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Abbott v. Rathman

United States District Court, N.D. Alabama, Jasper Division

March 27, 2015

J.K. ABBOTT, JR., Petitioner,



Petitioner J.K Abbott, Jr., filed this application for a writ of habeas corpus seeking a reduction of his sentence to the statutory maximum because he asserts he is not an armed career criminal under the Armed Career Criminal Act ("ACCA") enhancement found at 18 U.S.C. § 924(e). (Doc. 1).[1] He further alleges that his federal sentence has been fully served, and that he is due to be released immediately. ( Id. at 5). Upon consideration, the court finds that the motion is due to be denied.


Abbott was convicted on a one-count indictment charging that he possessed seven.22 caliber magnum rifle shells in violation of 18 U.S.C. § 922(g)(1). (Cr. Doc. 43).[2] He was sentenced to serve 188 months custody as an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4. ( Id. ) He appealed his conviction and sentence, asserting, inter alia, that the court erred in enhancing his sentence premised on a finding that he was an armed career criminal. The Eleventh Circuit Court of Appeals affirmed his conviction and sentence. (Cr. Doc. 55).

Abbott then filed a post-judgment motion for relief from his sentence under FED. R. CIV. P. 60(b), requesting that the court vacate the judgment against him because "fraud was committed on the court when it allowed the government to amend the indictment through a Bill of Particulars that was submitted to the court without leave or direction effectfully (sic) changing a key element in the indictment namely venue.'" (Cr. Doc. 57 at 2). The court denied the motion, and Abbott appealed the denial of relief. ( Id. ; Cr. Doc. 58). The appeal was dismissed by the Eleventh Circuit as being untimely. (Cr. Doc. 64).

Abbott next filed a motion pursuant to 28 U.S.C. § 2255 in February 2010, challenging the finding that he was an armed career criminal and the use of a bill of particulars in his case. (Cr. Doc. 65; 2255 Doc. 4 at 1).[3] His request for relief was denied. (2255 Docs. 6 & 7). Abbot appealed the denial of relief. (2255 Doc. 8). His request for a certificate of appealability was denied by the Eleventh Circuit. (2255 Doc. 13).

Abbott filed this action seeking a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2255(e). It was deemed by the Clerk of the Court to be a second § 2255 motion. (Cr. Doc. 66; 2d 2255 Doc. 1).[4] Because Abbott was seeking relief under the general habeas statute, 28 U.S.C. § 2241, via the saving clause of § 2255(e), the case was reclassified as a petition for a writ of habeas corpus and reassigned to the undersigned.


Prior to his conviction and sentencing in the original criminal case, Abbott had been convicted of six felony offenses. Two convictions were for escape, one was for second degree assault, two were for second degree theft and one was for third degree burglary. (Cr. Doc. 51 at 2-7; Government Exhibits (GX) 3-8).[5] The prior convictions were offered by the United States at Abbott's sentencing hearing. United States District Judge Karon O. Bowdre found that the defendant had three predicate offenses to trigger a sentencing enhancement under the ACCA.[6] (Cr. Doc. 51 at 7).

In the present petition, Abbott alleges that his conviction for escape from Draper Correctional Facility on April 28, 1987, is not a "violent felony" for purposes of § 924(e). In support of his contention, he cites Chambers v. United States, 555 U.S. 122 (2009), Begay v. United States, 553 U.S. 137 (2008), and Bryant v. Warden, 738 F.3d 1253 (11th Cir. 2013). (Doc. 1-1 at 1-4). The United States retorts that his conviction is a "violent felony, " and cites to United States v. Proch, 637 F.3d 1262 (11th Cir. 2011). (Doc. 7 at 7-8). The United States further argues that his petition, to the extent it may be construed as a motion pursuant to § 2255, it is time barred. ( Id. at 8-11). Finally, the United States argues the court is without jurisdiction to consider Abbott's petition under § 2241. ( Id. at 11-14).

In his traverse, Abbott argues that the issue of whether his prior escape case constitutes a "violent felony" was resolved by the Eleventh Circuit in United States v. Lee, 586 F.3d 859 (11th Cir. 2009). (Doc. 9 at 2-6). He also alleges that his Winston County burglary conviction (Cr. Doc. 51; GX 4) is "no longer recognized by the Eleventh Circuit as a qualifying" offense for purposes of the ACCA. In support of this latter contention, he relies on United States v. Howard, 742 F.3d 1334 (11th Cir. 2014). (Doc. 9 at 7).

A. Abbott's Challenge to the Elmore County Escape Conviction

Abbott was confined at Draper Correctional Facility serving a sentence for second degree theft during 1987. (Doc. 1-1 at 8). During the morning of April 28, 1987, he was working on a supervised detail outside the institution. At approximately 9:26 a.m., the supervising correctional officer determined during an inmate count that Abbott had left the detail. It was learned that Abbott "crawled through tall grass" near the work site headed towards a nearby lake. ( Id. at 10). A tracking team was used to locate Abbott. He was apprehended several miles from the work site without incident about one hour later. ( Id. at 11-12). He was charged by Elmore County authorities with first degree escape from custody.[7] ( Id. at 8). He pled guilty and was sentenced to thirteen years custody to run concurrent with the sentence he was already serving. ( Id. at 9; Cr. Doc. 51 at 2, GX 5).[8]

Abbott argues that the facts supporting his first degree escape conviction are not sufficient to qualify that offense as a "violent felony" for purposes of the sentencing enhancement imposed by the court. He argues that his conduct is similar to "a walk-away/failure to return type escape" precluded ...

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