United States District Court, S.D. Ohio, Western Division, Cincinnati
Magistrate Judge Michael R. Merz
DECISION AND ORDER ADOPTING REPORT AND
J. Dlott United States District Judge
case is before the Court on Defendant Clayton Waagner's
second Motion to Vacate under 28 U.S.C. § 2255 (ECF No.
109). The case had been referred to Magistrate Judge Michael
R. Merz on Mr. Waagner's first § 2255 Motion (ECF
Nos. 91, 92) and remained referred on the filing of the
second § 2255 motion.
determined the pending § 2255 motion was a
second-or-successive such motion, Judge Merz transferred it
to the Sixth Circuit for a determination on whether it could
proceed (ECF No. 117). After the court of appeals gave
permission (ECF No. 118), Judge Merz ordered the United
States to answer (ECF No. 119). The United States opposed
granting relief (Response in Opposition, ECF No. 120).
Magistrate Judge Merz then filed a Report and Recommendations
recommending that the § 2255 Motion be dismissed with
prejudice (“Report, ” ECF No. 124). Mr. Waagner
has filed timely Objections (ECF No. 125) and the case is
before the Court for de novo review under Fed.R.Civ.P.
72(b)(3) based on those objections. The Report correctly
notes that the Sixth Circuit's order merely grants this
Court jurisdiction to proceed and does not constitute an
opinion on the merits.
§ 2255 Motion arises from Johnson v. United
States, 576 U.S.__, 135 S.Ct. 2551 (2015), where the
Court declared the residual clause of the Armed Career
Criminal Act (ACCA) unconstitutional. Mr. Waagner was
sentenced under the ACCA but claims it was on the basis of
prior convictions that only qualified as violent felonies
under the residual clause (Motion, ECF No. 109, PageID 1193).
the Court did not specify what prior convictions it was
relying on when imposing sentence in 2002, the Court did
adopt the Presentence Investigation Report which listed five
prior felony convictions: two counts of burglary in Fulton
County, Georgia, on January 18, 1979; aggravated burglary on
July 31, 1979 in Cuyahoga County, Ohio; aggravated burglary
on the same date in Cleveland under a separate case number;
and attempted robbery on April 27, 1992, in Preble County,
Ohio. (PSR ¶ 25).
Aggravated Burglary Convictions
Waagner has two July 31, 1979, convictions for aggravated
burglary in Ohio. Waagner argued these two convictions did
not qualify under the enumerated offenses clause of the ACCA,
relying on United States v. Coleman, 655 F.3d 480
(6th Cir. 2011).
Answer of the United States attached the indictments in these
two cases which show that Mr. Waagner was convicted in them
of aggravated burglary in violation of Ohio Revised Code
§ 2911.11(A)(3). Relying on the indictments and a number
of cases in this District and others finding the statutory
language of Ohio Revised Code § 2911.11(A)(3) and
similar language in other Ohio burglary statutes qualifies as
generic burglary, the Report concluded therefore are
qualifying predicate convictions. The Report found that
United States v. Coleman was still good law, but
only with respect to the statute it was examining, Ohio
Revised Code § 2911.12(A)(3), Ohio's third-degree
objects that the Report on this point is inconsistent with
Magistrate Judge Merz's May 16, 2016, Report which
recommended dismissal of the § 2255 Motion but accepted
the argument that his aggravated burglaries did not qualify
(See ECF No. 110, PageID 1211). While Magistrate Judge Merz
did not explain the inconsistency, the reason for it is
apparent to the Court: the May 2016 Report was made upon
initial review under Rule 4 of the Rules Governing §
2255 Motions. Magistrate Judge Merz did not have before him
either the indictments in the Ohio aggravated burglaries or
the citations of authority he relied on in the present
Report, both of which were later provided by the United
States in its Answer.
Waagner also cites United States v. Fugate, Case No.
3:09-cr-165 (S.D. Ohio Aug. 19, 2016), in which he says the
Government conceded and Magistrate Judge Merz agreed with his
position that “Ohio burglary is no longer an ACCA
predicate offense.” (Objections, ECF No. 125, PageID
1314). Upon examination of the docket in that case, the Court
finds that upon recommittal Magistrate Judge Merz withdrew
the relevant Report.
Waagner was indicted for robbery of a truck stop clerk in
Eaton, Ohio, in 1979. The statute involved was Ohio Revised
Code § 2911.02(A) which includes the use of force or
threatened use of force against another while committing a
theft offense. The statute on its face satisfies the elements
clause of the ACCA. Magistrate Judge Merz found Mr. Waagner
did not dispute that point, but claimed he was convicted
under Ohio's attempt statute, Ohio Revised Code §
2923.02(A) which does not contain a force element.
Report noted that Mr. Waagner was actually convicted of
“attempt as it relates to robbery, ” and reflects
the common Ohio plea bargaining process of “bargaining
to the attempt ...