United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES DSITRICT JUDGE.
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
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).
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.” 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.
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.
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]
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.
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.” 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.
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.
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.
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