DANNY C. REEVES, District Judge.
Defendant Tony Ginter plead guilty to being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). [Record No. 63] He was sentenced to a term of imprisonment of 159 months, followed by five years of supervised release. [Record No. 95] Ginter waived his right to collaterally attack his plea, conviction, and sentence, except for claims of ineffective assistance of counsel. [Record No. 93, p. 4]
Thereafter, Ginter filed a motion to vacate his sentence under 28 U.S.C. § 2255 claiming that, according to Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), his sentence under the Armed Career Criminal Act ("ACCA") is unconstitutional. [Record No. 97] While Ginter did not allege ineffective assistance of counsel in his motion or in his reply, he submitted a supplemental filing that predicated ineffective assistance on his counsel's alleged failure to advise him regarding the ACCA's application to his prior conviction of robbery under Ohio law. [Record No. 108, p. 3] Because the United States did not invoke Ginter's waiver of collateral relief, the Court has analyzed the merits of the motion to vacate.
Consistent with local practice, Ginter's motion was referred to a United States Magistrate Judge for review and issuance of a report pursuant to 28 U.S.C. § 636(b)(1)(B). After reviewing the government's response [Record No. 103] and Ginter's reply brief [Record No. 107], United States Magistrate Judge Robert E. Wier issued a report, recommending that Ginter's motion for habeas relief be denied and that no Certificate of Appealability be issued. [Record No. 113] Ginter filed objections to the magistrate judge's recommended disposition. [Record No. 114] The undersigned has conducted a de novo review of the portions of the report to which Ginter objects. Based on the Court's full review, the magistrate judge's recommendations will be adopted and Ginter's motion will be denied.
In seeking relief under 28 U.S.C. § 2255(a), a defendant may assert that: the sentence was imposed in violation of the United States Constitution or federal law; the court lacked jurisdiction; his or her sentence exceeded the maximum penalty authorized by law; or the sentence is otherwise subject to collateral attack. To prevail on a claim of constitutional error, a defendant must establish an error of magnitude that had a substantial and injurious effect or impact on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Conversely, to prevail on a claim of non-constitutional error, the defendant must show a "`fundamental defect which inherently results in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due process." Id. (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)) (internal quotation marks omitted).
A district court must make a de novo determination of those portions of a magistrate judge's recommendation to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, "[i]t does not appear that Congress intended to require district court review of a magistrate's factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150 (1985).
Ginter claims that, following the Supreme Court's holding in Johnson v. United States, 135 S.Ct. 2551 (2015), he no longer qualifies a sentencing enhancement under the ACCA. [Record No. 97, p. 1] Under the act, a person who violates 18 U.S.C. § 922(g)(1) and has three previous convictions for a violent felony or a serious drug offense is subject to a fifteen-year mandatory minimum sentence.
18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion of the statute is known as the "residual clause." In Johnson, the Supreme Court held that the residual clause is unconstitutionally vague. 135 S. Ct. at 2557. However, the other clauses remain intact. Id. at 2563.
Here, the defendant had at least three prior convictions qualifying him for the sentencing enhancement in the ACCA. He contends that two of the convictions
Under 18 U.S.C. § 924(e)(2)(B)(ii), Kentucky third degree burglary qualifies as an ACCA predicate if its "statutory definition substantially corresponds to `generic' burglary, or the charging paper and jury instructions actually required the jury to find all the elements of generic burglary in order to convict the defendant." Taylor v. United States, 495 U.S. 575, 602 (1990). The first approach is characterized as the "categorical approach," id. at 576, whereas the second is characterized as the "modified categorical approach." Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). The latter approach only applies where a statute is "divisible." Id. In Ginter's case, the Kentucky burglary statute must describe some crimes that correspond to "generic burglary," and some that do not, to be divisible.
Under the modified categorical approach, the Court may review "terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or [] some comparable judicial record of this information." Shepard v. United States, 544 U.S. 13, 26 (2005) (prohibiting use of police reports to determine whether defendant's Massachusetts burglary conviction qualified as generic burglary under the ACCA). Ultimately, the Court must determine the version of the crime to which the defendant pleaded guilty. See Shepard, 544 U.S. at 21 (discussing whether "the plea had `necessarily' rested on the fact identifying the burglary as generic") (quoting Taylor, 495 U.S. at 602).
