United States District Court, S.D. Ohio, Western Division
M. Rose District Judge
SECOND SUPPLEMENTAL REPORT AND
Michael R. Merz United States Magistrate Judge
§ 2255 case is before the Magistrate Judge for
consideration on the merits of the Objections made by
Defendant as part of Defendant's Motion for
Reconsideration (Order, ECF No. 84). The Court was barred
from doing so when that Motion was filed, because Defendant
had appealed to the Sixth Circuit (ECF No. 73) from this
Court's Order dismissing the § 2255 Motion (ECF No.
72) and the Court had lost jurisdiction. The Court regained
jurisdiction when the Sixth Circuit dismissed the appeal (ECF
Supplemental Report and Recommendations to which the
Objections are directed, the Magistrate Judge recommended
denying Jordan's § 2255 Motion. Mr. Jordan was
sentenced as a career offender under the Sentencing
Guidelines. The Supplemental Report concluded his 2006 crack
cocaine conviction was for possession and did not qualify as
a predicate offense under the Guidelines, but he had two
other qualifying predicate offenses, robbery in 2005 and
trafficking in crack cocaine in 2011, which together were
sufficient to sustain the career offender classification (ECF
No. 71, PageID 282-83). The Supplemental Report also
concluded the § 2255 Motion was time barred.
Id. at PageID 283.
Objection: § 2255 Motion was Timely
first objects that his § 2255 Motion was timely because
it was filed within one year of the decision in Johnson
v. United States, 135 S.Ct. 2551 (2015)(ECF No. 76,
PageID 297-98). Johnson declared the residual clause
of the Armed Career Criminal Act (“ACCA”) to be
unconstitutionally vague. Then in Welch v. United
States, 576 U.S. __, 136 S.Ct. 1257 (April 18, 2016),
the Supreme Court held Johnson created a new
substantive rule, retroactively applicable to cases on
however, was not sentenced under the ACCA, but was found to
be a career offender under the parallel residual clause of
the Sentencing Guidelines. Jordan correctly notes that the
Sixth Circuit held the Guidelines residual clause to be
unconstitutionally vague in United States v. Pawlak,
822 F.3d 902 (6th Cir. 2016).
was not found to be a career offender under the residual
clause of the Guidelines, but rather under the elements
clause, based on his conviction of robbery, which is a crime
with an element of use or threat of use of physical force. If
that classification was in error, the error occurred at the
time of judgment, February 14, 2014 (ECF No. 50).
Jordan's § 2255 Motion was not filed until June 20,
2016, more than two years after the judgment became final
when Jordan failed to appeal. The later conclusion by the
Sixth Circuit in Pawlak that the residual clause of the
Guidelines was unconstitutional did not reopen the statute of
limitations for § 2255 claims based on other parts of
and above that point, the Supreme Court has now abrogated
Pawlak by holding that the void for vagueness
doctrine does not apply to the Sentencing Guidelines.
Beckles v. United States, 197 L.Ed.2d 145 (2017).
Objection: Robbery is Not A Crime of Violence
notes that the Sentencing Guidelines elements clause requires
that a qualifying predicate offense have “as an element
the use, attempted use, or threatened use of physical force
against the person of another. . . .” (Objections, ECF
No. 76, PageID 299, quoting U.S.S.G. § 4B1.1). The
robbery conviction counted against him was a conviction on a
plea of guilty to violating Ohio Revised Code §
2911.02(A)(3) which prohibits a person, in connection with a
theft offense, from using or threatening “the immediate
use of force against another.” Jordan argues the
statute does not require the use of “physical”
force and therefore does not qualify under the elements
clause. However, he cites no Ohio case law as interpreting
Ohio Revised Code § 2911.02(A) to permit conviction on a
showing of some kind of force other than physical force. In
contrast, the Sixth Circuit has held a conviction under Ohio
Revised Code § 2911.02(A) is for a qualifying violent
felony. See United States v. Mansur, 375 Fed.Appx.
458, 463-466 (6th Cir. 2010); United States v.
Sanders, 470 F.3d 616, 623-24 & n.6 (6th Cir. 2006)
(holding that a robbery conviction under Ohio Rev. Code
§ 2911.02(A) qualified as a violent felony).
also objects that the Presentence Investigation Report at
¶ 63 says that Jordan committed this robbery by
displaying a revolver and that “no actual force was
used.” (ECF No. 76, PageID 299). However, both the Ohio
statute and the Guidelines speak of “threatened use of
force” and it is difficult to imagine a more classic
threat of the use of force than display of a firearm.
reconsidered the case in light of the Objections, the
Magistrate Judge again respectfully recommends the §
2255 Motion be DISMISSED WITH PREJUDICE . Because reasonable
jurists would not disagree with this conclusion, Petitioner
should be denied a certificate of appealability and the Court
should certify to the Sixth Circuit that any appeal ...