United States District Court, N.D. Alabama, Southern Division
DAVID PRO'CTOR UNITED STATES DISTRICT JUDGE.
case is before the court on Petitioner‘s Motion to
Vacate, Set Aside, or Correct Sentence. (No.
2:16-cv-08134-RDP ("Habeas Docket"), Doc. # 1). The
Government responded to Petitioner‘s Motion on May 15,
2017. (Id., Doc. # 9). Petitioner amended his Motion
on June 23, 2017 (Id., Doc. # 13), and the
Government responded on May 16, 2018. (Id., Doc. #
15). The court then sent Petitioner an order with
instructions on filing a reply on May 22, 2018.
(Id., Doc. # 16), and Petitioner replied on July 18,
2018 (Id., Doc. # 21). The Motion to Vacate is now
ripe for decision. After careful review, and for the reasons
explained below, the court concludes that Petitioner‘s
Motion to Vacate is due to be denied.
Factual and Procedural Background
October 2013, a grand jury issued an indictment charging
Petitioner with knowingly possessing a "firearm,"
defined as a "destructive device, also known as a
'pipe bomb, ‘ which was not registered to him in
the National Firearms Registration and Transfer Record, in
violation of 26 U.S.C. §§ 5861(d)." (No.
2:13-cr-00456-RDP-JHE ("Criminal Docket"), Doc. #
8). W. Scott Brower entered an appearance for Petitioner on
November 4, 2013 (Id., Doc. # 10), and two days
later William J. Brower entered his appearance.
(Id., Doc. # 12).
Scheduling Order was issued (Id., Doc. # 13),
Petitioner‘s counsel filed a Motion to Continue the
trial in order to retain an explosives expert and to
adequately prepare for trial. (Id., Doc. # 15). The
Motion was conditionally granted on December 13, 2013,
pending the filing of a signed Waiver of Speedy Trial
(Id., Doc. # 17), which Petitioner submitted on
December 17, 2013. (Id., Doc. # 20). The Motion was
granted on December 22, 2013, and the case was continued to
the February 2014 trial docket. (Id., Doc. # 22).
After accepting the Waiver of Speedy Trial, the court then
moved the trial date to March 3, 2014. (Id., Doc. #
February 24, 2014, the Government filed a Notice of its
intent to offer 404(b) evidence of Petitioner‘s 2007
conviction for "manufacturing/possession of an
unregistered destructive device (pipe bomb)."
(Id., Doc. # 29). The Government also filed a Motion
in Limine requesting the defense be precluded from (1)
"argument during opening statement;" (2)
"commenting on the possible sentence of consequences
that may be imposed on the Defendant if the jury finds him
guilty;" (3) "commenting on any failure by the
[Government] to call witnesses to testify who have been
equally accessible to the defense;" (4) "arguing or
presenting testimony to support a 'temporary‘ or
'transitory, ‘ innocent possession defense"
and "presenting a jury instruction on such a
defense;" (5) "introducing any video from YouTube
or similar websites purporting to show the detonation of an
automobile airbag assembly;" (6) and "arguing or
presenting testimony to support a 'mistake of law‘
or a 'mistake of fact‘ defense" by
"arguing that he was unaware of the requirement that a
destructive device must be registered under the National
Firearms Act." (Id., Doc. # 31).
for Petitioner also filed a Motion in Limine requesting that
the Government be precluded from commenting on or testifying
about the following: (1) Petitioner‘s alleged
membership in any hate group or white supremacist
organization, or any items he displayed at his work station
depicting those views; (2) any "document or evidence,
which has not been properly authenticated and admitted into
evidence;" (3) any "hearsay statements made by any
witness to the incident who are not themselves testifying in
court;" (4) any "hearsay statements made to any
witness by any individual other than the [Petitioner];"
(5) any "mention of the [Petitioner‘s] prior
criminal conduct;" (6) any "statements or evidence
regarding the [Petitioner‘s] residence in a Halfway
House at the time of his arrest;" (7) and any
"statements or evidence that the [Petitioner] is alleged
to have made threatening statements toward other
individuals." (Id., Doc. # 33).
conjunction with his Motion in Limine, Petitioner‘s
counsel also filed an objection to the Government‘s
Notice of intent to offer evidence of other criminal conduct.
