United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
the court is Therral Hatfield's motion under 28 U.S.C.
§ 2255 to vacate, set aside, or correct sentence. Doc.
No. 1. Hatfield contends that his conviction
under 18 U.S.C. § 924(c) is unlawful under the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). However, because the decision in
Johnson did not affect Hatfield's conviction
under § 924(c), Hatfield is entitled to no relief.
BACKGROUND AND PROCEDURAL HISTORY
November 17, 2010, a jury found Hatfield guilty of two counts
of interstate kidnapping, in violation of 18 U.S.C. §
1201(a)(1) (Counts 1 and 2), and one count of using a firearm
during a crime of violence, in violation of 18 U.S.C. §
924(c)(1)(A) (Count 3). The kidnapping offense charged in
Count 1 served as the predicate “crime of
violence” for Hatfield's § 924(c) conviction
under Count 3.
sentencing hearing on June 29, 2011, the district court
sentenced Hatfield to 300 months' imprisonment,
consisting of concurrent terms of 300 months on Counts 1 and
2 and a consecutive term of 84 months on Count 3.
appealed, and on March 16, 2012, the Eleventh Circuit
affirmed his convictions and sentence. See United States
v. Hatfield, 466 Fed.Appx. 775 (11th Cir. 2012).
Hatfield filed no petition for certiorari in the United
States Supreme Court.
15, 2013, Hatfield filed a motion under 28 U.S.C. § 2255
to vacate, set aside, or correct his sentence. See
Hatfield v. United States, Civil Action No.
2:13cv324-WKW. In October 2015, this court denied Hatfield
relief on the claims in his § 2255 motion.
2015, the United States Supreme Court held that the residual
clause of the “violent felony” definition in the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), is unconstitutionally vague. Johnson v.
United States, 135 S.Ct. 2551 (2015). In
Johnson, the Court reasoned: “[T]he
indeterminacy of the wide-ranging inquiry required by the
residual clause both denies fair notice to defendants and
invites arbitrary enforcement by judges. Increasing a
defendant's sentence under the clause denies due process
of law.” Id. at 2557. However, the Court
“d[id] not call into question application of the [ACCA]
to . . . the remainder of the Act's definition of a
violent felony.” Id. at 2563 (alterations
added). Subsequently, in Welch v. United States, 136
S.Ct. 1257 (2016), the Supreme Court held that the
Johnson decision announced a new substantive rule of
constitutional law that applies retroactively to cases on
18 § 924(c) provides in part that a defendant who uses
or carries a firearm “during and in relation to any
crime of violence or drug trafficking crime, ” or
possesses a firearm in furtherance of such crimes, shall, in
addition to the punishment provided for such crime of
violence or drug trafficking crime, be sentenced to a
separate and consecutive term of imprisonment of “not
less than 7 years.” 18 U.S.C. § 924(c)(1)(A)(i).
For purposes of § 924(c), the term “crime of
violence” means an offense that is a felony and:
(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). Subsection (A) of §
924(c)(3) is referred to as the “use-of-force clause,
” and subsection (B) is referred to as the §
924(c)(3)(B) “residual clause.” See In
re Saint Fleur, 824 F.3d 1337, 1339 (11th Cir.
October 2016, Hatfield filed an application with the Eleventh
Circuit seeking leave to file a second or successive §
2255 motion based on the Supreme Court's decision in
Johnson. See Court of Appeals No. 16-16567.
In particular, Hatfield argued that his § 924(c)
conviction under Count 3 of the indictment was unlawful
because the § 924(c)(3)(B) residual clause is materially
indistinguishable from the ACCA residual clause declared
unconstitutionally vague in Johnson. Proceeding from
the premise that Johnson extends to, and voids, the
§ 924(c)(3)(B) residual clause, Hatfield argued that his
§ 924(c) conviction could not stand because the
kidnapping offense in Count 1, which served as the predicate
“crime of violence” for his § 924(c)
conviction, categorically fails to qualify as a crime of
violence under § 924(c)'s remaining use-of-force
clause, see § 924(c)(3)(A), as the elements of
the federal kidnapping statute, 18 U.S.C. § 1201(a), do
not always involve the use of force.
Eleventh Circuit authorized Hatfield to file a
second-or-successive § 2255 motion under 28 U.S.C.
§§ 2255(h) and 2244(b)(3)(A) regarding his claim
that his § 924(c) conviction was unlawful under
Johnson. In finding there was arguable merit to
Hatfield's claim under Johnson, the Eleventh
Circuit noted that it had not yet determined whether federal
kidnapping is categorically a crime of violence for purposes
of § 924(c), and that it was unclear whether the
kidnapping statute categorically ...