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Febrez v. United States

United States District Court, D. South Carolina, Florence Division

October 22, 2017

James Edward Febrez, Petitioner,
v.
United States of America, Respondent.

          ORDER

          R. BRYAN HARWELL UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner James Edward Febrez's [ECF No. 217] motion for reconsideration of the portion of the August 14, 2017 Order denying a certificate of appealability in his case. For the reasons stated below, the Court denies Petitioner's motion for reconsideration.

         A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the court's assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85.

         On August 14, 2017, the Court denied Petitioner's motion to vacate under 28 U.S.C. § 2255 after finding that Petitioner was not entitled to relief under Johnson v. United States, 135 S.Ct. 2551 (2015), because Petitioner was sentenced pursuant to a Rule 11(c)(1)(C) plea agreement and not the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). The Court did not reach the issue of whether Petitioner's prior conviction for Threatening a Public Official qualified as a “violent felony” under the “force clause” of 18 U.S.C. § 924(e). The Court also denied a certificate of appealability.

         Motions to alter or amend under Rule 59 are not to be made lightly: “[R]econsideration of a previous order is an extraordinary remedy, to be used sparingly in the interests of finality and conservation of judicial resources.” 12 James Wm. Moore et al., Moore's Federal Practice ¶ 59.30[4] (3d ed.). The Fourth Circuit has held such a motion should be granted for only three reasons: (1) to follow an intervening change in controlling law; (2) on account of new evidence; or (3) “to correct a clear error of law or prevent manifest injustice.” Hutchinson v. Staton, 994 F.2d 1076, 1081 (4th Cir. 1993) (emphasis added). Rule 59 motions “may not be used to make arguments that could have been made before the judgment was entered.” Hill v. Braxton, 277 F.3d 701, 708 (4th Cir. 2002) (emphasis added). Nor are they opportunities to rehash issues already ruled upon because a litigant is displeased with the result. See Tran v. Tran, 166 F.Supp.2d 793, 798 (S.D.N.Y. 2001).

         Petitioner argues the Court's procedural ruling (that his Rule 11(c)(1)(C) plea agreement bars relief under Johnson) is debatable and cites to Cox v. United States, 2016 WL 552350 (E.D. Tenn. Feb. 10, 2016), which states:

A unique consequence of Johnson is that prisoners improperly subjected to § 924(e)'s mandatory statutory minimum are uniformly left with sentences, stipulated or not, exceeding the congressionally authorized maximum punishment sanctioned for non-ACCA violations of § 922(g)(1). The plain language of § 2255 itself reveals that such claims are quintessentially within the scope of the provision because they challenge a sentence “imposed in violation of the Constitution[, ] ... that the court was without jurisdiction to impose [, and] ... in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a).

Cox, 2016 WL 552350 at *2 n.2. The Court does not disagree with Petitioner's argument that there is some debate regarding the effect of a Rule 11(c)(1)(C) plea agreement on a claim that a defendant was improperly sentenced as an armed career criminal under ACCA following Johnson. While the Court's procedural ruling may be debatable as indicated in Cox, Petitioner has failed to show that his petition states a debatable claim of the denial of a constitutional right because his conviction for Threatening the Life of a Public Official clearly qualifies as a “violent felony” under the “force clause” of the ACCA.

         Petitioner's underlying constitutional claim is that he was improperly classified as an armed career criminal under the ACCA and that he is no longer an armed career criminal in the wake of Johnson. Specifically, Petitioner claims that his prior South Carolina conviction for Threatening the Life of a Public Official no longer qualifies as a “violent felony” after Johnson.

         The term “violent felony” is defined in the ACCA as “any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that - (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Subsection (i) is referred to as the “force clause.” Subsection (ii), which references “burglary, arson, or extortion, involves use of explosives, ” is referred to as the “enumerated clause.” The phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another, ” is no longer valid pursuant to the U.S. Supreme Court's holding in Johnson.

         To determine whether Petitioner was properly classified as an armed career criminal, the Court must determine whether the South Carolina offense of Threatening the Life of a Public Official qualifies as a “violent felony” under the “force clause, ” i.e. whether Threatening the Life of a Public Official “has an element the use, attempted use, or threatened use of physical force against the person of another.”[1]

         The South Carolina crime of Threatening the Life of a Public Official is codified at S.C. Code Ann. § 16-3-1040, and provides:

(A) It is unlawful for a person knowingly and wilfully to deliver or convey to a public official or to a teacher or principal of an elementary or secondary school any letter or paper, writing, print, missive, document, or electronic communication or verbal or electronic communication which contains a threat to take the life of or to inflict bodily harm upon the public official, teacher, or principal, or members of his immediate family if the threat is directly related to the public official's, teacher's, or principal's professional responsibilities.
(B) It is unlawful for a person knowingly and wilfully to deliver or convey to a public employee a letter or paper, writing, print, missive, document, or electronic communication or verbal or electronic communication which contains a threat to take the life of or to inflict bodily harm upon the public employee or members of his immediate family ...

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