SHARON LOVELACE BLACKBURN, District Judge.
This case is currently before the court on petitioner Ricky Walter Denton's Response to Court's Order for Denton to Show Cause in Writing Why His Remaining Claims Should Not Be Summarily Dismissed. (Doc. 53.)
The Eleventh Circuit set forth the following brief history of the proceedings in this case as follows:
United States v. Denton, 697 Fed. Appx. 963, 965 (11th Cir. 2017)(footnote added). The Eleventh Circuit affirmed this court's denial of Denton's motion for a new trial. Id. at 968.
This matter is now before this court on Denton's Renewed and Amended Motion to Vacate. (Doc. 30; crim. doc. 425.) Previously, the court summarily dismissed Denton's ineffective assistance claims. (Doc. 39.) At that time, it entered a Show Cause Order, ordering Denton to show cause why his remaining claims should not be dismissed as procedurally barred. (Id.) Denton responded, (doc. 53), and this court, for the reasons set forth herein, finds that Denton's remaining claims are procedurally barred and/or without merit.
Collateral review pursuant to § 2255 is not a substitute for direct appeal; therefore, unlike a direct appeal, the grounds upon which a habeas petition may collaterally attack a final judgment are "extremely limited." United States v. Marsh, 548 F.Supp.2d 1295, 1300 (N.D. Fla. 2008). Section 2255 sets forth four grounds for relief: [1] "the sentence was imposed in violation of the Constitution or laws of the United States;" [2] "the court was without jurisdiction to impose such sentence;" [3] "the sentence was in excess of the maximum authorized by law," or [4] the sentence "is otherwise subject to collateral attack." 28 U.S.C.. § 2255(a); see also Hill v. United States, 368 U.S. 424, 426-27 (1962).
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004)(footnote omitted). "To adequately preserve a claim [for collateral review], a movant must raise it both before the trial court (whether by motion, objection, or otherwise) and also on direct appeal." Isacson v. United States, No. 1:12-CR-40, 2013 WL 6097231, *7 (N.D. Ga. Nov. 19, 2013)(citing, inter alia, Murray v. Carrier, 477 U.S. 478, 490-92 (1986)). Except in limited circumstances not at issue here,
"[A] defendant generally must advance an
"If the claim was raised and rejected on direct review, the habeas court will not readjudicate it absent countervailing equitable considerations; if the claim was not raised, it is procedurally defaulted and the habeas court will not adjudicate it absent countervailing equitable considerations (e.g., actual innocence or cause and prejudice . . .)." Withrow v. Williams, 507 U.S. 680, 721 (1993)(Scalia, J., concurring in part and dissenting in part)(citing United States v. Frady, 456 U.S. 152 (1982))(internal citation omitted).
Lynn 365 F.3d at 1235 (internal citations and quotations omitted; emphasis in original). Petitioner bears the burden of demonstrating cause-and-prejudice and/or actual-innocence exceptions to the procedural bar. Sullivan v. Wainwright, 695 F.2d 1306, 1310 (11th Cir. 1983); see also Hill v. United States, 569 Fed. Appx. 646, 648 (11th Cir. 2014).
Under the cause-and-prejudice exception, a § 2255 movant can avoid application of the procedural default bar by "show[ing] cause for not raising the claim of error on direct appeal and actual prejudice from the alleged error." Lynn, 365 F.3d at 1235 (emphasis in original). "[T]o show cause for procedural default, [the petitioner] must show that some objective factor external to the defense prevented [him] from raising his claims on direct appeal and that this factor cannot be fairly attributable to [his] own conduct." Id. at 1235 (footnote and citation omitted). "To establish `prejudice,' a petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different." Henderson v. Campbell, 353 F.3d 880, 892 (11th Cir. 2003)(quoting Wright v. Hopper, 169 F.3d 695, 703 (11th Cir. 1999)).
