(HC) Swopes v. Ciolli, No. 1:2021cv01418 - Document 19 (E.D. Cal. 2022)

Court Description: ORDER ADOPTING Findings and Recommendations, GRANTING Motion to Dismiss, DENYING Petition for Writ of Habeas Corpus and DIRECTING Clerk of Court to close case 8 , 17 signed by District Judge Jennifer L. Thurston on 6/24/2022. CASE CLOSED. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HOSEA LATRON SWOPES, 12 13 14 15 16 Petitioner, v. A. CIOLLI, WARDEN, Respondent. ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:21-cv-01418-JLT-HBK (HC) ORDER ADOPTING THE FINDINGS AND RECOMMENDATIONS, GRANTING RESPONDENT’S MOTION TO DISMISS, DENYING PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING CLERK OF COURT TO CLOSE CASE (Docs. 1, 8, 17) 17 18 The assigned magistrate judge issued Findings and Recommendations recommending that 19 Respondent’s Motion to Dismiss be granted, and the Petition be dismissed for lack of jurisdiction. 20 (Doc. 17.) Those Findings and Recommendations were served upon all parties and contained 21 notice that any objections thereto were to be filed within 14 days after service. In addition, the 22 parties were “advised that failure to file objections within the specified time may result in the 23 waiver of rights on appeal.” (Id., citing Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 24 2014); Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). In accordance with the 25 provisions of 28 U.S.C. § 636 (b)(1)(C), the Court has conducted a de novo review of the case. 26 On May 23, 2022, Petitioner timely filed objections to the Findings and 27 Recommendations, which consisted largely of the same argument made in his reply to 28 Respondent’s Motion to Dismiss: that he is actually innocent of the career offender enhancement 1 1 under 18 U.S.C. § 924(e) because his predicate offense of unlawful use of a weapon by exhibiting 2 under Missouri law does not “require the targeted use of force intentionally designed to [sic] 3 injury another person,” and therefore does not qualify as a violent felony based on recent the 4 Supreme Court holding in Borden v. United States, 141 S.Ct. 1817 (2021). In his objections, 5 Petitioner specifically contends that Borden “established that the force clause ‘excludes conduct, 6 like recklessness, that is not directed at [sic] targeted at another.” (Doc. 18 at 2-3.) However, the 7 precise holding in Borden was that criminal offenses “with a mens rea of recklessness do not 8 qualify as violent felonies under ACCA.” Borden, 141 S.Ct. at 1834. Under the Missouri statute 9 at issue here, “a person commits the offense of unlawful use of weapons, . . . if he or she 10 knowingly exhibits, in the presence of one or more person, any weapon readily capable of lethal 11 use in an angry or threatening manner.” Mo. Rev. Stat. § 571.030.1(4)(emphasis added). 12 Petitioner does not argue, nor does the Court discern, that his conviction for unlawful use 13 of a weapon by exhibiting under Missouri law required only a mens rea of recklessness; rather, 14 the mens rea for an exhibiting offense is knowledge. See United States v. Robinson, 29 F.4th 370, 15 377 (7th Cir. 2022) (“The mens rea for Illinois’s aggravated-discharge offense is knowledge, not 16 recklessness. Borden, it follows, is irrelevant to [Petitioner’s] status, because his predicate violent 17 offense was not a reckless crime.”); United States v. Jackson, 30 F.4th 269, 275-76 (5th Cir. 2022) 18 (predicate conviction for aggravated robbery required a mens rea higher than recklessness and 19 therefore qualifies as violent felony for ACCA purposes); Cf. United States v. Hoxworth, 11 F.4th 20 693, 696 (8th Cir. 2021) (“Given that Texas’s version of aggravated assault criminalizes 21 ‘recklessly caus[ing] bodily injury,’ there is no question that Hoxworth’s crime does not count as 22 a violent felony under Borden.”). Thus, Bolden’s holding has no relevance to the Court’s 23 consideration of whether Petitioner is actually innocent of his career offender status based on his 24 Missouri conviction for unlawful use of a weapon by exhibiting. 25 Finally, to the extent Petitioner re-argues in his objections to the Findings and 26 Recommendations that his conviction for exhibiting does not satisfy the “force clause” because 27 “exhibiting does not ever require the targeted use of force intentionally designed to [sic] injury 28 another person,” the Eighth Circuit specifically affirmed the district court’s finding that 2 1 Petitioner’s conviction for unlawful use of a weapon qualified “categorically” as a violent felony 2 under § 924(e) because it “has as an element the use, attempted use, or threatened use of physical 3 force against the person of another.” (Doc. 18 at 2-6; Doc. 17 at 6.); See United States v. Swopes, 4 892 F.3d 961, 962 (8th Cir. 2018). For this reason, Petitioner’s citation to Allen v. Ives, 950 F.3d 5 1184, 1188-89 (9th Cir. 2020), is unhelpful, as that case concerned a petitioner who claimed a 6 prior conviction did not qualify as a predicate offense – a claim that is foreclosed here by the 7 Eighth Circuit’s 2018 Swopes decision. Thus, having carefully reviewed the entire file, including 8 Petitioner’s objections, the Court concludes that the magistrate judge’s Findings and 9 Recommendations are supported by the record and proper analysis. 10 Based upon the foregoing, the Court ORDERS: 11 1. 12 The Findings and Recommendations issued on May 11, 2022, (Doc. 17), are ADOPTED in full. 13 2. Respondent’s Motion to Dismiss (Doc. 8) is GRANTED. 14 3. The petition for writ of habeas corpus (Doc. 1) is DENIED. 15 4. The Clerk of the Court is directed to CLOSE THIS CASE. 16 17 18 IT IS SO ORDERED. Dated: June 24, 2022 19 20 21 22 23 24 25 26 27 28 3

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