United States District Court, W.D. Kentucky, Louisville
B. Russell, Senior Judge
matter is before the Court upon petition by Tiffany Dominique
Pennington for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2255. (DN 309). The Magistrate Judge has filed
Findings of Fact and Conclusions of Law and Recommendations.
(DN 314). Petitioner filed objections to the Magistrate
Judge's recommendations. (DN 325). Petitioner also filed
supplemental objections to the Magistrate Judge's
recommendations. (DN 326 and DN 327). This Court ordered
supplemental briefing to discuss the impact of Sessions
v. Dimaya, 138 S.Ct. 1204 (2018) on this case. Each
party has filed a supplemental brief in response to the
Court's order. (DN 330 and DN 332). Having conducted a de
novo review of the Magistrate Judge's report, and
considering all other relevant information, the Court ADOPTS
the Findings of Fact and Conclusions of Law and
Recommendation as set forth in the report submitted by the
Magistrate Judge to the extent that it has not been
invalidated by recent decisions of the Supreme Court, as
discussed in greater detail below. (DN 314). For the reasons
stated herein, Petitioner's objections are DENIED. The
Court will enter a separate Order and Judgment consistent
with this Memorandum Opinion.
February 13, 2001, Petitioner robbed National City Bank in
Louisville, Kentucky. During the course of the robbery, he
shot and killed a bank employee. Petitioner was indicted on
or about March 6, 2001 and later pleaded guilty to Counts 1
(bank robbery; aiding and abetting), 2 (armed bank robbery;
aiding and abetting), 3 (bank robbery resulting in death), 4
(use of a firearm during a crime of violence), and 5
(possession of a firearm by a convicted felon). (DN 18; DN
255; DN 263). For sentencing purposes, Counts 1 and 2 and
Count 4 and 5 were merged. (DN 255 at 7).
was sentenced on Count 2 for 71 months and on count 4 for 120
months, to be served consecutively, with a total term of 191
months imprisonment. (Id.). Petitioner was
separately sentenced to a term of life on Count 3 to be
served concurrently with the 71 month term imposed for Count
2 and consecutively with the 120-month sentence. (DN 263 at
3). In total, Petitioner was sentenced to life plus 120
months imprisonment and five years of supervised release.
(Id.). Petitioner did not appeal his case to the
Sixth Circuit Court of Appeals.
filed this action for Writ of Habeas Corpus arguing that
Johnson v. United States, 135 S.Ct. 2551 (2015)
renders his conviction and sentencing under Count 4 for
violation of 18 U.S.C. § 924(c) unconstitutional. More
specifically, Petitioner argued that Johnson''
holding regarding the residual clause of 18 U.S.C. §
924(e) applied to § 924(c) as well. The Magistrate Judge
found that United States v. Taylor, 814 F.3d 340
(6th Cir. 2016) controlled and proposed the recommendation
that Petitioner's motion be denied because Johnson did
not invalidate § 924(c)(3)(A) (the "elements
clause") or § 924(c)(3)(B) (the "residual
clause"). After the Magistrate Judge made this
recommendation, however, the Supreme Court expressly held
that § 924(c)(3)(B) is unconstitutionally vague.
United States v. Davis, 588 U.S. __(2019). But
because the elements clause of § 924(c)(3)(A) remains
valid and because the predicate offense Petitioner was
convicted of satisfies the definition of a "crime of
violence" under the elements clause, this Court adopts
the recommendation of the Magistrate Judge and denies
Petitioner's claim that Johnson and Dimaya invalidate his
conviction and sentence.
pleaded guilty to 18 U.S.C. § 924(c)(1)(A) which
requires an enhanced sentence for any individual who, inter
alia, "during and in relation to any crime of violence
... for which the person may be prosecuted in a court of the
United States, uses or carries a firearm, or who, in
furtherance of any such crime, possesses a firearm." A
"crime of violence" is defined by that statute as a
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3). Part (A) of the crime of violence
definition is commonly referred to as the "elements
clause" or "force clause" and part (B) is
referred to as the "residual clause." Petitioner
argues that his § 924(c) conviction must be vacated
because the Supreme Court held the residual clause to be
unconstitutionally vague in Sessions v. Dimaya, 138
S.Ct. 1204, 200 L.Ed.2d 549 (2018). In Dimaya, the Supreme
Court held that the residual clause of 18 U.S.C. § 16(b)
was unconstitutionally vague. Id. at 569. The
residual clause of § 16(b) is practically identical to
the residual clause of § 924(c)(3)(B). Most recently,
the Supreme Court held that the residual clause of §
924(c)(3)(B) is unconstitutionally vague. United States
v. Davis, 588 U.S. __(2019). Therefore, the Magistrate
Judge's conclusion of law that Petitioner's
conviction is valid under the residual clause of §
924(c)(3)(B) is incorrect, and the Court does not adopt it.
However, because Petitioner was convicted of crimes that
satisfy the elements clause definition of a "crime of
violence" under § 924(c)(3)(A), his motion is
pleaded guilty to 18 U.S.C. § 2113(a), (d), and (e).
§ 2113(a) provides:
(a) Whoever, by force and violence, or by intimidation,
takes, or attempts to take, from the person or presence of
another, or obtains or attempts to obtain by extortion any
property or money or any other thing of value belonging to,
or in the care, custody, control, management, or ...