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Gordon v. United States

United States District Court, M.D. Pennsylvania

November 8, 2019

MICHAEL LEE GORDON, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         I. Background

         Petitioner 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.

         On 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.

         In 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.

         By 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 375-79.

(Doc. 7-1 at 38, In re: Michael Lee Gordon, No. 16-3629 (6th Cir. Sep. 1, 2016)).

         In 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.

         By 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).

         On 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 ...


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