(Id., Doc. # 35). Counsel clarified that previously
Petitioner had only been charged with (and plead guilty to)
possession of a destructive device in 2007, rather than the
manufacture of such device. (Id. at 2). Contrary to
the Government‘s assertion that the conviction was
relevant to show Petitioner‘s knowledge and intent,
Petitioner‘s counsel argued that this evidence was not
offered for any other purpose other than to show the bad
character of Petitioner. (Id. at 2-3). Furthermore,
because Petitioner had not disputed his knowing possession of
the device, his counsel argued that evidence of his prior
conviction could have no other purpose but to cause prejudice
to the Petitioner. (Id. at 3-5). In
Petitioner‘s view, the only relevant question at trial
was whether the device was a "destructive device,"
i.e., whether it was designed as a weapon.
Trial Brief filed on February 26, 2014, the Government
responded to Petitioner‘s Motion in Limine, and argued
that evidence related to Petitioner‘s white supremacist
expressions, his residence in a halfway house, and his
threats toward other individuals were "inextricably
intertwined with the charged crime." (Id., Doc.
# 38 at 10). The Government acknowledged that
Petitioner‘s alleged membership in any hate group or
white supremacist organization was not relevant to the
charge; however, it contended that the defaced license plate
displaying swastikas and the words "Fuck America"
were "temporally and physically related to the charged
offense" due to their "close proximity to the
device." (Id.). Similarly, it asserted
testimony about Petitioner‘s residence and threats were
necessary to construct a cohesive narrative. (Id. at
relation to Petitioner‘s intent, the Government
summarized the "mixed standard" approach adopted by
the Seventh Circuit in United States v. Johnson, 152
F.3d 618, 628 (7th Cir. 1998). (Id. at 13).
"The Seventh Circuit reasoned that, generally, the
'objective analysis‘ will satisfy to determine
whether the device falls within the ambit of the National
Firearms Act, rendering the defendant‘s subjective
intent regarding the device inappropriate."
(Id., citing Johnson, 152 F.3d at 627). In
other words, "whether the 'objective design of the
device or component parts indicates that the object may only
be used as a weapon, i.e., for no legitimate social or
commercial purpose.‘" (Id., quoting
Johnson, 152 F.3d at 628). If, however,
"'the objective design inquiry is not dispositive
because the assembled device or unassembled parts may form an
object with both a legitimate and illegitimate use, then
subjective intent is an appropriate consideration in
determining whether the device or parts at issue constitute a
destructive device.‘" (Id. at 13-14,
quoting Johnson, 152 F.3d at 628). The Government
argued that the case fell into the second category under the
Johnson approach, and subjective intent was "an
appropriate factor for the jury to consider when determining
what the design and purpose of the device was and whether it
had any value other than as a weapon." (Id. at
14). The Government further maintained that intent also
related to the Rule 404(b) prior conviction in that the
evidence tended to show Petitioner‘s lack of mistake as
to the design features of the device. (Id. at 15).
court held a pretrial conference on February 27, 2014 in
order to address the pending Motions in Limine.
(Id., Doc. # 57). It first addressed the
Government‘s Motion and quickly granted requests one
through four and request six, and thus precluded the defense
from presenting arguments during opening statement,
commenting on sentencing or punishment, commenting on the
failure to call witnesses equally accessible to both sides,
or arguing a temporary or transitory innocent possession
defense. (Id. at 2). The court also granted the
Government‘s fifth request to prevent the defense from
introducing YouTube videos at trial, because the parties
agreed that videos pulled "hobnob off the Internet"
would not be able to be authenticated. (Id. at 2).
the question of whether Petitioner‘s subjective intent
was relevant, Petitioner‘s counsel clarified that they
did not intend to argue Petitioner‘s possession of the
device. (Id. at 6). The Government then described
the case as "a definitional case," and conceded
that the evidence could be assessed according to the
objective test referenced in the Government‘s Trial
Brief. (Id. at 6). Petitioner‘s counsel then
agreed to discuss the propriety of stipulating to possession
of the device with Petitioner, as such a stipulation would
have the effect of limiting the Government‘s evidence
at trial to only the characterization of the device and
whether it qualified as a destructive device under the
statute. (Id. at 7). In light of these developments,
the court ultimately decided that evidence about
Petitioner‘s supposed membership in hate groups, his
Aryan self-identification, the threats he made towards
others, and his residence at the halfway house should be
excluded at trial. (See generally Doc. # 57). The
court left open the possibility that some of this information
might be elicited at trial if Petitioner decided to testify
and a stipulation was not reached. (Id. at 8-9). On
March 3, 2014, an oral order was entered granting
Petitioner‘s Motion in Limine without prejudice.