Generic burglary's basic elements consist of "unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime." Taylor, 495 U.S. at 599. The terms "building" and "structure" have their ordinary meanings. See id. Under the version of the Kentucky statute of which Ginter was convicted, "[a] person [wa]s guilty of burglary in the third degree when, with the intent to commit a crime, he knowingly enter[ed] or remain[ed] unlawfully in a building." Ky. Rev. Stat. § 511.040(1) (effective July 15, 1980). A building included "any structure, vehicle, watercraft or aircraft: (a) [w]here any person lives; or (b) [w]here people assemble for purposes of business, government, education, religion, entertainment or public transportation." Ky. Rev. Stat. § 511.010(1) (effective July 15, 1980).
Under the categorical approach, Kentucky third degree burglary does not qualify as generic burglary under the ACCA because of its expansive definition of the term "building." Brumback, 614 F. App'x at 292. And because the Kentucky statute describes burglary of ordinary buildings and other, non-ACCA qualifying structures, it is divisible.
The magistrate judge properly looked to the Kentucky indictment and the defendant's factual basis, as reflected in the state court's final judgment, in determining that Ginter's third degree burglary conviction constituted "generic burglary" under the ACCA. See Shepard, 544 U.S. at 26. [See Record No. 113, pp. 11-12.] For example, the indictment charged Ginter with "unlawfully entering a building owned by Wayne West with the intent to commit a crime[.]" [Record No. 105, p. 1] Because the term "building" in the indictment is ambiguous, the magistrate judge turned to the state court final judgment, which stated that:
[Id., p. 2] The pre-sentence report contained Ginter's version of the events surrounding the burglary. He claimed that he "went into a house on Clintonville Road, it was Wayne West's house. I took tools and a lot of stuff and loaded it in a truck I borrowed. I turned myself in 3 or 4 days later."
In his objections, Ginter argues that the magistrate judge was not permitted to review pre-sentence report material in making his determination. [Record No. 114, pp. 2-3] First, the defendant cites Descamps, 133 S. Ct. at 2286, to support his position. [Id., p. 2] However, Descamps did not involve a divisible statute and was not employing the modified categorical approach. Id. at 2285. Therefore, the fact that the defendant's admissions were "irrelevant" under the categorical approach in Descamps has nothing to do with Ginter's admissions in the present case. Id. at 2286. To the extent that Ginter claims that the Kentucky burglary statute is indivisible because it is overbroad [see Record No. 97, p. 6], Descamps clearly demonstrated that "overbreadth" regarding the definition of a "building" in a burglary statute renders that statute divisible. Id. at 2281.
Next, Ginter argues that United States v. Wynn, 579 F.3d 567 (6th Cir. 2009), and similar cases hold that pre-sentence reports are not Shepard material. [Record No. 114, pp. 7-8] In Wynn, the court held that factual recitations in a federal presentence investigation report ("PSR") were not Shepard material, even if the defendant did not object to the recitations. Id. at 576-77 (citing United States v. Bartee, 529 F.3d 357 (6th Cir. 2008) (dealing with federal PSR)). Specifically, the court reasoned that, "a PSR prepared for a federal district-court sentencing can never be a record of a convicting state court." Id. at 577; United States v. Ferguson, 681 F.3d 826, 832 (6th Cir. 2012) (dealing with federal PSR). In other words, the state court's judgment in Bartee, Wynn, and Ferguson did not "necessarily" rest on the facts contained in the subsequently-created federal PSR. See Shepard, 544 U.S. at 21; see also United States v. Anglin, 601 F.3d 523, 529 (6th Cir. 2010).
In United States v. Gardner, the court found the reasoning in Wynn applicable to state PSRs, as well. 649 F.3d 437, 445 (6th Cir. 2011). However, the court in that case did not categorically exclude all statements contained in PSRs. Instead, the court stated that, "for the VA PSR to be considered under Shepard, it must be an `explicit factual finding by the trial judge to which the defendant assented.'" Id. (quoting Shepard, 544 U.S. at 16). The problem in Gardner was that "there were too many apparent contradictions and inconsistencies between the Virginia PSR and the judicial order to establish that the documents submitted were ones to which Gardner assented." Id. at 446. Additionally, the state judicial order allegedly incorporating the PSR at issue also included references to "additional facts" presented by the defendant at a hearing subsequent to the drafting of the PSR. Id. Thus, the district court could not determine whether the facts contained in the state PSR were actually admitted by the defendant as part of his guilty plea.