In addition to the cause-and-prejudice exception, the Supreme Court has "recognized a narrow exception to the general rule [barring consideration of procedurally-defaulted claims] when the habeas applicant can demonstrate that the alleged constitutional error has resulted in the conviction of one who is actually innocent of the underlying offense." Dretke v. Haley, 541 U.S. 386, 388 (2004). "To show actual innocence of the crime of conviction, a movant `must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt' in light of the new evidence of innocence." McKay v. United States, 657 F.3d 1190, 1197 (11th Cir. 2011)(quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). "To be credible, such a claim [of actual innocence] requires petitioner to support his allegations of constitutional error with
For the reasons set forth below, the court finds Denton's remaining claims are procedurally barred.
In his response to the court's Show Cause Order, Denton argues:
(Doc. 53 at 6-7.)
As set forth above, an exception to the procedural bar based on the miscarriage-of-justice exception requires a showing of actual innocence of the crime of conviction. "To show actual innocence of the crime of conviction, a movant `must show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt' in light of the new evidence of innocence." McKay, 657 F.3d at 1196 (quoting Schlup, 513 U.S. at 327). The Supreme Court held, "[E]xperience has taught us that a substantial claim that constitutional error has caused the conviction of an innocent person is extremely rare. To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Schlup, 513 U.S. at 324.
In support of his Motion to Vacate, Denton argues that the sworn interrogatory answers of Hollie Todd and Jonathon Todd, filed May 10, 2012, (see crim. doc. 370), constitute newly discovered evidence, (see, e.g., doc. 30-1 at 28, 94, 96). For reasons previously stated, the court has found the affidavits of Hollie and Jonathon Todd are not credible. See United States v. Denton, No. 3:11-CR-054-SLB, 2015 WL 854391, *7, 9 (N.D. Ala. Feb. 27, 2015), aff'd 697 Fed. Appx. 963 (11th Cir. 2017). With regard to Jonathon Todd, this court held:
Id. at *7 (footnote omitted). With regard to Hollie Todd, the court held:
Id. at *9 (footnote omitted).
The court's findings with regard to the credibility of the post-judgment testimony of Hollie and Jonathon Todd were affirmed by the Eleventh Circuit, Denton, 697 Fed. Appx. at 966-67, and will not be revisited.
Denton also contends that he has "newly discovered evidence" that "stand by counsel acted as a spy in Denton's camp," (doc. 53 at 1-2); and that the surveillance video of the bank robbery does not show "true movement" because it consists of a series of still photographs,
Assuming this "evidence" qualifies as reliable and "newly discovered," Denton has not persuaded the court that, considering all the evidence — the "new" evidence and the evidence presented at trial, "no juror, acting reasonably, would have voted to find him guilty beyond a reasonable doubt." See Schlup, 513 U.S., at 329. "[T]he District Court must assess the probative force of the newly presented evidence in connection with the evidence of guilt adduced at trial," and "the court may consider how the timing of the submission and the likely credibility of the affiants bear on the probable reliability of that evidence." Id. at 331-32. "Based on this total record, the court must make a probabilistic determination about what reasonable, properly instructed jurors would do. The court's function is not to make an independent factual determination about what likely occurred, but rather to assess the likely impact of the evidence on reasonable jurors." House v. Bell, 547 U.S. 518, 538 (2006)(quoting Schlup, 513 U.S. at 329)(internal citation and quotations omitted). The evidence regarding the video of the bank robbery, standby counsel's heads-up to Stokes, and cancellation of Denton's subpoenas (discussed further below), when considered in light of evidence presented at trial, is sufficient to support a reasonable jury finding Denton guilty of armed bank robbery and of using a firearm during a crime of violence. Certainly, the evidence is such that the court cannot find that no juror would have found Denton guilty had he or she known that the bank video was a combination of still photographs, that stand-by counsel had given Stokes a heads-up about Denton's intention to question him regarding inconsistent statements, and/or that Denton's subpoenas were cancelled.
For these reasons, the court finds that Denton has not shown that he is actually innocent of the crimes of conviction sufficient to excuse his procedural default of the claims, as set forth below, raised in his Motion to Vacate.
