Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Monroe v. United States

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

April 9, 2019

Patrick L. Monroe, Movant,
v.
United States of America, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          RENEE HARRIS TOLIVER UNITED STATES MAGISTRATE 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, 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 jurisdiction.

         I. BACKGROUND

         In July 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).

         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 Monroe's motion for authorization to file a successive Section 2255 motion.”[1] 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).

         The 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.[2]

         II. ANALYSIS

         Before 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] motion.”).[3]

         Considering 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).

         As for 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 force).[4]

         Consequently, 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).[5] 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 Addendum).

         That 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).

         In sum, 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 motion.[6]

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.