IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

SIDNEY CLARK, :

Petitioner, :

vs. : CIVIL ACTION NO. 16-0330-CG-C

UNITED STATES OF AMERICA, : CRIMINAL ACTION NO. 10-0056-CG

Respondent.

REPORT AND RECOMMENDATION

This cause is before the Court on petitioner’s notice of eligibility (Doc. 147), 

construed as a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 

2255 (see Doc. 148; cf. Doc. 149 (motion to vacate noted on docket sheet)), and the 

government’s response in opposition (Doc. 152).

1 This action has been referred to the 

undersigned for entry of a report and recommendation pursuant to 28 U.S.C. § 

636(b)(1)(B) and S.D. Ala. GenLR 72(a)(2)(R). Following consideration of all relevant 

pleadings, it is recommended that Clark’s § 2255 motion be denied.

BACKGROUND

On September 23, 2010, Clark entered counseled guilty pleas to armed bank 

robbery, in violation of 18 U.S.C. § 2113(a) & (d),

2 as charged in Count 3 of the 

 1 Clark was extended the opportunity to file a reply not later than September 30, 

2016 (Doc. 150); however, to date, petitioner has not filed a reply (compare id. with Docket Sheet).

2 18 U.S.C. § 2113(a) provides, in relevant part, that “[w]hoever, by force and 

violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or 

obtains or attempts to obtain by extortion any property or money or any other thing of value 

belonging to, or in the care, custody, control, management, or possession of, any bank, credit 

union, or any savings and loan association . . . [s]hall be fined under this title or imprisoned not 

(Continued)

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 1 of 7
2

Indictment, and use of a firearm in furtherance of a crime of violence, in violation of 18 

U.S.C. § 924(c), as charged in Count 4 of the Indictment. (Compare Doc. 70 with Doc. 1.) 

Clark was sentenced to a total term of imprisonment of 340 months. (See Doc. 114.) For 

the § 924(c) count, petitioner received a 300 months consecutive sentence to the 40-

month term imposed with respect to the armed bank robbery count. (See id.)

In his motion to vacate, Clark contends that, pursuant to the holdings in Johnson 

v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (finding the ACCA residual clause 

in § 924(e) to be unconstitutionally vague) and Welch v. United States, 136 S.Ct. 1257, 194 

L.Ed.2d 387 (2016) (finding Johnson to be retroactive to cases on collateral review), the 

residual clause in § 924(c) is unconstitutionally vague and, therefore, his 300-month 

consecutive sentence must be vacated. (See Doc. 147, at 1-2.)

CONCLUSIONS OF LAW

The Eleventh Circuit Court of Appeals has recently noted that “[d]istinct from the 

provision in § 924(e), § 924(c) provides for a mandatory consecutive sentence for any 

defendant who uses a firearm during a crime of violence or a drug-trafficking crime.” In 

re Sams, 2016 WL 3997213, *2 (11th Cir. Jul. 26, 2016), citing 18 U.S.C. § 924(c)(1).

For the purposes of § 924(c), “crime of violence” means an offense that is a 

felony and:

(A) has as an element the use, attempted use, or threatened 

use of physical force against the person or property of 

another, or

 

more than twenty years, or both.” Id. Section 2113(d) provides, in turn, that “[w]hoever, in 

committing, or in attempting to commit, any offense defined in subsections (a) and (b) of this 

section, assaults any person, or puts in jeopardy the life of any person by the use of a dangerous 

weapon or device, shall be fined under this title or imprisoned not more than twenty-five years, 

or both.” Id.

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 2 of 7
3

(B) that by its nature, involves a substantial risk that 

physical force against the person or property of another 

may be used in the course of committing the offense.

Id. § 924(c)(3)(A), (B). The former clause is referred to herein as the “useof-force” clause and th[e] later clause as the “§ 924(c)(3)(B) residual 

clause.” Notably, the ACCA’s elements clause only involves the use of 

force “against the person of another,” while the use-of-force clause 

involves the use of force “against the person or property of another.” 

Compare 18 U.S.C. § 924(e)(2)(B)(i)[] with 18 U.S.C. § 924(c)(3)(A).

Id. at *2-3. 

