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United States v. Waagner

United States District Court, S.D. Ohio, Western Division, Cincinnati

April 11, 2017


          Magistrate Judge Michael R. Merz


          Susan J. Dlott United States District Judge

         This 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.

         Having 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.

         The § 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).

         Although 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).

         Ohio Aggravated Burglary Convictions

          Waagner has two July 31, 1979, convictions for aggravated burglary in Ohio[1]. 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).

         The 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.[2] 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 burglary statute.

         Waagner 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.

         Mr. 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.

         1979 Attempted Robbery

         Mr. 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.

         The 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 ...

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