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Neuman v. Butler

United States District Court, E.D. Kentucky, Southern Division, London

August 29, 2017

CHARLES NEUMAN, PETITIONER
v.
SANDRA BUTLER, Warden, RESPONDENT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING UNITED STATES DISTRICT JUDGE.

         Inmate Charles Neuman has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. (Doc. #1). The Court conducts an initial review of Neuman's Petition. 28 U.S.C. § 2243; Alexander v. N. Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). For the reasons set forth below, the Court must deny relief.

         I. Factual and Procedural Background

         In 2008, a federal grand jury in New Orleans issued a five-count indictment charging Neuman with smuggling, operating an enterprise to traffic in counterfeit merchandise, and being a felon in possession of a firearm. After he was found competent to stand trial, a jury found him guilty on all counts.

         At the sentencing hearing, the trial court noted that Neuman had numerous prior convictions, including three for first-degree robberies under La. R. S. §14:64.1 committed on February 23, 1993, February 28, 1993, and March 2, 1993 in Case No. 93-1210. During at least two of those robberies, Neuman or his accomplice brandished a gun. He had also been twice convicted in 1998 and 1999 for possession with intent to distribute substantial quantities of marijuana in Case No. 98-504 and Case No. 1037-001. Because at least three of those offenses qualified as “serious drug offenses” or “violent felonies, ” the trial court concluded that Neuman was an armed career criminal pursuant to 18 U.S.C. § 924(e)(1), subjecting him to a mandatory minimum sentence of 15 years for his violation of 18 U.S.C. § 922(g).

         However, the court imposed a longer sentence of 210 months (17.5 years) for that offense-at the very bottom of the recommended range under the Sentencing Guidelines-based upon additional sentencing factors. That sentence was to run concurrently with his 210-month sentence for facilitating the importation of counterfeit goods. United States v. Neuman, No. 2:08-CR-24-EEF-ALC-1 (E.D. La. 2008).

         The Fifth Circuit affirmed on direct appeal over Neuman's objections to both his convictions and resulting sentence. United States v. Neuman, 406 F. App'x 847 (5th Cir. 2010). In 2012, the trial court denied Neuman's initial motion for relief from the judgment and to vacate his convictions pursuant to 28 U.S.C. § 2255, and the Fifth Circuit denied a certificate of appealability.

         In June 2015, the Supreme Court issued its decision in Johnson v. United States, __ U.S. __, 135 S.Ct. 2551 (2015), in which it held that the “residual clause” found in § 924(e)(2)(B)(ii) is unconstitutionally vague. Id. at 2557. Just shy of one year later and represented by a federal public defender, Neuman sought permission from the Fifth Circuit to file a second or successive motion under § 2255 to invoke Johnson as a new rule of constitutional law to invalidate the enhancement of his § 922(g) conviction pursuant to § 924(e). In August 2016, the Fifth Circuit denied his request because his predicate offenses for first-degree robbery under Louisiana law constituted crimes of violence under the “use of force” clause found in § 924(e)(2)(B)(i), not the residual clause set forth in § 924(e)(2)(B)(ii) invalidated by Johnson. In re: Charles Neuman, No. 16-30646 (5th Cir. Aug. 23, 2016) (citing United States v. Brown, 437 F.3d 450, 452-53 (5th Cir. 2006)). The “use of force” clause was unaffected by Johnson. Johnson, 135 S.Ct. at 2563.

         In February 2017 Neuman filed another motion with the Fifth Circuit requesting permission to file a second or successive § 2255 motion. In a fashion similar to his first request, Neuman's application referred to the Supreme Court's recent decision in Mathis v. United States, __ U.S. __, 136 S.Ct. 2243 (2016), but his arguments were not based upon it. Instead, his application asserted the same arguments considered and rejected by the Fifth Circuit the year before. The Fifth Circuit denied Neuman's application because Mathis did not articulate a new rule of constitutional law made retroactively applicable to cases on collateral review by the Supreme Court, and his application therefore did not satisfy the gatekeeping provisions of § 2255(h). In re: Neuman, No. 17-30087 (5th Cir. Mar. 29, 2017).

         In his pro se petition filed in this Court, Neuman again invokes Johnson and Mathis to assert that his prior first-degree robbery convictions could not be used as valid predicates to enhance his sentence under § 924(e). But while he makes passing references to Johnson and Mathis (Doc. # 1 at 3-4), his arguments are not based upon either decision. Instead, Neuman makes the same argument he made in both of his § 2244(b)(3) applications: that the Fifth Circuit should not apply its precedent in Brown to conclude that his robbery offenses qualified as predicates under the “use of force” clause in light of the Supreme Court's 2010 decision in Johnson v. United States, 559 U.S. 133 (2010). (Doc. # 1 at 5-9). Finally, Neuman contends that he may pursue his claims in this proceeding in light of the Sixth Circuit's decision in Hill v. Masters, 836 F.3d 519 (6th Cir. 2015).

         II. Analysis

         A. Neuman's Other Motions

         Before discussing the merits of his claims, the Court will address the three motions Neuman filed after his petition was submitted. In the first, he asks the Court to expedite consideration of his petition, noting that a recent biopsy indicated that he has cancer and he wishes to seek outside medical treatment. (Doc. # 8). The Court has also received a seven letters in support of his petition from family members across the country expressing their concern for his health and his suitability for release from prison. (Doc. # 14). Under the circumstances, the Court will grant this request.

         Neuman has also filed a Motion for Summary Judgment (Doc. # 10). However, the Court does not apply Federal Rule of Civil Procedure 56 in habeas proceedings, as the procedures and standards applicable to summary judgment motions in civil cases are distinct from those applicable to habeas proceedings. See Fed.R.Civ.P. 81(a)(4); Habeas Rule 12. He has also filed a Motion to Proceed in forma pauperis, apparently in a renewed effort to seek the appointment of counsel. (Doc. # 11). As the Court noted in denying Neuman's first such request, the appointment of counsel in habeas ...


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