(Id., Docket Entry # 40).
trial was held before the undersigned on March 3-4, 2014.
(Id., see generally Docs. # 54-55). At
trial, the Government first called Jay Bagwell, a special
agent with the Bureau of Alcohol, Tobacco, Firearms &
Explosives (ATF). (Id., Doc. # 54 at 92-154).
Bagwell testified that he received a call from a Birmingham
FBI Agent on August 12, 2013, notifying him that
Petitioner‘s co-workers thought they had found bombs in
Petitioner‘s workstation. (Id. at 95-96).
Bagwell explained the structural components of the device,
how Petitioner had modified it, and how he and his team
neutralized its explosive capabilities. (Id. at
97-130). He also offered his opinion that the end cap of the
device, which was held in place with black electrical tape,
would fly off at a speed of thousands of feet per second if
detonated due to the amount of pressure building up inside
the device. (Id. at 149-51). The Government then
called Lloyd Erwin, a forensic chemist with the ATF in
Atlanta, who had inspected the devices found in
Petitioner‘s workstation. He confirmed that the mixture
inside the device was sodium azide and iron oxide
(Id. at 170), which if properly contained, could be
classified as an explosive. (Id. at 189). Next, an
ATF explosives enforcement officer, Walker Conklin, testified
that he considered the device to be an "improvised
explosive weapon" due to its capability to fragment and
injure persons standing nearby. (Id., Doc. # 55 at
18-25). Finally, the Government called John Davis,
Petitioner‘s employer at the auto parts store where the
devices were found. (Id. at 49). When shown a
picture of the modified airbag assembly, he clarified that
there was no commercial use related to his business
associated with such devices. (Id. at 50-51).
the Government concluded its case, Petitioner‘s counsel
moved for a judgment of acquittal, and argued that while the
Government had presented evidence that the device would
detonate, it failed to show that the device was designed as a
weapon. (Id. at 55-56). The court heard the
Government‘s response and denied the motion.
(Id. at 57). The court explained to Petitioner the
consequences of choosing (or not choosing) to testify.
(Id. at 59-60). Petitioner confirmed that he
understood and that it was his decision (not his
counsel‘s) about whether to testify. (Id. at
60). He decided not to do so. (Id.).
Petitioner‘s counsel began the Defendant‘s case
in chief and called David Townsend, a firearms and explosives
expert. (Id. at 66). Townsend stated that he would
not classify the device as a weapon, largely because
Petitioner attached the end cap to the device using only
black electrical tape, instead of welding it on.
(Id. at 95-97). He opined that this likely would not
allow enough pressure to build up inside the device to cause
serious fragmentation. (Id.). At the conclusion of
all the evidence, Petitioner‘s counsel renewed their
judgment of acquittal, insisting that the Government had
failed to prove that the device was a weapon. (Id.
at 115). The court overruled the motion, determining that
characterization of the device was a jury question.
final instructions to the jury, the court explained that due
to a pre-trial stipulation, the jury need only decide one
issue-whether the device qualified as a "destructive
device" pursuant to the statutory definition.
(Id. at 131). The court further instructed that in
making this determination, the jury was not to consider
Petitioner‘s intent in creating the device.
(Id. at 105). After receiving the case and
deliberating, the jury found Petitioner guilty of knowingly
possessing a destructive device not registered to him in the
National Firearms Registration and Transfer Record, in
violation of 26 U.S.C. §§ 5861(d).
April 30, 2014, Petitioner moved to appoint substitute
counsel. (Id., Doc. # 46). A hearing on that motion
was held in front of Magistrate Judge John England on May 9,
2014, and William J. Brower and W. Scott Brower withdrew from
representation that same day. (Id., Docs. # 47, 48).
The court granted Petitioner‘s motion on May 13, 2014
(Id., Doc. # 49), and Rick L. Burgess, an Assistant
Federal Public Defender, represented Petitioner through
sentencing. (No. 2:16-cv-08134-RDP ("Habeas
Docket"), Doc. # 1 at 13). Petitioner was sentenced to a
term of 120 months on August 26, 2014. (No.
