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United States v. Hill

United States District Court, N.D. Oklahoma

May 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
BILLY JOE HILL, Defendant.

          OPINION AND ORDER

          CLAIRE V. EAGAH DISTRICT JUDGE

         Now before the Court is defendant's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Dkt. # 203) and defendant's Motion for Counsel Appointment and Evidentiary Hearing (Dkt. # 209).[1] Defendant received authorization from the Tenth Circuit Court of Appeals to file a second or successive motion under 28 U.S.C. § 2255 asserting a claim based on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). On June 2, 2016, defendant filed a § 2255 motion raising a Johnson claim, and he argues that he is no longer eligible for sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (ACCA).

         I.

         In a superseding indictment, defendant was charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (counts one and three) and making a false statement during the purchase of a firearm in violation of 18 U.S.C. § 922(a)(6) (count two). Dkt. # 2. The Court appointed three attorneys to represent defendant, and defendant was unable to work with any of the attorneys appointed by the Court. Defendant exercised his right to represent himself at trial after being fully advised of the risks of self-representation. The jury found defendant guilty of counts one and two but could not reach a decision as to count three. Dkt. ## 105, 106. The government moved to dismiss count three of the superseding indictment, and the motion was granted. Dkt. ## 107, 108.

         A presentence investigation report (PSR) was prepared, and it noted that defendant had at least three prior felony convictions that qualified as violent felonies under the ACCA. Defendant had been convicted of robbery with a firearm, robbery with a dangerous weapon after two or more felony convictions, and assault and battery with a dangerous weapon. Defendant was represented by counsel during the sentencing proceedings, and defense counsel filed an objection to the PSR, arguing that defendant's conviction for assault and battery with a dangerous weapon was not a violent felony. Dkt. # 119, at 2. A sentencing hearing was held on June 16, 2005, and the Court found that defendant should be sentenced under the ACCA.[2] Dkt. # 151, at 9-10. Under the United States Sentencing Guidelines, defendant had a total offense level of 33 and criminal history category of IV, and this resulted in a guideline range of 188 to 235 months imprisonment. Defendant was sentenced to 212 months imprisonment. Dkt. # 126. Defendant filed a direct appeal challenging his convictions and sentence, and the Tenth Circuit affirmed defendant's convictions and sentence. Dkt. # 160. Defendant filed a § 2255 motion (Dkt. ## 164, 169) raising numerous claims concerning the validity of his convictions and sentence, and his motion was denied. Dkt. # 188. Defendant sought a certificate of appealability (COA) from the Tenth Circuit, and his request for a COA was denied. Dkt. # 198.

         On May 13, 2016, the Tenth Circuit entered an order authorizing defendant to proceed with a second or successive § 2255 motion asserting a claim under Johnson. Dkt. # 202. Johnson was decided by the Supreme Court on June 26, 2015, and a motion seeking relief under Johnson would be timely if it were filed no later than June 27, 2016.[3] See Dodd v. United States, 545 U.S. 353 (2005) (one year statute of limitation under § 2255 (f)(3) runs from the date that the Supreme Court initially recognized a new constitutional right, rather than the date the new right was made retroactive to cases on collateral review). Defendant's § 2255 motion is timely and the Court has ordered the government to respond to the motion. The government has filed its response (Dkt. # 207) and defendant has filed a reply (Dkt. ## 208, 214), and defendant's § 2255 motion is fully briefed.

         II.

         Defendant argues that his sentence should be reduced in light of the Supreme Court's decision in Johnson. Defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and, under 18 U.S.C. § 924(a)(2), the maximum punishment for this offense is 10 years imprisonment. However, if a defendant has three or more prior convictions that qualify as a violent felony or a serious drug offense, the defendant is subject to a statutory mandatory minimum sentence of 15 years and a possible maximum sentence of life imprisonment under the ACCA. Prior to Johnson, the ACCA defined “violent felony” as follows:

(B) the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that --
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another;
(ii) is burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

18 U.S.C. § 924(e)(2). The latter section of this definition treating a prior conviction as a violent felony if it “involves conduct that presents a serious potential risk of physical injury to another” is known as the “residual clause.” In Johnson, the Supreme Court found that the residual clause was unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment. Johnson, 135 S.Ct. at 2556-57. Johnson does not impact the validity of any other provision of the ACCA, and the Supreme Court stated that “[t]oday's decision does not call into question application of the Act to the four enumerated offenses [burglary, arson, extortion, or involves the use of explosives], or the remainder of the Act's definition of a violent felony.” Id. at 2563. The Supreme Court subsequently determined that Johnson is retroactively applicable to cases on collateral review. Welch, 136 S.Ct. at 1268.

         Courts generally apply a categorical approach to determine if a prior conviction qualifies as a predicate offense under the ACCA. Taylor v. United States, 495 U.S. 575, 588-89 (1990). Under the categorical approach, courts “compare the elements of the statute forming the basis of the defendant's conviction with the elements of the ‘generic' crime -i.e., the offense as commonly understood.” Descamps v. United States, 133 S.Ct. 2276, 2281 (2013). A prior conviction qualifies as a predicate offense under the ACCA “only if the statute's elements are the same as, or narrower than, those of the generic offense.” Id. The Tenth Circuit has described the application of the categorical approach as follows:

[D]etermining whether a prior conviction falls under the ACCA, we apply a “categorical approach, ” generally looking only to the fact of conviction and the statutory definition of the prior offense, and do not generally consider the particular facts disclosed by the record of conviction. That is, we consider whether the elements of the offense are of the type that would justify its inclusion within the ACCA, without inquiring into the specific conduct of this particular offender. To satisfy this categorical approach, it is not necessary that every conceivable factual offense covered by a statute fall within the ACCA. Rather, the proper inquiry ...

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