Denton contends that "[t]he government's attorney exceeded her authority in this case when she presented this case to a second grand-jury panel [without seeking permission from U.S. Attorney General] when a previous panel [had] failed to indict Denton." (Doc. 30-1 at 39.) Denton was aware of the fact that he had been indicted by the second grand jury to consider his crimes prior to the end of his trial. See Appellant's Initial Brief, Denton v. United States, Case Nos. 15-11152-DD, 15-13674-DD, 2016 WL 3475361 at 23 (11th Cir. June 20, 2016)(Denton argued, "In fact this misconduct started all the way back to the grand jury proceedings, first the government attempted to get an indictment on Mr. Denton by presenting [its] key witness[,] James Wimberly, but the grand jury was not buying it . . . . [T]he government went back to the grand jury and mis-represented material facts . . . ."); crim. doc. 352 at 121 (Denton stated in open court that he had James Wimberly's grand jury testimony; Wimberly did not testify before the second grand jury). This claim was available at the time of Denton's first appeal and, therefore, it is procedurally defaulted. Denton has not demonstrated cause for the default. The court finds that the claim is due to be dismissed.
In the alternative, the court notes that Denton has not alleged a violation of a constitutional right or a violation of a law of the United States caused by the presentment of the charges to a second grand jury without prior authorization from the Attorney General. Citing Moore's Federal Practice, Denton alleges, "The standard policy of the Justice Department requires a prosecutor to seek permission from Washington, D.C.[,] prior to presenting a crime to a second grand-jury when the previous grand-jury had failed to indict the defendant." (Doc. 30-1 at 39 [citing "Vol. 24, Moore's Federal. Practice, section 606.02[2][b][iv]"].) In this treatise, the authors cite to the Manual for United States Attorneys. See 24 Moore's Federal Practice § 606.02[2][b][iv] n. 74. However, the Manual is
Thus, if this claim is not procedurally barred, it would be denied as without merit.
Denton alleges that the prosecutor presented "false material facts" to the grand jury and that this requires reversal of his conviction. (Doc. 30-1 at 40.) Specifically, he contends that Special Agent Stokes testified falsely before the grand jury with regard to the following facts:
Prior to his direct appeal, Denton obtained Stokes's grand jury testimony. On appeal he argued that the Government had a duty to disclose Stokes's grand jury testimony as Jencks Act
After his direct appeal was filed, Denton filed a Motion for New Trial based, in part, on affidavits from Hollie and Jonathon Todd contradicting their trial testimony. These affidavits form the basis of a number of the allegations of perjury regarding Stokes's grand jury testimony.
Denton, 2015 WL 854391 at *11.
Denton appealed and, on appeal, he argued:
Appellant's Brief, Denton v. United States, Nos. 15-11152-DD, 15-13674-DD, 2016 WL 3475361, *5-6 (11th Cir. June 20, 2016). The Eleventh Circuit affirmed this court's denial of Denton's Motion for New Trial based on these statements. Denton, 697 Fed. Appx. 963, 967-68 and n.3.
"[A]n issue `[p]resented is presented.'" Stoufflet v. United States, 757 F.3d 1236, 1242 (11th Cir. 2014)(quoting White v. United States, 371 F.3d 900, 902-03 (7th Cir. 2004)). The issues concerning false testimony before the grand jury were presented to and rejected by the Eleventh Circuit. Therefore, the court finds that this claim is procedurally barred and will be denied.
Assuming that such claims are not procedurally barred, the court finds that the claim is without merit for the reasons set forth in its earlier opinion. See Denton, 2015 WL 854391 at *11.
In his Motion to Vacate, Denton contends that he "was denied his Constitutional right to due process and equal protection of the law along with a fundamentally fair trial[, as well as] his Constitutional right to self representation[,] when the court withheld the [readily] available law books Denton requested under the flag of expense." (Doc. 30-1 at 46.) This issue was raised and rejected by the Eleventh Circuit on direct appeal. See United States v. Denton, 535 Fed. Appx 832, 834-35 (11th Cir. 2013). Therefore, this claim for relief is procedurally barred and will not be reconsidered. Denton cannot show cause and prejudice, and he has not shown that he is actually innocent of the crimes of conviction. Therefore, Denton's claims based on the alleged denial of access to legal materials will be denied.