With the foregoing serving as a background, the undersigned notes that the

argument made by Clark in this case is the same argument presented to a panel of the 

Eleventh Circuit Court of Appeals in In re Hines, 824 F.3d 1334 (11th Cir. 2016) and 

rejected by the appellate court panel. Id. at 1335 & 1336. 

As noted, Johnson rendered the residual clause of § 924(e) invalid. It spoke 

not at all about the validity of the definition of a crime of violence found 

in § 924(c)(3). Further, our Court has not held that Johnson invalidates § 

924(c)(3)(B). However, even were we to extrapolate from the Johnson 

holding a conclusion that § 924(c)(3)(B) was also unconstitutional, it 

would not help Hines because his § 924(c) conviction on Count 2 was 

explicitly based on his companion Count 1 conviction for armed bank 

robbery, in violation of 18 U.S.C. § 2113(a) and (d). And a conviction for 

armed bank robbery clearly meets the requirement for an underlying 

felony offense, as set out in § 924(c)(3)(A), which requires the underlying 

offense to include as an element, “the use, attempted use, or threatened 

use of physical force against the person or property of another.

Here, Count 1 charged that Hines “by force, violence and intimidation, 

did take from the person or presence of [a teller] monies belonging to [a 

federally-insured bank]“ and that in doing so, Hines “did assault and put 

in jeopardy the life of [two individuals] by use of a dangerous weapon,” 

all in violation of 18 U.S.C. § 2113(a) and (d). These allegations in the 

indictment mimic the requirements of § 2113(a) and (d). The statutory 

elements that these allegations of the indictment repeat clearly meet § 

924(c)(3)(A)’s requirement that the underlying felony offense must have 

“as an element the use, attempted use, or threatened use of physical force 

against the person or property of another.”

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 3 of 7
4

This means that Hines’s conviction under § 924(c) would be valid even if 

Johnson renders the “crime of violence” definition in § 924(c)(3)(B) 

unconstitutional.

Id. at 1336-1337 & 1337 (footnotes omitted). As was the case in In re Hines, so too in this 

case, the allegations in Count 3 of the indictment track the requirements of § 2113(a) and 

(d) by charging that Clark, and others, “by force, violence and intimidation, did 

knowingly take from the person or presence of [a teller], approximately $114,000.00 in 

monies belonging to, and in the care, custody, control, management and possession of 

[a federally-insured bank]” and in so doing, Clark, and his co-defendants, “did assault 

and put in jeopardy the life of another person by the use of a dangerous weapon, that is, 

a firearm.” (Doc. 1, at 2 & 3.) Therefore, as in In re Hines, “[t]he statutory elements that 

these allegations of the indictment repeat clearly meet § 924(c)(3)(A)’s requirement that 

the underlying felony offense must have ‘as an element the use, attempted use, or 

threatened use of physical force against the person or property of another.’” 824 F.3d at 

1337. In other words, Clarks’ armed bank robbery conviction under § 2113(a) and (d), 

constitutes a crime of violence under § 924(c)(3)(A)’s use-of-force clause, compare id. with 

In re Sams, at *4 and In re Gordon, 827 F.3d 1289, 1293-1294 (11th Cir. Jul. 8, 2016); see 

United States v. Lindsey, 490 Fed.Appx. 322, 325 (11th Cir. Sept. 25, 2012) (“Bank robbery 

in violation of 18 U.S.C. § 2113 is a crime of violence for the purposes of § 924(c).”), and, 

therefore, Clark’s conviction under § 924(c) would still be valid even if this Court was to 

find that Johnson renders the “crime of violence” definition in § 924(c)(3)(B) 

unconstitutional. Accordingly, because Clark is not entitled to Johnson relief, the 

undersigned recommends the denial of his motion to vacate.

Pursuant to Rule 11(a) of the Rules Governing § 2255 Proceedings, the 

undersigned recommends that a certificate of appealability in this case be denied. 28 

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 4 of 7
5

U.S.C. foll. § 2255, Rule 11(a) (“The district court must issue or deny a certificate of 

appealability when it enters a final order adverse to the applicant.”). The habeas corpus 

statute makes clear that an applicant is entitled to appeal a district court’s denial of his

habeas corpus petition only where a circuit justice or judge issues a certificate of 

appealability. 28 U.S.C. § 2253(c)(1). A certificate of appealability may issue only where 

“the applicant has made a substantial showing of the denial of a constitutional right.” 

