United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE.
matter before the Court are Defendant Billy Dwight Smith,
Jr.'s pro se filing of June 27, 2016,
denominated “Successive 2255 Motion” [Doc. No.
86], and his Amended Petition Pursuant to 28 U.S.C. §
2255 [Doc. No. 96] filed by counsel on August 24, 2016. The
Tenth Circuit authorized Defendant to file a second or
successive § 2255 motion to raise a claim based on
Johnson v. United States, 135 S.Ct. 2551 (2015).
See In re Smith, No. 16-6129 (10th Cir. May 20,
2016) (unpublished). This Court appointed the Federal Public
Defender to represent Defendant and directed the government
to file a response. The Amended Motion is now fully briefed,
including supplemental briefs regarding recent appellate
decisions [Doc. Nos. 99, 103, 106 & 108]. After careful
consideration of the parties' submissions and the case
record, the Court finds that no evidentiary hearing is needed
and the Amended Motion should be dismissed.
2001, Defendant was convicted of being a felon in possession
of a firearm in violation of 18 U.S.C. § 922(g)(1) and
sentenced to a 210-month term of imprisonment.
Defendant's sentence was enhanced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. §
924(e)(1), because he had three previous convictions for
“a violent felony . . . committed on occasions
different from one another.” Defendant's prior
felonies consisted of two convictions of robbery with
firearms in violation of Okla. Stat. tit. 21, § 801, and
one conviction of second degree burglary in violation of
Okla. Stat. tit. 21, § 1345. The sentencing judge, the
Honorable Ralph G. Thompson, overruled Defendant's
objection to the ACCA enhancement, finding in a written order
the two robbery convictions fall within the ACCA's
definition of violent felony:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year . .
. 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 . . .
18 U.S.C. § 924(e)(2)(B). However, the defendant argues
that the burglary offense does not fall within this
of May 31, 2001 [Doc. No. 48] at 2. Judge Thompson proceeded
to analyze whether Defendant's second-degree burglary
conviction satisfied the ACCA's generic meaning of
burglary by applying the modified categorical approach
authorized by Taylor v. United States, 495
U.S. 575 (1990). Based on the charging document, Judge
Thompson found that Defendant's conviction satisfied the
generic definition of burglary and so qualified as a
“violent felony” for purposes of the ACCA.
See Order of May 31, 2001 [Doc. No. 48] at 4. The
Tenth Circuit affirmed Defendant's conviction and
sentence, and the Supreme Court denied review. See United
States v. Smith, 33 Fed. App'x 462 (10th Cir. 2002),
cert. denied, 537 U.S. 900 (2002). Like Judge
Thompson, the court of appeals found Defendant's
second-degree burglary conviction was properly used to
enhance his sentence under the ACCA because he was charged
“with the requisite elements to satisfy
Taylor's generic burglary definition.”
Smith, 33 Fed. App'x at 466.
October 9, 2003, Defendant filed a pro se motion for
relief from his sentence under 28 U.S.C. § 2255.
Defendant claimed he received ineffective assistance of
counsel because his attorney failed to investigate the
validity of the burglary conviction used for the ACCA
enhancement. Defendant alleged the burglary conviction had
been expunged in 1989, and he submitted a certified copy of
an expungement order. The government responded by challenging
the authenticity of the order and requesting an evidentiary
hearing. Counsel was appointed to represent Defendant for a
hearing, but on March 25, 2004, Defendant was permitted to
withdraw his § 2255 motion. See Order Allowing
Withdrawal Mot. [Doc. No. 74].
26, 2015, the Supreme Court issued its decision in
Johnson v. United States, 135 S.Ct. 2551, 2557
(2015), and declared unconstitutionally vague a part of the
ACCA's definition of “violent felony”
commonly referred to as the “residual clause.”
The residual clause purported to expand a list of enumerated
offenses to include any felony that “otherwise involves
conduct that presents a serious potential risk of physical
injury to another.” See §
924(e)(2)(B)(ii). While invalidating the residual clause, the
Supreme Court expressly stated in Johnson that its
ruling “does not call into question application of the
[ACCA] to the four enumerated offenses, or the remainder of
the Act's definition of a violent felony.”
Johnson, 135 S.Ct. at 2563.
2016, Defendant complied with the statutory requirements for
filing a second or successive § 2255 motion by applying
to the Tenth Circuit for authorization to assert a claim
under Johnson. See In re Smith, No.
16-6129, Petition (10th Cir. May 16, 2016). The court of
appeals found Defendant had made a prima facie showing that
his claim met the gatekeeping requirements of 28 U.S.C.
§ 2255(h)(2) and § 2244(b)(3) because
Johnson announced a new rule of constitutional law
that was previously unavailable and was made retroactive to
cases on collateral review by Welch v. United
States, 136 S.Ct. 1257 (2016). See In re Smith,
No. 16-6129, Order (10th Cir. May 20, 2016). After receiving
the court of appeals' authorization, Defendant filed his
pro se Motion within one year after the
Johnson decision, and thus, the Motion is timely
under § 2255(f)(3).
Amended Motion, Defendant contends his enhanced sentence was
based on three prior convictions that do not satisfy the
ACCA's definition of a “violent felony”
unless the now-invalid “residual clause” is used.
Defendant reaches this conclusion by claiming, first, that
his robbery convictions do not satisfy the
“elements” or “physical force”
definition of “violent felony” in §
924(e)(2)(B)(i) under current case law. Specifically,
Defendant argues that the Supreme Court's clarification
of the term “physical force” in Curtis
Johnson v. United States, 559 U.S. 133 (2010), draws
into question whether his Oklahoma robbery convictions now
satisfy the force clause of the ACCA. Because Judge Thompson
found it “unquestionable” that Defendant's
two robbery convictions were violent felonies and so did not
specify what part of the ACCA's definition of
“violent felony” he relied on, Defendant asserts
that the Court should assume constitutional error occurred.
See Am. Pet. [Doc. No. 96] at 7. The Court
Thompson produced a written order that explained his decision
regarding the ACCA enhancement. In so doing, Judge Thompson
quoted the applicable portions of the ACCA's definition
of a “violent felony” and purposely omitted the
residual clause. Judge Thompson probably found no need to
explain why the robbery convictions were violent felonies
because Defendant did not object to their inclusion. Treating
Defendant's armed robbery convictions as qualifying
felonies for the ACCA enhancement was proper under the
elements or force clause, which requires that the offense
“has as an element the use, attempted use, or
threatened use of physical force against the person of
another.” 18 U.S.C. § 924(e)(2)(B)(i). The Tenth
Circuit had so held in United States v. Sanders, 18
F.3d 1488, 1489 (10th Cir. 1994). See also United States
v. Gilbert, No. 93-6390, 1994 WL 242221 (10th Cir. June
7, 1994) (unpublished). Thus, regardless of any later legal
development regarding the ACCA's requirement of physical
force, as now argued by Defendant under Curtis
Johnson, the Court has no doubt ...