2:13-cr-00456-RDP-JHE ("Criminal Docket"), Doc. #
65). Although the Presentence Report noted that Petitioner
was a "career offender" convicted of three total
crimes of violence under USSG § 4B1.2(a)(2), Petitioner
was sentenced under USSG § 2K2.1 because it produced a
higher offense level. (Id., Doc. # 63 at 11).
Case entered an appearance on August 26, 2014 and represented
Petitioner on appeal. (Id., Doc. # 62). On September
2, 2014, Petitioner filed a Notice of Appeal, challenging the
district court‘s decision to deny his motion for a
judgment of acquittal on the grounds that the Government
purportedly failed to present sufficient evidence that the
modified airbag cylinder was a "destructive
device." (Id., Docs. # 67, 74). The Eleventh
Circuit affirmed Petitioner‘s conviction on August 20,
2015, concluding that the Government‘s evidence
provided a "sufficient basis for concluding the device
was designed as a weapon." (Id., Docs. # 74 at
4). The Supreme Court then denied Petitioner‘s petition
for a writ of certiorari on April 18, 2016 (Id.,
Docs. # 75). Thereafter, Petitioner filed the instant Motion
to Vacate on July 25, 2016 (Id., Docs. # 76) and
amended his Motion on June 23, 2017. (No. 2:16-cv-08134-RDP
("Habeas Docket"), Doc. # 13).
federal prisoner may file a motion to vacate his or her
sentence "upon the ground that the sentence was imposed
in violation of the Constitution or laws of the United
States, or that the court was without jurisdiction to impose
such sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). It is well
settled that "to obtain collateral relief[, ] a prisoner
must clear a significantly higher hurdle than would exist on
direct appeal." United States v. Frady, 456
U.S. 152, 166 (1982). Here, in his original and amended
Motion to Vacate, Petitioner raises fifteen separate grounds
for relief. The court divides its analysis between the
original and amended grounds, addresses each claim, and after
careful review finds that Petitioner‘s Motion is due to
Petitioner's Original Motion to Vacate
initial Motion to Vacate, Petitioner raised four grounds for
relief (No. 2:16-cv-08134-RDP ("Habeas Docket"),
Doc. # 1): (1) that Johnson v. United States, 135
S.Ct. 2551 (2015) invalidated the calculations of the
sentencing guidelines used in his case (Id. at 4-6);
(2) that his trial counsel was ineffective in allegedly
advising him to concede to possession of a
"pipebomb" (Id. at 6-9); (3) that his
trial counsel, and perhaps appellate counsel, were
ineffective in failing to appeal the trial court‘s
decision to exclude Internet video evidence at trial
(Id. at 9-11); and (4) that his sentence is invalid
under the principles articulated in United States v.
Lockwood, 789 F.3d 773 (7th Cir. 2015) (Id. at
11-13). Below, the court addresses each assertion
in turn, and after doing so finds that Petitioner is not
entitled to any relief based on the grounds raised in his
initial Motion to Vacate.
Petitioner's Johnson-based Claim is Due to be
Johnson v. United States, the Supreme Court held
that increasing a sentence under the residual clause of the
Armed Career Criminal Act (ACCA) violates due process
protections. 135 S.Ct. at 2551. The ACCA allows an increased
sentence to be imposed where a defendant has three prior
convictions for a "violent felony," which the
residual clause defines as any felony that "involves
conduct that presents a serious potential risk of physical
injury to another." 18 U.S.C. § 924(e)(1),
924(e)(2)(B). The court reasoned that the clause was
unconstitutionally vague because it created "uncertainty
about how to estimate the risk posed by a crime" and
"about how much risk it takes for a crime to qualify as
a violent felony." 135 S.Ct. at 2554.
reliance upon Johnson here is misplaced. In
Beckles v. United States, 137 S.Ct. 866 (2017), the
Supreme Court clarified that its ruling in Johnson
had no impact on the advisory Sentencing Guidelines. 137
S.Ct. at 892. The plaintiff in Beckles was sentenced
as a "'career offender‘ under United States
Sentencing Guideline § 4B1.1(a) because his offense
qualified as a 'crime of violence‘ under §
4B1.2(a)'s residual clause." Id. at 888.
Significantly, Johnson considered a vagueness
challenge to the ACCA‘s residual clause, i.e.,
a "statute fixing permissible sentences."
Id. By contrast, the advisory Guidelines
"merely guide the exercise of a court‘s discretion
in choosing an appropriate sentence within the statutory