Assuming this claim is not procedurally barred, the court finds that it is without merit.
During the Faretta hearing, the Magistrate Judge informed Denton: "When you represent yourself, you are going to be in a local county jail. The access to legal materials is much, much more limited than it would be for Mr. Steen [standby counsel], who can just come to the law library here, which you can't do. He can go to his own library in his office and he can go to the county library. He has opportunities you don't. You limit yourself in that regard." (Crim. doc. 41 at 31.) Denton told the Magistrate that he understood this limitation, but that he still wanted to represent himself. Thereafter, this court was informed that Denton was coming to the U.S. Marshal's lock-up every day. This court held that Denton could request materials, but that he would not be brought to the Marshal's lock-up everyday for purposes of conducting legal research. (Doc. 172 at 292-98.) Relying on Smith v. Hutchins, 426 Fed. Appx. 785, 788 (11th Cir. 2011), the court stated:
(Crim. doc. 172 at 296-98.)
On appeal, the Eleventh Circuit affirmed the court, holding:
We have held that a pro se criminal defendant has no constitutional right of access to a law library or legal materials where counsel has been offered. Edwards v. United States, 795 F.2d 958, 961 nn.1 & 3 (11th Cir. 1986) (rejecting a collateral challenge to a criminal conviction based on the denial of library access while the petitioner proceeded pro se at trial, and concluding that "[w]hen counsel is offered, the alternative of a library is not mandatory"). Although Denton takes issue with the soundness and adequacy of our decision in Edwards, we are bound by that decision under the prior panel precedent rule unless and until it is overruled by the Supreme Court or this Court sitting en banc.. . . Even assuming that a Faretta defendant has a right of reasonable access to legal materials, as Denton argues, under the circumstances of this case that right was not violated. There is no merit to Denton's contention that the district court imposed unjustified and extreme restrictions on his ability to access legal materials relevant to the criminal proceedings against him.
Denton, 535 Fed. Appx. at 835.
For these reasons, even if the claim was not procedurally barred, the court would dismiss this claim as without merit.
Denton argues that he "was denied his Constitutional right to a fundamentally fair trial and to represent himself by the actions of [Russell] Steen," his standby counsel. (Doc. 30-1 at 67.) Specifically he contends that Steen "violated [his] confidence" and undermined his right to "cross-examine"
Denton alleges that he heard Steen tell Stokes that Denton was going to question him regarding inconsistencies in his grand jury testimony.
The fact that this incident "occurred outside the record" does not make Denton's assertion "new evidence." The reason this claim was "outside the record" is because Denton failed to object or otherwise preserve this issue for review on appeal by raising the issue before the trial court contemporaneously with his observation of Steen giving Stokes a heads-up prior to Denton calling Stokes as a witness.
Denton has not shown cause and prejudice or that he is actually innocent of the crimes of conviction. Therefore, his claim based on Steen giving Stokes a heads-up before Denton called Stokes to the stand will be denied.
Even if this claim was not procedurally barred, it would be due to be dismissed as Denton has not alleged — and, as a matter of law, he cannot show — that he suffered actual prejudice as a result of Steen telling Stokes that Denton intended to question him about his grand jury testimony. Any "heads-up" occurred shortly before Stokes took the stand, and the fact that Denton intended to question Stokes about alleged inconsistencies in his grand jury testimony was not a surprise to Stokes or anyone else involved in this trial. Even assuming Steen told Stokes that Denton planned to question him about his grand jury testimony, such a revelation did not cause prejudice to Denton.