The present action is distinguishable from Gardner. In Gardner, there was uncertainty regarding whether the PSR at issue was, in fact, the PSR referenced in the judicial order. Id. at 445. Here, Ginter has made no allegation that the state court final judgment referenced a different pre-sentence report. Further, in Gardner, the "validity" of the PSR was "questionable" because it was inconsistent with the judicial order, id. at 446,
Moreover, Ginter's circumstances are more appropriately considered under the reasoning of United States v. Kappell, 418 F.3d 550, 559-560 (6th Cir. 2005). In Kappell, the court held that the factual basis contained in a state criminal complaint constituted Shepard material because it was accepted by the defendant in the transcript of the plea proceedings. Id. at 560; see also United States v. Amos, 496 F. App'x 517, 522-23 (6th Cir. 2012) (probable cause affidavit constituted Shepard material where defendant stipulated to it at his state sentencing). The ultimate question is whether the state court's judgment "necessarily" rested on the fact identifying the offense as generic. Taylor, 495 U.S. at 602. Here, the state trial court needed the defendant's statement and the facts in the pre-sentence report to determine whether Ginter had burglarized something that qualified as a "building" or "structure" under the Kentucky statute. Even though the terms in the statute extended beyond the words' ordinary meanings, the statute was not without limit. See Ky. Rev. Stat. § 511.010(1) (effective July 15, 1980). Therefore, the state court final judgment necessarily rested on the determination that Ginter took tools from "Wayne West's house."
While an entire pre-sentence report is generally not considered Shepard material, statements included in the report that have been admitted by the defendant and incorporated into the final judgment are validly considered under Shepard, 544 U.S. at 26. See United States v. Calloway, 189 F. App'x 486, 490 (6th Cir. 2006). Here, the state court advised Ginter that it was relying on the factual basis and the defendant's statements contained in the pre-sentence report in accepting Ginter's plea, providing him with an opportunity to object. [Record No. 105, p. 2] Ginter accepted the pre-sentence report's factual basis. In summary, the magistrate judge properly considered certain facts and statements, reflected in the state pre-sentence report and incorporated into the final judgment, in determining that Ginter's prior conviction for third degree burglary qualifies as an enumerated offense in 18 U.S.C. § 924(e)(2)(B)(ii).
Ginter's Ohio robbery conviction qualifies as a violent felony under the ACCA if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). The meaning of "physical force" is a question of federal law. Johnson v. United States, 559 U.S. 133, 138 (2010). While the definition in the state statute at issue need not mirror the federal definition of physical force, it must encompass "force capable of causing physical pain or injury to another person." Id. at 140. Such force should be "strong enough to constitute power." Id. at 142 (internal quotation marks and citation omitted).
In 1983, the Ohio robbery statute provided that, "[n]o person, in attempting or committing a theft offense . . . or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another."
