United States District Court, E.D. Kentucky, Southern Division, London
MEMORANDUM OPINION AND ORDER
L. BUNNING UNITED STATES DISTRICT JUDGE.
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
Factual and Procedural Background
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
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.
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).
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.
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.
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).
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).
Neuman's Other Motions
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.
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 ...