Denton contends that Steen cancelled his witness subpoenas, particularly the subpoena for Christine Sutton, his landlord. (Doc. 30-1 at 68-69; doc. 53 at 10-11.) He alleges, "[A]lthough Denton confronted Russell Steen in the presence of Honorable [M]agistrate Judge John E Ott concerning this undermining of his defense, the record of this violation is not fully developed, thus [was] not ripe for appellate review." (Doc. 53 at 10-11.) Again, this issue was not "ripe" because Denton did not object at trial or otherwise preserve this issue for review. See Askew, 2014 WL 1233686 at *6.
Denton raised this issue in his Motion for New Trial, which the court denied. (Crim. doc. 242 at 2; crim. doc. 304 at 3 [available at United States v. Denton, No. 3:11-CR-0054-SLB, 2012 WL 12894171, *1 (N.D. Ala. Jan. 24, 2012)].) The court held: "The number of subpoenas that the court would allow to be served and the witnesses that the court would allow at trial were all discussed on the record with defendant both before and during the trial. The defendant wished to call a number of witnesses who the court determined could not provide relevant evidence. Defendant's Motion for a New Trial based on this argument is without merit." Denton, 2012 WL 12894171 at *1. This issue was available to Denton on direct appeal. Therefore, he is barred from raising it herein.
Denton has not shown that any external factor prevented him from raising this issue on appeal. He was aware prior to presenting his defense at trial that his landlady, Mrs. Sutton, had not appeared for trial. He has not shown that this fact was concealed from him and/or that he could not discover facts sufficient to argue the issue on appeal. Also, Denton has not presented any new, credible evidence that he is innocent of the crimes of conviction. Therefore, this claim is due to be denied as procedurally barred.
Even assuming no bar, the court finds that the record contains insufficient allegations that some or all of Denton's subpoenas were actually cancelled by Steen and/or that Denton suffered any prejudice based on the failure of these witnesses to be available. At trial, prior to the Government resting, the following occurred:
(Crim. doc. 352 at 4-5 [emphasis added].) The following day, after the Government rested, Denton informed the court that he did not wish to call
(Crim. doc. 353 at 39-41, 48 [emphasis added].) Denton cannot show any prejudice caused by his standby counsel's cancelling the subpoenas for witnesses that Denton did not call to testify.
Therefore, assuming that this issue is not procedurally barred, it is due to dismissed as without merit.
Denton complains that he was deprived of access to discovery material shortly before trial because standby counsel was on vacation and did not return until the day the trial began. (Doc. 30-1 at 69-70.) According to Denton —
(Id. at 70; see also crim. doc. 248 at 4 [In his Motion for Court to Take Judicial Notice of Facts Herein and Make Part of the Record, Denton alleged, "Standby Counsel in this matter went on vacation . . . during the time the Government placed critical evidence into the discovery file and refused defense access."].) Denton alleges that "by refusing or neglecting to provide Denton with access to the discovery material to prepare for trial[,] Steen underminded [sic] Denton's Constitutional right to a fundamentally fair trial and self-representation." (Doc. 30-1 at 70-71.)
This matter was discussed on the record prior to and during Denton's trial, after trial and before sentencing, and at sentencing. It could have been raised on appeal. Therefore, this issue is procedurally barred and will be dismissed.
Denton has not alleged any cause for his failure to raise this issue on appeal and he has not shown that he is actually innocent of the crimes of conviction. Therefore, this claim will be denied.
Assuming this claim is not procedurally barred, the court finds that it is without merit. "When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel." Faretta, 422 U.S. at 835. The Supreme Court has not clearly established a pro se defendant's constitutional right to the effective assistance of standby counsel,
Therefore, the court finds that this claim and Denton's other claims complaining of actions by his standby counsel are due to be dismissed.
Denton alleges that he "was denied his constitutional right to due process of law and his constitutional right to represent himself when the government agents interfered with and corruptly influenced potential defense witnesses." (Doc. 30-1 at 71.) Specifically, he contends he "has new evidence that upon learning of Denton's intended defense witnesses. . . agents of the government contacted the witnesses and instructed them to not have any communication with Denton." (Id. at 71-72.) His "new evidence" consists of the sworn statements of Hollie and Jonathon Todd, which were filed with this court in May 2012, (see id. at 74-75 [citing exhibit G, doc. 3-1 at 72-78; exhibit K, doc. 3-2 at 20-23]),
Denton's claims about being denied access to Jonathon and Hollie Todd were raised and rejected by this court in its denial of his Motion for New Trial. See Denton, 2015 WL 854391 at *7, 9 and n.8. The Eleventh Circuit affirmed:
Denton, 697 Fed. Appx. 963, 966-67 (11th Cir. 2017).
