qualify as violent felonies and, thus, cannot be used to enhance sentences under the ACCA. United States v. Herrold, 883 F.3d 517 (5th Cir. 2018) (en banc), pet. for cert. filed, Nos. 17-1445, 17-9127 (Apr. 18, 2018); Doc. 10.

         The Government now argues that Cook cannot satisfy the standard for a successive Section 2255 motion-namely, make a Johnson predicate jurisdictional showing-because, when he was sentenced in 2007, all Texas burglary convictions, seeTex. Penal Code § 30.02(a), were considered generic burglaries under the enumerated-offense clause of the ACCA. Doc. 20 at 5-6. Cook replies that he has indeed shown Johnson error. Doc. 13 at 5-6; Doc. 17 at 3-6. After reviewing the record and the applicable law, the Court concludes that Cook has failed to make the requisite jurisdictional showing.[2]

         II. ANALYSIS

         Before this Court can review Cook's successive Section 2255 motion, he must make the requisite jurisdictional showing under 28 U.S.C. § 2244(b)(2) and (4). United States v. Wiese, 896 F.3d 720, 723 (5th Cir. 2018), cert. denied, 2019 WL 1231818 (Mar. 18, 2019) (finding a “prisoner must actually prove at the district court level that the relief he seeks relies either on a new, retroactive rule of constitutional law or on new evidence”). Under the most favorable standard, Cook must show that the sentencing court “may have” relied on the residual clause in imposing the ACCA enhancement. Id. at 724-26. (“The dispositive question . . . is whether the sentencing court relied on the residual clause in making its sentencing determination-if it did, then Johnson creates a jurisdictional predicate . . . to reach the merits of [the] motion.”).[3]

         In Wiese, the Fifth Circuit held that “[i]n 2003, when Wiese was convicted of being a felon in possession, all of § 30.02(a) was considered generic burglary under the enumerated offenses clause of ACCA” and, thus, subsequent decisions interpreting Texas burglary had no effect. Wiese, 896 F.3d at 725-26. Because this Court is bound by Fifth Circuit precedent, Wiese controls the resolution of Cook's case.

         As in Wiese, at Cook's June 2007 sentencing, the Court did not state whether it considered Cook's prior Texas burglary convictions as ACCA predicates under the enumerated offense clause or the residual clause. Crim. Doc. 38 at 8. That notwithstanding, because he was sentenced well before the 2008 decisions in United States v. Constante, 544 F.3d 584, 587 (5th Cir. 2008) (per curiam), and Martinez v. State, 269 S.W.3d 777 (Tex. App.-Austin 2008, no pet.), all violations of the Texas burglary statute were “considered generic burglary under the enumerated offenses clause of ACCA.”[4] Wiese, 896 F.3d at 725; see also United States v. Ricks, No. 17-50586, - Fed.Appx. -, 2019 WL 1163919, at *1-2 (5th Cir. Mar. 12, 2019) (per curiam) (extending Wiese to successive motion challenging 2008 ACCA sentence that preceded Constante and Martinez); United States v. Winterroth, - Fed.Appx. -, 2019 WL 151332, at *1-2 (5th Cir. Jan. 9, 2019) (per curiam) (same as to 2006 ACCA sentence). Thus, “[n]othing in the legal landscape at the time of [Cook's] sentencing would have caused the sentencing court to consider whether his prior Texas burglary convictions were anything other than the enumerated offense of burglary.” Winterroth, - Fed.Appx. -, 2019 WL 151332, at *2.

         In addition, just like in Wiese, Cook's presentence report (PSR) identified his prior burglary convictions as “Burglary of a Habitation” and “Burglary of a Building, ” and the indictments available at sentencing confirmed that he had been convicted of offenses with the requisite intent under Section 30.02(a)(1). Crim. Doc. 40 at 7, PSR ¶ 24; Crim. Doc. 40 at 26-27 (copies of indictments enclosed with Cook's Objections to the PSR). As Cook concedes, the Fifth Circuit had previously concluded that burglary of a building under Section 30.02(a)(1) was a crime of violence for the purposes of the enumerated-offense clause. See United States v. Fuller, 453 F.3d 274, 278 (5th Cir. 2006) (citing United States v. Silva, 957 F.2d 157, 162 (5th Cir. 1992)). As such, there was no basis for the Court to consider the applicability of either burglary conviction under the ACCA's residual clause, and Cook has offered nothing more “than a mere theoretical possibility that the sentencing court relied on the residual clause to sentence him.” Winterroth, - Fed.Appx. - 2019 WL 151332, at *2.

         The record further bears this out. At sentencing, the Court expressly rejected defense counsel's arguments-that burglary of a habitation “count[ed] under . . . either statute” and that burglary of a building was not a crime of violence unless force or violence was alleged, see Crim. Doc. 38 at 3-4, 6, 8; Crim. Doc. 40 at 23. Thus, in applying the ACCA enhancement, the Court necessarily found the converse of defense counsel's overruled arguments, to-wit: that both burglary convictions qualified as enumerated offenses. In any event, defense counsel's arguments, simply did not suffice “to put the residual clause on the sentencing court's radar in this case.” Wiese, 896 F.3d at 725.

         In sum, Cook has not met his burden to establish that, at a minimum, the Court “may have” relied on the residual clause in sentencing him under the ACCA. Consequently, Johnson is not a jurisdictional predicate for his successive motion and the Court lacks jurisdiction to review his motion.

         III. ...


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