United States District Court, M.D. Pennsylvania
MALACHY E. MANNION UNITED STATES DISTRICT JUDGE
Michael Lee Gordon, an inmate currently confined in the
United States Penitentiary, Lewisburg, Pennsylvania
(“USP-Lewisburg”), filed this petition for writ
of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1).
He challenges his 1999 convictions under 18 U.S.C.
§924(c) for the use of a firearm during a Hobbs Act
robberies. For the reasons set forth below, the Court will
dismiss the petition for writ of habeas corpus.
was convicted In the United States District Court for the
Southern District of Ohio, of seven (7) counts of using a
firearm during a violent crime (18 U.S.C. § 924(c)) and
seven (7) counts of violating the Hobbs Act (18 U.S.C.
§1951). United States v. Gordon, 238 F.3d 425,
(6th Cir. 2000). He was sentenced to 1, 651 months
imprisonment and three (3) years supervised release, and his
conviction and sentence were affirmed in 2000. Id.
September 30, 2002, the sentencing court denied Gordon's
first motion to vacate sentence under 18 U.S.C. §2255.
(Doc. 7-1 at 3-26, Docket for United States v.
Gordon, S.D. Oh. No. 2:97-cr-137). Petitioner then filed
numerous unsuccessful motions with the Sixth Circuit seeking
leave to file a second or successive §2255 petition,
including the following two most recent motions.
2016, Gordon filed a motion for leave to file a second or
successive motion to vacate, set aside, or correct his
sentence under 28 U.S.C. §2255, on the basis of
Johnson v. United States, 135 S.Ct. 2551 (2015), in
which the Supreme Court held that the residual clause of the
definition of “violent felony” in the Armed
Career Criminal Act (“ACCA”), 18 U.S.C.
§924(e)(2)(B), is unconstitutionally vague. (Doc. 7-1 at
38, In re: Michael Lee Gordon, No. 16-3629
(6th Cir. Sep. 1, 2016)). Gordon asserted that
Johnson also applies to §924(c) and invalidates his
convictions under that statute. Id.
Order dated September 1, 2016, the Sixth Circuit denied
Gordon's motion, finding the following:
Before we may grant a movant permission to file a second or
successive petition under 28 U.S.C. §2255, the movant
must make a prima facie showing that a new rule of
constitutional law applies to his case that the Supreme Court
has made retroactive to cases on collateral review. See 28
U.S.C. §2255(h); In re Green, 144 F.3d 384, 388
(6th Cir. 1998). Gordon cannot make this showing. Although
the Supreme Court has held that Johnson is a new rule of
constitutional law that is retroactively applicable to cases
on collateral review, see Welch v. United States,
136 S.Ct. 1257, 1268 (2016), we have held that Johnson does
not invalidate §924(c), Taylor, 814 F.3d at
(Doc. 7-1 at 38, In re: Michael Lee Gordon, No.
16-3629 (6th Cir. Sep. 1, 2016)).
2018, Gordon filed another motion in the United States Court
of Appeals for the Sixth Circuit, for an order authorizing
the district court to consider a second or successive motion
to vacate, set aside, or correct his sentence under 28 U.S.C.
§2255. In re: Michael Lee Gordon, No. 18-3449
(6th Cir. Aug. 14, 2018). In support of his current motion,
Gordon asserts that his convictions for Hobbs Act robbery do
not qualify as crimes of violence under 18 U.S.C.
§924(c)(3)(B) in light of the Supreme
Court's decision in Sessions v. Dimaya, 138
S.Ct. 1204, 1210-11 (2018), holding that the identically
worded definition of “crime of violence” under 18
U.S.C. §16(b) is unconstitutionally vague. Id.
Order dated August 14, 2018, the Sixth Circuit denied
Gordon's motion as follows:
To obtain this court's authorization for a second or
successive §2255 motion to vacate, Gordon must make a
prima facie showing that his proposed motion relies on
“a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable.” 28 U.S.C. §2255(h)(2);
see 28 U.S.C. §2244(b)(3)(C). Gordon cannot make such a
showing. The government asserts that Dimaya announced a new
substantive rule of constitutional law that applies
retroactively to cases on collateral review, but did so with
respect to only §16(b), not §924(c)(3)(B). Even if
the Supreme Court had announced that Dimaya applies to
§924(c)(3)(B), that rule has no effect on Gordon's
case because his convictions for Hobbs Act robbery qualify as
crimes of violence under §924(c)(3)(A) as offenses
having “as an element the use, attempted use, or
threatened use of physical force against the person or
property of another.” See United States v.
Gooch, 850 F.3d 285, 291-92 (6th Cir.), cert. denied,
137 S.Ct. 2230 (2017).
In re: Michael Lee Gordon, No. 18-3449 (6th Cir.
Aug. 14, 2018).
December 21, 2018, Petitioner filed the above captioned
petition for writ of habeas corpus, in which he requests this
Court to vacate his 1999 conviction and resentence him in
light of the Supreme Court decisions in Johnson v. United