Because this claim was rejected by the Eleventh Circuit, it is procedurally barred and will not be reconsidered herein. See Vernell, 559 F.2d at 964. Denton's claim that his "Constitutional right to due process of law and his right to self representation [were] denied by government agents interfering with his right to call witnesses on his behalf," will be denied.
Denton alleges:
(Doc. 30-1 at 79.) Specifically, Denton contends that Burrell "encouraged" or failed to corrected Stokes's false and/or misleading testimony before the grand jury, (id. at 80-82); she concealed exculpatory evidence by withholding [an eyewitness's] name during the suppression hearing, (id. at 83); she informed the court that Denton's "witnesses wanted nothing to do with him" and this caused the court to "decline[ ] to get involved" with helping Denton interview witnesses, (id. at 83); she falsely asserted that evidence would show that Denton fired a shot at Wimberly from a handgun matching the handgun used during the bank robbery, (id. at 84); she fraudulently represented that the Government did not "solicit" from Jamie Todd letters in his possession that were written to him by Denton, (id. at 85); and she fraudulently represented that Jonathon Todd had been able to identify Denton as the bank robber by the way the bank robber walked in the surveillance video; (id. at 85-86).
These incidents of alleged fraud are procedurally barred. Each incident has been rejected by this court, rejected by the Eleventh Circuit, rejected by both this court and the Eleventh Circuit, and/or could have been raised on appeal. See Denton, 697 Fed. Appx. 966 (Jamie Todd's request to speak with Denton doubtful evidence of interference and not newly discovered evidence); id. at 966-67 (Hollie and Jonathon Todd's post-judgment statements of government interference are not credible); id. at 967-68 (noting Jonathon Todd's trial testimony — "that the man in the bank security video walked like Denton — was consistent with the court's own observations"); Denton, 535 Fed. Appx. 837 (Stokes's grand jury testimony was not inconsistent with trial testimony); Denton, 2015 WL 854391 at *7 (Jonathon Todd testified that the man in the surveillance video walked like Denton, a fact demonstrated by comparing Denton's gait with the video); id. (Hollie Todd identified the gun in the surveillance video as Denton's gun); id. at *10 ("Denton was allowed to talk to his sons, his daughter-in-law, and his girlfriend, but, except for Jamie Todd, none of these individuals was willing to talk with him."); id. at *11 (Stokes did not testify that Hollie identified the gun in the surveillance video as Denton's gun); id, *11 and n.9 (Stokes did not testify falsely before the grand jury and his testimony that Denton alleges was false was not material or prejudicial); id. at *12 (eyewitness's identifiers not material or exculpatory); id. at *14 (fact that Government asked to see and to copy the letter from Denton to Jamie Todd not material or prejudicial). Nevertheless, Denton contends that these claims are not procedurally barred because his "claim that the prosecutor relied on fraud to prevail in critical evidentiary issue[s] cannot be properly consider[ed] without a fully developed record of what occurred outside the trial record. Only then will Denton be able to establish his claims and[,] once established[,] he is entitled to relief." (Doc. 53 at 12.) He also claims that "to procedurally bar Denton on this claim would result in a miscarriage of Justice[,] i.e., Justice imposed without accommodating the defendant's constitutional right to due process of law." (Id.)
These claims of prosecutor misconduct are procedurally barred. Each has been raised and considered by the court and on appeal, or it could have been raised on appeal. The court will not reconsider its earlier dismissal of these claims, which are without merit.
Therefore, Denton's claims of fraud on the court will be dismissed.
