United States District Court, S.D. Indiana, Terre Haute Division
L. REITZ UNITED STATES ATTORNEY'S OFFICE.
VARNER INDIANA FEDERAL COMMUNITY DEFENDERS.
ROBERT WOOD UNITED STATES ATTORNEY'S OFFICE.
ENTRY DENYING PETITION FOR WRIT OF HABEAS CORPUS AND
DIRECTING ENTRY OF FINAL JUDGMENT
Jane Magntts-Stinson, Chief Judge.
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
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.
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.
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.
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).
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).
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.”
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
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 ...