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Steiner v. United States

United States District Court, M.D. Alabama, Northern Division

November 14, 2017

JAMES STEINER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS, CHIEF UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         In October 2009, a jury found Petitioner James Steiner guilty of conspiracy to commit carjacking, in violation of 18 U.S.C. § 371; aiding and abetting a carjacking, in violation of 18 U.S.C. §§ 2119 and 2; and aiding and abetting the use or carrying of a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. §§ 924(c)(1)(A) and 2. Subsequently, on June 18, 2010, this court sentenced Steiner to 195 months in prison. The Eleventh Circuit affirmed Steiner's conviction and sentence on September 7, 2011, United States v. Ware, 440 F. App'x 745 (11th Cir. 2011), after which Steiner did not seek certiorari review in the Supreme Court.

         On March 5, 2014, the U.S. Supreme Court decided Rosemond v. United States, 134 S.Ct. 1240 (2014), which held that for a conviction under 18 U.S.C. § 924(c), the Government must show “that the defendant actively participated in the underlying . . . violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission.” 134 S.Ct. at 1243. Arguing that he had no such advance knowledge and that the Supreme Court's ruling applied retroactively, Steiner filed a motion under 28 U.S.C. § 2255 on December 29, 2014, seeking to vacate his conviction under § 924(c). (Doc. # 1.) Specifically, Steiner argued that he was actually innocent of the § 924(c) violation, that the trial court erred by failing to instruct the jury of § 924(c)'s advance notice requirement, and that his counsel was ineffective for failing to object to the erroneous jury instructions. (Doc. # 1.) The Government opposed these claims on the grounds that they were untimely, procedurally improper, and without merit. (Doc. # 6.)

         On June 26, 2015, the Supreme Court announced another decision, Johnson v. United States, 135 S.Ct. 2551 (2015), that Steiner believes affected his conviction under § 924(c). In Johnson, the Supreme Court held that the Armed Career Criminal Act's residual clause was unconstitutionally vague, and in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court clarified that the rule announced in Johnson applies retroactively. On January 11, 2016, Steiner amended his § 2255 motion and now argues that Johnson dictates that the residual clause in § 924(c)(3)(B) is unconstitutionally vague as well. (Doc. # 13.)

         In a Recommendation, filed pursuant to 28 U.S.C. § 636(b), the Magistrate Judge finds that Steiner's Rosemond claims are both time-barred and without merit because Steiner had advance knowledge of the use of a firearm in the crime; that the ineffective assistance of counsel claim is both time-barred and without merit because his counsel could not be expected to predict a future Supreme Court holding; and that the Johnson claim-though an issue of first impression-is without merit because the conviction could be affirmed through an alternative provision within § 924(c). (Doc. # 22.) Accordingly, the Magistrate Judge recommends that Steiner's § 2255 motion be denied.

         Steiner filed objections to the Magistrate Judge's Recommendation. (Doc. # 26.) Based upon an independent and de novo review of those portions of the Recommendation to which objection is made, see 28 U.S.C. § 636(b), the Recommendation is due to be adopted and the objections are due to be overruled.

         II. DISCUSSION

         Steiner objects to all of the Recommendation's conclusions, including that his Rosemond claim is time-barred and without merit, that his ineffective assistance of counsel claim is time-barred and without merit, and that his Johnson claim is without merit. Steiner also objects to what he alleges is the Magistrate Judge's failure to address his claim that the trial court's jury instructions were plainly erroneous. The objections are addressed in turn.[1]

         A. Steiner's Rosemond Claim

         Steiner argues that the Magistrate Judge incorrectly finds that his Rosemond claim was untimely under 28 U.S.C. § 2255(f)(1), which includes a statute of limitations of one year from the date on which the conviction becomes final. Instead of the § 2255(f)(1) limitation generally applicable to § 2255 motions, Steiner argues that his Rosemond claim is subject to the rule found in § 2255(f)(3), under which the statute of limitations does not begin to run until “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” As explained, contrary to Steiner's contentions, the Magistrate Judge's conclusion that the § 2255(f)(1) limitation applies is well reasoned and correct.

         First, it cannot be said that the Government waived its ability to assert a timeliness defense. Steiner points out-and the Magistrate Judge recognizes-that the Government used confusing language in noting that “[i]t appears that Rosemond did announce a new substantive rule . . . that should be made retroactively applicable to cases on collateral review.” (Doc. # 6, at 20.) However, considering that this excerpt falls within a section of the Government's Response titled “Steiner's § 2255 Motion Is Untimely Under § 2255(f)(1) And He Has Not Met The Requirements For Application Of § 2255(f)(3) Unless This Court Itself Finds That Rosemond Is Retroactively Applicable Under Teague v. Lane, ” it is clear that the Government is inartfully arguing in the alternative, not expressly waiving a timeliness defense. (Doc. # 6, at 18.)

         Second, the Magistrate Judge reasons that “nearly every” district court to consider whether Rosemond applies retroactively has determined that it does not. (Doc. # 22, at 4.) Opposing the substantial majority of district courts to consider this issue, Steiner argues that Rosemond announced a new substantive rule, and it therefore applies retroactively under Teague v. Lane, 489 U.S. 288 (1989). See Welch, 136 S.Ct. at 1265-66. However, as the Magistrate Judge finds, Rosemond did not announce a “new rule.” (Doc. # 22, at 5.) When considering a direct appeal, the Eleventh Circuit mentioned that Rosemond “clarified” what the Government must prove for a § 924(c) conviction, and this court will not go further to find that Rosemond contains a new rule of law that applies retroactively. United States v. Davis, 754 F.3d 1205, 1222 (11th Cir. 2014), reh'g en banc granted, opinion vacated, 573 F. App'x 925 (11th Cir. 2014), and on reh'g en banc reinstated in relevant part, 785 F.3d 498 (11th Cir. 2015); see Walker v. United States, No. 2:14CV625-MHT-GMB, 2017 WL 4856277, at *3 (M.D. Ala. Sept. 27, 2017) (finding Rosemond does not apply retroactively), report and recommendation adopted, No. 2:14CV625-MHT, 2017 WL 4856167 (M.D. Ala. Oct. 26, 2017). But see Farmer v. United States, 867 F.3d 837, 841-42 (7th Cir. 2017) (holding that Rosemond does apply retroactively on collateral review).

         Moreover, even if the court were to find that Rosemond had retroactive application and Steiner's claim were not time-barred, the Magistrate Judge correctly finds his claim to be without merit. (Doc. # 22, at 6.) The Eleventh Circuit specifically noted that Steiner was “aware” that his codefendant placed guns into the vehicle that Steiner drove on the way to the carjacking, Ware, 440 F. App'x at 749, and Steiner presents no authority or convincing reason for disturbing that finding. Additionally, as the Magistrate Judge found, Steiner's continued participation in the carjacking after his co-defendants fired their weapons at the ...


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