Denton argues that this court lacked jurisdiction to sentence him under § 924(c) because "in light of the subsequent ruling by the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015) and United States v. Mathis, 136 S.Ct. 2243, 2249 (2016), a crime under 18 U.S.C. § 2113(a) and (d) will not support a § 924(c) Count because it categorically fails as a crime of violence." (Doc. 30-1 at 134.) This claim could have been raised on appeal; therefore, it is procedurally barred.
Also, the court finds that this claim is without legal merit based on binding Eleventh Circuit precedent, which holds that armed bank robbery is a crime of violence for purposes of § 924(c)(3)(A). In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016)(holding an armed bank robbery under § 2113(a) and (d) qualifies as a crime of violence under § 924(c)(3)(A)); see In re Hunt, 835 F.3d 1277, 1277 (11th Cir. 2016); Rice v. United States, No. 1:08-CR-0334-SLB-HGD, 2017 WL 345533, *4-5 (N.D. Ala. Jan. 24, 2017)(Blackburn, J.). Moreover, the Eleventh Circuit has held that, unlike the Armed Career Criminal Act at issue in Johnson, the "substantial risk" clause of § 924(c)(3)(B) "is interpreted to embody a conduct-based approach" to which "no constitutional vagueness inheres." Ovalles v. United States, 905 F.3d 1231, 1252 (11th Cir. 2018)(quoting United States v. Barrett, 903 F.3d 166, 178 (2d Cir. 2018))(en banc); see also Exposito v. United States, No. 17-12283, 2019 WL 1125698, at *1-2 (11th Cir. Mar. 12, 2019)(unpublished).
Therefore, Johnson and Mathis provide no grounds for challenging a conviction pursuant to § 924(c) for using/carrying firearm during a crime of violence when the crime of violence is armed bank robbery. Denton's claim that he is actually innocent of his § 924(c) conviction is barred and will be dismissed.
Denton argues that, "when the court imposed the sentence for the bank robbery conviction it committed a plain error which effected Denton's constitutional rights because the Court failed to take into consideration the consecutive sentence for the § 924(c) Count when considering the factors articulated by Congress pursuant to 18 U.S.C. § 3553(a)." (Doc. 30-1 at 145-46.) This claim could have been raised on appeal; therefore, it is procedurally barred. He has not demonstrated cause and prejudice or actual innocence; therefore, this claim will be dismissed.
Also, the court finds Denton's contention, that this court did not consider the length of his total custodial sentence, is simply incorrect. The court explicitly considered Denton's total sentence, bank robbery plus consecutive firearm, in determining the appropriate sentence. (Crim. doc. 354 at 58-62.) In fact, as stated repeatedly during the sentencing hearing, the court seriously considered imposing an upward variance based on all the sentencing factors in § 3553. (See id. at 58 ["Mr. Denton, I thought seriously and long about varying upwards from the Guideline range, because I have a very serious concern that this is not a long enough sentence for you."]; id. at 61-62 [court did not vary upward to give Denton "one less issue to be arguing on appeal"].)
Unlike the district court in Dean v. United States, 137 S.Ct. 1170 (2017), cited by Denton, (see doc. 30-1 at 146, 152), this court never stated that it was without authority to consider the sentence imposed on the bank robbery count and the sentence imposed for gun count together or that it was without authority to reduce the bank robbery sentence in light of the mandatory § 924(c), consecutive sentence. In Dean, the Supreme Court noted:
Dean, 137 S.Ct. 1170, 1175 (2017)(emphasis added). The Supreme Court reversed and remanded for resentencing, holding that "Nothing in [§ 924(c)] prevents a sentencing court from considering a mandatory minimum under § 924(c) when calculating an appropriate sentence for the predicate offense." Id. at 1178.
This court considered the mandatory-minimum sentence when it calculated Denton's sentence on the predicate offense — armed bank robbery. Any reason Denton had for believing that this court was unaware it could reduce his sentence for armed bank robbery in light of the minimum mandatory sentence on the gun charge could have been raised on appeal. Therefore, this claim is procedurally barred and will be dismissed.
