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Robinson v. Lariva

United States District Court, S.D. Indiana, Terre Haute Division

June 25, 2018

LEON ROBINSON, Petitioner,
v.
LEANN LARIVA, Warden, Respondent.

          BRIAN L. REITZ UNITED STATES ATTORNEY'S OFFICE.

          SARA VARNER INDIANA FEDERAL COMMUNITY DEFENDERS.

          JAMES ROBERT WOOD UNITED STATES ATTORNEY'S OFFICE.

          ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DIRECTING ENTRY OF FINAL JUDGMENT

          Hon. Jane Magntts-Stinson, Chief Judge.

         Leon Robinson seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2241(c)(3). For the reasons discussed in this Entry, his petition for writ of habeas corpus is denied.

         A. Background

         Petitioner Leon Robinson is an inmate currently housed at the FMC Rochester, located in Rochester, Minnesota. At the time he filed the instant petition, he was confined at the Federal Correctional Institution, located in Terre Haute, Indiana.

         Mr. Robinson was convicted by a jury in the Northern District of Mississippi of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). United States v. Robinson, 4:05-cr-0090-MPM-JMV-1 (N.D. Miss. Dec. 15, 2005) (“Crim. Dkt.”). The jury determined that Mr. Robinson was an armed career criminal. Id.; dkt. 26-1. Mr. Robinson had several prior offenses: two armed robbery convictions from Illinois in 1986; another robbery conviction from Illinois in 1986; an attempted robbery conviction from Illinois in 1986; and another attempted armed robbery conviction from Illinois in 1991. Dkt. 1; dkt. 12; dkt. 13 (PSR under seal); dkt. 26-2. The first two armed robberies occurred on the same day, but involved different individual victims and different stolen property. Dkt. 13; dkt. 26-1.

         Based on the jury's finding that Mr. Robinson had three or more prior crimes of violence, Mr. Robinson was sentenced pursuant to the Armed Career Criminal Act (“ACCA”), see 18 U.S.C. § 924(e), and U.S.S.G. § 4B1.4 (2004), to 262 months' imprisonment. Crim Dkt. 51; dkt. 26-2. The sentencing hearing was held on December 8, 2005, and judgment was entered on December 15, 2005. Crim. Dkt. 50, 51.

         Mr. Robinson, with counsel, appealed his conviction. United States v. Robinson, 2006 WL 1983201, 189 Fed.Appx. 352 (5th Cir. July 14, 2006). He alleged that the trial court erred on two grounds: first, that the district court's erroneous admission of the pistol magazine prejudiced his trial; and, second, that his sentence violated the Sixth Amendment because the trial court considered his use of the firearm in the armed robbery as relevant conduct under the Sentencing Guidelines, an issue he argued should have been decided by the jury under United States v. Booker, 543.U.S. 220 (2005). Robinson, 189 Fed.Appx. at 353. His claims were rejected by the Fifth Circuit, holding that his sentence, which was “at the bottom of the properly calculated advisory sentencing guidelines range, ” was not unreasonable. Id. His petition for a writ of certiorari was also denied. Robinson v. United States, 549 U.S. 935 (Oct. 2. 2006).

         On January 31, 2007, Mr. Robinson filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255, raising the same issues he raised on appeal. The trial court dismissed the case finding that the issues raised were procedurally barred because they had been already determined on appeal. Robinson v. United States, 2008 WL 381726, 3:07-cv-0012-MPM (N.D. Miss. Aug. 15, 2008).

         On August 31, 2015, Mr. Robinson filed a motion with the Fifth Circuit seeking authorization to file a successive petition under 28 U.S.C. § 2255. In re Leon Robinson, No. 15-60606, (5th Cir. Sept. 24, 2015). Relying on Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson 2015”), he argued that his 1991 Illinois attempted robbery conviction no longer qualified as a violent felony if the trial court relied on the ACCA's residual clause. Dkt. 26-3 at 3. The Fifth Circuit denied the motion concluding that “Robinson would not be entitled to relief even if Johnson is a new rule of constitutional law that applies retroactively to cases on collateral review” because “Robinson's three prior felonies (Illinois convictions for armed robbery, robbery and attempted robbery) satisfy the ‘use of physical force' prong of the ACCA, 18 U.S.C. § 924(e)(2)(B)(i), which was left undisturbed in Johnson.” Dkt. 26-4 at 3. It noted that “the fact that one prior conviction was for attempted robbery does not change the analysis here.” Id.

         Approximately seven months later, on May 27, 2016, Mr. Robinson, with counsel, filed another motion with the Fifth Circuit seeking authorization to file a successive petition under § 2255. In re Leon Robinson, No. 16-60345 (5th Cir. July 27, 2016). Dkt. 26-5. This time, Mr. Robinson relied on Johnson 2015 and Johnson v. United States, 559 U.S. 133 (2010) (“Johnson 2010”). He again asserted that he is no longer an armed career criminal because his prior Illinois convictions of robbery, armed robbery, attempted robbery, and attempted armed robbery no longer qualify as “violent felonies” under § 924(e). The Fifth Circuit again rejected this claim, addressing the merits. Dkt. 28. It found that “Robinson has three or more convictions that qualify as violent felonies under the ACCA, even in the absence of the residual clause.” Id. “The 2015 Johnson decision is therefore inapplicable to Robinson.” Id. The Fifth Circuit further noted that Johnson 2010 “is not retroactively applicable for purposes of successive § 2255 motions.” Id. The Fifth Circuit therefore concluded that Mr. Robinson had failed to make the requisite prima facie showing to grant the application for a successive petition. Id.

         On October 20, 2015, Mr. Robinson filed the instant habeas petition. With new counsel, Mr. Robinson raises two arguments. First, he argues that under Kirkland v. United States, 687 F.3d 878, 886 (7th Cir. 2012), it is not clear that his 1986 Illinois armed robbery convictions (described in ¶ 47 of the PSR) meet the requirements of the ACCA where “there is not enough documentation to say that these two armed robberies occurred on the same occasion or different occasions.” Dkt. 12 at 3. Second, relying on Johnson 2015 and the finding that the residual clause of § 924(e) is unconstitutionally void for vagueness, he argues that his 1986 Illinois attempted robbery conviction (PSR. ¶ 53), and his 1991 Illinois attempted armed robbery conviction (PSR. ¶ 63), do not qualify as violent felonies under the force clause of ...


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