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Pennington v. United States

United States District Court, W.D. Kentucky, Louisville

July 2, 2019

TIFFANY DOMINIQUE PENNINGTON PETITIONER
v.
UNITED STATES OF AMERICA

          MEMORANDUM OPINION

          Thomas B. Russell, Senior Judge

         This 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.

         Background

         On 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).

         Petitioner 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.

         Petitioner 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 objections.

         Discussion

         (I) Petitioner's claim that Johnson and Dimaya invalidate his conviction and sentence.

         Petitioner 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 felony that:

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or
(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 denied.

         Petitioner 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 ...

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