28 U.S.C. § 2243(c)(2). Where, as here, the merits of the underlying constitutional claim

have been addressed, a COA should issue only when the petitioner demonstrates “that 

reasonable jurists would find the district court’s assessment of the constitutional claims 

debatable or wrong[,]” Slack v. McDaniel, supra,; see also id. at 483–484, 120 S.Ct. at 1603-

1604 (“To obtain a COA under § 2253(c), a habeas prisoner must make a substantial 

showing of the denial of a constitutional right, a demonstration that, under Barefoot, 

includes showing that reasonable jurists could debate whether (or, for that matter, agree 

that) the petition should have been resolved in a different manner or that the issues 

presented were ‘adequate to deserve encouragement to proceed further.’”); see Miller-El 

v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (“Under the 

controlling standard, a petitioner must ‘sho[w] that reasonable jurists could debate 

whether (or, for that matter, agree that) the petition should have been resolved in a 

different manner or that the issues presented were “adequate to deserve encouragement 

to proceed further.”’”). With respect to Clark’s claim, the undersigned recommends that 

the Court find that reasonable jurists could not debate whether his § 2255 motion to 

vacate should be resolved in a different manner or that any of the remaining issues 

presented are adequate to deserve encouragement to proceed further. Accordingly, 

petitioner is not entitled to a certificate of appealability.

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 5 of 7
6

Rule 11(a) further provides: “Before entering the final order, the court may direct 

the parties to submit arguments on whether a certificate should issue.” If there is an 

objection to this recommendation by either party, that party may bring this argument to 

the attention of the district judge in the objections permitted to this report and 

recommendation. Brightwell v. Patterson, CA 11-00165-WS-C, Doc. 14 (order from 

Eleventh Circuit denying petitioner a certificate of appealability in a case in which this 

exact procedure was outlined in the report and recommendation); see also Castrejon v. 

United States, 2011 WL 3241817, *20 (S.D. Ala. Jun. 28, 2011) (providing for the same 

procedure), report and recommendation adopted, 2011 WL 3241580 (S.D. Ala. Jul. 29, 2011); 

Griffin v. DeRosa, 2010 WL 3943702, at *4 (N.D. Fla. Sept. 20, 2010) (providing for same 

procedure), report and recommendation adopted sub nom. Griffin v. Butterworth, 2010 WL 

3943699 (N.D.Fla. Oct. 5, 2010).

CONCLUSION

The Magistrate Judge recommends that the instant motion to vacate (see Docs. 

147 & 149) be denied for the reasons set forth above. Petitioner is not entitled to a 

certificate of appealability and, therefore, he is not entitled to appeal in forma pauperis.

NOTICE OF RIGHT TO FILE OBJECTIONS

A copy of this report and recommendation shall be served on all parties in the 

manner provided by law. Any party who objects to this recommendation or anything in 

it must, within fourteen (14) days of the date of service of this document, file specific 

written objections with the Clerk of this Court. See 28 U.S.C. § 636(b)(1); FED.R.CIV.P. 

72(b); S.D.ALA. L.R. 72.4. The parties should note that under Eleventh Circuit Rule 3-1, 

“[a] party failing to object to a magistrate judge’s findings or recommendations 

contained in a report and recommendation in accordance with the provisions of 28 

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 6 of 7
7

U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court’s order based 

on unobjected-to factual and legal conclusions if the party was informed of the time 

period for objecting and the consequences on appeal for failing to object. In the absence 

of a proper objection, however, the court may review on appeal for plain error if 

necessary in the interests of justice.” 11th Cir. R. 3-1. In order to be specific, an objection 

must identify the specific finding or recommendation to which objection is made, state 

the basis for the objection, and specify the place in the Magistrate Judge’s report and 

recommendation where the disputed determination is found. An objection that merely 

incorporates by reference or refers to the briefing before the Magistrate Judge is not 

specific.

DONE this the 11th day of October, 2016.

 s/WILLIAM E. CASSADY 

UNITED STATES MAGISTRATE JUDGE

Case 1:10-cr-00056-CG-C Document 153 Filed 10/11/16 Page 7 of 7