United States District Court, N.D. Oklahoma
OPINION AND ORDER
V. EAGAH DISTRICT JUDGE
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). 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).
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.
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. 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.
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. 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.
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.
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 ...