United States District Court, N.D. Texas, Dallas Division
Patrick L. Monroe, Movant,
United States of America, Respondent.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
HARRIS TOLIVER UNITED STATES MAGISTRATE 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, including findings and
a recommended disposition. As detailed here, Movant Patrick
L. Monroe's successive Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. §
2255 should be DISMISSED for lack of
2002, Monroe pled guilty to possessing a firearm after
conviction of a felony offense and, on March 5, 2003, was
sentenced under the Armed Career Criminal Act
(“ACCA”) to 180 months' imprisonment and a
five-year term of supervised release. Crim. Doc. 36. He did
not pursue a direct appeal, and his first motion for
post-conviction relief under 28 U.S.C. § 2255 was
dismissed as time barred. See Monroe v. United
States, No. 3:13-CV-02546-G-BK, 2013 WL 6199955 (N.D.
Tex. Nov. 26, 2013) (R. & R. accepted).
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 Monroe's motion
for authorization to file a successive Section 2255
motion.” In re Monroe, No. 16-10711, Crim.
Doc. 45 at 2 (5th Cir. June 13, 2016) (“Our assessment
of Monroe's motion is limited by the records available to
us, and . . . the district court must dismiss the § 2255
motion without reaching the merits if it determines that
Monroe has failed to make the showing required by §
2255(h)(2).”). Through appointed counsel, Monroe then
filed the instant Section 2255 motion, challenging under
Johnson the prior Texas robbery, burglary, and
aggravated assault convictions used to enhance his federal
sentence. Doc. 1 at 7. Subsequently, this case was stayed
until after 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. Doc. 10; 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).
Government now argues that Monroe cannot satisfy the standard
for a successive Section 2255 motion-namely, make a
Johnson predicate jurisdictional showing-and
establish that he was sentenced under the ACCA's residual
clause. The Government maintains that, when Monroe was
sentenced in 2003, all Texas burglary convictions,
see Tex. Penal Code § 30.02(a), were considered
generic burglaries under the enumerated-offense clause of the
ACCA, and that his Texas aggravated assault and robbery
convictions involved the use of force and, thus, fell under
the force clause of the ACCA. Doc. 12 at 15 n. 5, 17. Monroe
replies that he has sufficiently shown Johnson
error. Doc. 17 at 5-7. After reviewing the record and the
applicable law, the Court concludes that Monroe has failed to
make the requisite jurisdictional showing.
this Court can review Monroe'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, - S.Ct. -, 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, Monroe
must show that the sentencing court “may have”
relied on the residual clause in imposing punishment under
the ACCA. 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]
first Monroe's prior Texas burglary conviction,
Wiese dooms his Johnson jurisdictional
showing. Like Wiese, when Monroe was sentenced in 2003,
“all of § 30.02(a) was considered generic burglary
under the enumerated offenses clause of ACCA” and,
thus, subsequent decisions interpreting Texas burglary were
of no effect. Wiese, 896 F.3d at 725-26.
Consequently, there was no basis for this Court to consider
the applicability of his prior burglary conviction under the
ACCA's residual clause. See United States v.
Winterroth, - Fed.Appx. -, 2019 WL 151332, at *2 (5th
Cir. Jan. 9, 2019) (per curiam) (finding “a mere
theoretical possibility that the sentencing court relied on
the residual clause to sentence him” insufficient).
Monroe's two Texas convictions for aggravated assault
with a deadly weapon, he again fails to make the requisite
jurisdictional showing. At the March 2003 sentencing hearing
the Court did not explicitly state whether it relied on
ACCA's force or the residual clause. However, at that
time, aggravated assault with a deadly weapon under Tex.
Penal Code § 22.02(a)(2) was viewed as a crime of
violence under the ACCA's force clause because an element
of the crime was “the use, attempted use, or threatened
use of physical force against the person of another.”
See18 U.S.C. § 924(e)(2)(B)(i); Crim. Doc. 37
(Sentencing Tr.); United States v.
Martinez, 962 F.2d 1161, 1168-69 (5th Cir. 1992)
(holding Texas aggravated assault required “proof of
the use or threat of physical force” and was therefore
a violent felony under § 924(e)); United States v.
Shelton, 325 F.3d 553, 557, 561 (5th Cir. 2003) (finding
a predicate offense of misdemeanor assault, which required
bodily injury, to require use of physical
there was nothing on the legal landscape at the time of
sentencing that supports the conclusion that this Court's
application of the ACCA as to Monroe's aggravated assault
priors was based on anything other than the force clause.
See Pryor v. United States, No.
CR-H-04-258, 2018 WL 7361007, at *5 (S.D. Tex. Oct. 31,
2018), R. & R. adopted, 2019 WL 699127 (S.D.
Tex. Feb. 20, 2019) (holding that in 2005 aggravated assaults
were viewed as crimes of violence under force
clause). Indeed, defense counsel's decision not
to challenge the ACCA enhancement at sentencing further
supports the conclusion that at the time Monroe was
sentenced, it was well settled that prior Texas aggravated
assault offenses were classified as crimes of violence under
the force clause. Crim. Doc. 37; Crim. Doc. 52-1 (PSR
notwithstanding, even if the sentencing Court had relied on
the ACCA's residual clause-thus implicating
Johnson-Monroe cannot demonstrate prejudice because
as the law currently stands, his two Texas aggravated assault
convictions are still viewed as crimes of violence under the
force clause. See United States v. Gomez
Gomez, 917 F.3d 332, 334 (5th Cir. 2019) (relying on
Reyes-Contreras to conclude that Texas aggravated
assault was crime of violence under the force clause of 18
U.S.C. § 16(a)); Bivins v. United States, No.
3:16-CV-1697-D-BK, 2019 WL 360538, at *2 (N.D. Tex. Jan. 9,
2019), R. & R. adopted, 2019 WL 358509, at *1
(N.D. Tex. Jan. 29, 2019) (collecting cases applying
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993),
harmless error analysis to initial and successive
Johnson-based Section 2255 motions and assessing
prejudice based on current law).
Monroe 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 successive Section 2255