For the last several years, Denton has filed, and refiled, numerous motions and other documents challenging every aspect of his trial, conviction, and sentence. Now, at least in this court, he has reached the end. Based on the foregoing, the Renewed and Amended Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2255, (doc. 30; crim. doc. 425), is due to be denied. An Order denying Denton's Petition and dismissing this case will be entered contemporaneously with this Memorandum Opinion.
Rule 11 of the Rules Governing § 2255 Proceedings, provides, "The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." The applicant for § 2255 relief "cannot take an appeal unless a circuit justice or a circuit or district judge issues a certificate of appealability under 28 U.S.C. § 2253(c)." Fed. R. App. P. 22(b)(1). And, the "certificate of appealability may issue . . .
Denton is not entitled to habeas relief; reasonable jurists could not disagree. He has not demonstrated that the issues he raises are reasonably debatable and/or deserve encouragement to proceed further. Therefore, issuance of a certificate of appealability is not warranted in this case and will not be issued by this court.
United States v. Denton, 535 Fed. Appx. 832, 837-38 (11th Cir. 2013).
Dixon v. United States, 588 Fed. Appx. 918, 921 (11th Cir. 2014).
However, all video is created by combining frames, or still photographs, in sequence to create the appearance of motion. "Most video is shot in 24 to 30 frames per second or FPS." Technical Terms: Frame Definition,
(Crim. doc. 354 at 6-7.)
16 U.S.C. § 3500(a)-(b).
(Doc. 32-1 ¶¶ 23-24.)
Wainwright v. Sykes, 433 U.S. 72, 90 (1977).
18 U.S.C. § 924(c)(3).
Exposito first contends that the Supreme Court's decision in Johnson — which struck down, as unconstitutionally vague, the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii) — also invalidated the "residual clause" in section 924(c)(3)(B). This argument, however, is foreclosed by this Court's binding precedent. See Ovalles v. United States, 905 F.3d 1231, 1253 (11th Cir. 2018)(en banc).
Applying the conduct-based approach adopted by this Court in Ovalles, Exposito's armed bank robbery conviction qualifies as a crime of violence under section 924(c)(3)(B). The undisputed facts — as set forth in the government's factual proffer — demonstrate that, during the bank robbery, Exposito carried a gun which he pointed at bank employees. Exposito and his codefendant restrained the bank employees, stole over $170,000, and then demanded that a bank employee give them keys to a car. Exposito and his codefendant used the car to drive a short distance, where they boarded forcibly a boat and forced at gun point the boat's owner to transport them from Key Largo to Miami. In the light of Exposito's actual offense conduct, Exposito's underlying conviction for armed bank robbery involved a substantial risk of physical force and, thus, qualifies as a crime of violence under section 924(c)(3)(B). See Ovalles, 905 F.3d at 1252-53 (concluding that defendant's conviction for attempted carjacking constituted a "crime of violence" under section 924(c)(3)(B) because the undisputed "real-life details" of the crime demonstrated that defendant's conduct "posed a very real `risk' that physical force `may' be used.").
Moreover, this Court has already concluded that a conviction for armed bank robbery constitutes a "crime of violence" under the "use-of-force clause" in section 924(c)(3)(A). See In re Hines, 824 F.3d 1334, 1337 (11th Cir. 2016) (denying an application for leave to file a second or successive section 2255 motion); In re Hunt, 835 F.3d 1277, 1277 (same); see also In re Sams, 830 F.3d 1234, 1239 (11th Cir. 2016)(concluding that a conviction for bank robbery alone — pursuant to 18 U.S.C. § 2113(a) — qualifies as a crime of violence under section 924(c)(3)(A)). We are bound by that precedent. See In re Lambrix, 776 F.3d 789, 794 (11th Cir. 2015) (explaining that "our prior-panel-precedent rule applies with equal force as to prior panel decisions published in the context of applications to file second or successive petitions."); United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (under this Court's prior-panel-precedent rule, "a prior panel's holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.").
Exposito, 2019 WL 1125698 at *1-2.