While Ohio's definition of the term "force" included violence exerted upon a "thing," Ohio's robbery definition narrowed the use of physical force to a person. Ohio Rev. Code § 2911.02(A). As a result, the magistrate judge properly concluded that Ginter's prior conviction for robbery in 1984 qualified as a violent felony under the "use of force" clause in 18 U.S.C. § 924(e)(2)(B)(i). See United States v. McMurray, 653 F.3d 367, 374 n.6 (6th Cir. 2011) (citing United States v. Mansur, 375 F. App'x 458, 464 (6th Cir. 2010) (holding that attempted robbery in Ohio qualified under the ACCA's "use of force" clause)); United States v. Logan, 16 F.3d 1222 (Table), at *1, 1994 WL 49587 (6th Cir. 1994). [Record No. 113, p. 19]
Ginter contends that the magistrate judge should not have relied on Mansur because it is unpublished and "failed to consider what the Ohio courts had to say." [Record No. 114, p. 5] He relies primarily on the analysis in United States v. Litzy to support his position. Criminal Action No. 3:15-00021, 2015 WL 5895199, *11 (S.D. W. Va. Oct. 8, 2015) (holding that present-day Ohio robbery does not qualify as a crime of violence under U.S.S.G. § 4B1.1). The magistrate judge properly noted that Litzy, as an unpublished district court opinion from another circuit, is not binding upon this Court. See United States v. Flores, 477 F.3d 431, 438 (6th Cir. 2007). [Record No. 113, pp. 20-21]
Additionally, the magistrate judge adequately addressed and refuted the reasoning in Litzy. [Id., pp. 21-24] First, Litzy describes the Ohio robbery statute as overbroad because the definition of "force" applies to both people and things. 2015 WL 5895199, at *5. However, Litzy fails to note that the Ohio robbery statute is expressly limited to "another." Ohio Rev. Code § 2911.02(A)(3). Second, Litzy cites Ohio cases such as State v. Davis, 451 N.E.2d 772 (Ohio 1983), and State v. Carter, 504 N.E.2d 469 (Ohio Ct. App. 1985), to demonstrate that Ohio's "force" definition is broader than Johnson's ACCA "force." Litzy, 2015 WL 5895199, at *5. Davis involved a defendant who threatened the victim by simulating that he was carrying a firearm. 451 N.E.2d at 775. Carter involved an assailant who ran towards an 85-year-old woman, grabbed and moved her hand, and snatched her billfold from her. 504 N.E.2d at 470-71.
Both Davis and Carter involved the threat of physical injury to the victim. In Carter, the court noted that "the potential for serious physical injury was certainly present. . . . A fall at that age often results in a broken hip or other broken bones." 504 N.E.2d at 470. The court further reasoned that the defendant's "behavior and demeanor certainly suggested he was willing to use whatever force was necessary to accomplish his goal." Id. at 472. As a result, Carter is consistent with the "threat" portion of 18 U.S.C. § 924(e)(2)(B)(i). In addition, Davis does not aid Ginter's argument because the court in that case concluded that the defendant's actions may not have "threatened the immediate use of force," but may have instead described a lesser included offense. 451 N.E.2d at 776. Because the trial court in Davis failed to instruct the jury on the lesser offense, the Supreme Court of Ohio remanded the case to the trial court. Id. Consequently, Ginter cannot claim that Davis definitively expounds the Ohio robbery statute.
Because Litzy neglects the "threat" portion of 18 U.S.C. § 924(e)(2)(B)(i), its reasoning regarding Davis and Carter is not persuasive. Moreover, its references to other Ohio cases are not persuasive for the same reasons. See, e.g., State v. Bush, 694 N.E.2d 984, 986 (Ohio Ct. App. 1997) (requiring that the threat of force "be of a type that exacts or potentially exacts harm to a person"). Therefore, even after considering the arguments in Litzy, this Court concludes that Ginter's Ohio robbery conviction qualifies as an ACCA predicate under the "use of force" clause. This Court would come to same conclusion, even if Mansur, 375 F. App'x at 464, failed to adequately address Ohio case law, as argued by Ginter.
An evidentiary hearing is not required where "the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Further, a petitioner presenting a legal, rather than a factual, dispute is not entitled to an evidentiary hearing. See Valentine v. United States, 488 F.3d 325, 333 (6th Cir. 2007). Here, Ginter presents a legal dispute, and the record provides all the information needed to resolve that dispute. Therefore, he is not entitled to an evidentiary hearing. See id. at 333.
In the present action, reasonable jurists would not debate the denial of Ginter's § 2255 motion on the grounds that his prior convictions constitute valid ACCA predicates under the enumerated and "use of force" clauses. As a result, Ginter's claims do not involve Johnson's due process concerns. Thus, he has failed to make a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253(c)(2); Slack, 529 U.S. at 484. Therefore, a Certificate of Appealability will not issue.
Based on the foregoing analysis and discussion, it is hereby
1. The Recommended Disposition of Magistrate Judge Robert E. Wier [Record No. 113] is
2. Defendant Tony Ginter's objections [Record No. 114] to the Report and Recommendation are
3. Defendant Ginter's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Record No. 97] is
4. The defendant's request for appointment of counsel for his § 2255 motion is
5. A Certificate of Appealability shall not issue with respect to any matter or claim raised in this proceeding.
6. A judgment in favor of the United States shall issue this date.
