United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. Payne, United States District Judge.
the Court is Defendant Theodore Burch, Jr.'s
(“Burch”) Motion Under 28 U.S.C. § 2255 to
Vacate, Set Aside, or Correct Sentence by a Person in Federal
Custody (Dkt. 54). Burch contends his detention pursuant to
the Judgment and Sentence of the United States District Court
for the Northern District of Oklahoma, in Case No.
13-CR-50-JHP, is unlawful. Plaintiff the United States of
America (“Government”) filed a Response in
Opposition to Burch's Motion (Dkt. 57). Burch
subsequently filed a Reply brief titled “Motion to
Traverse Government's Response and Amend to Include
‘United States v. Johnson'” (Dkt. 58); a
“Motion to Reduce Sentence Under ‘Johnson v.
United States'” (Dkt. 60); a “Motion of
Finding or Inquiry” (Dkt. 62); and a “Motion to
Amend to Document #58 (‘Mathis v. U.S.,
2016')” (Dkt. 64). For the reasons cited herein,
Burch's request for relief pursuant to § 2255 is
March 7, 2013, a federal Grand Jury indicted Burch with being
a felon in possession of a firearm and ammunition in
violation of 18 U.S.C. §§ 922(g) and 924(e). (Dkt.
11 (Indictment)). Assistant Federal Public Defender William
Widell was appointed to represent Burch in the district court
proceedings. On April 15, 2013, Burch entered a plea of
guilty to the Indictment. (Dkt. 21).
advance of sentencing, the United States Probation Office
prepared a Presentence Investigation Report
(“PSR”) as to Burch, in which it was recommended
he be classified as an Armed Career Criminal
(“ACC”) under the Armed Career Criminal Act, 18
U.S.C. § 924(e) (“ACCA”). (PSR ¶¶
17, 30). Burch's ACC classification was based on his
having committed the § 922(g)(1) offense after
sustaining three prior convictions for a violent felony.
Burch's predicate ACC convictions are two convictions for
Robbery with Firearm and two convictions for Burglary Second
Degree in violation of 21 Okla. Stat. § 1435.
(See PSR ¶ 17; Dkts. 30-3, 30-4). As an ACC,
Burch faced a fifteen-year mandatory minimum sentence. (PSR
objected to his ACC classification, challenging the use of
his two second-degree burglary convictions to enhance his
sentence (Dkt. 28). In his Objection to the PSR, Burch argued
Oklahoma's second-degree burglary statute was divisible,
encompassing conduct broader than the generic crime of
burglary-“an unlawful or unprivileged entry into, or
remaining in, a building or other structure, with intent to
commit a crime.” (Id. at 1) (quoting
Taylor v. United States, 495 U.S. 575, 598 (1990)).
Because the Oklahoma statute was broader than the definition
of generic burglary, Burch argued the Court was required to
apply a modified categorical approach, and the government was
required to prove that Burch's entry into the buildings
was not by tool and that the goods were removed from a
building rather than an alternative object such as a car,
boat, or trailer. (Id. at 4).
response, the Government submitted the charging documents and
judgments in both of Burch's Tulsa County second-degree
burglary cases (Case Nos. CRF-83-3167 and CRF-83-3169), to
demonstrate both convictions were for generic burglary and
therefore qualified as ACCA predicates. (Dkt. 30). The
charging Information in Case No. CRF-83-3167 alleged Burch
did “break and enter into a certain building . . .
Kinney Shoes in which building personal property of value was
kept and contained by breaking open [a] window on [the]
northside of said building and entering without the consent
of said owner, with the willful, felonious and buglarious
intent to steal said property.” (Dkt. 30-3). Burch
pleaded guilty to that charge of Burglary Second Degree on
January 13, 1984. (Id.). In Case No. CRF-83-3169,
the charging Information alleged Burch did “break and
enter into a certain building . . . Otasco Outlet store in
which building personal property of value was kept and
contained, by breaking out an outer window of said building
and entering without the consent of said owner with the
wil[l]ful, felonious and burglarious intent to steal said
property.” (Dkt. 30-4). Burch pleaded guilty to that
charge of Burglary Second Degree on January 13, 1984.
sentencing, the Court overruled Burch's objections and
found Burch to be an ACC. (Dkt. 43 (Sent. Tr.), at 6, 10).
The Court concluded it was “clear from the charging
documents and case law” that Burch's two prior
convictions for Burglary Second Degree met the definition of
generic burglary and the definition of a violent felony under
the ACCA. (Id. at 5). The Court sentenced Burch to
imprisonment for 180 months on the Indictment, the mandatory
minimum sentence under the ACCA. (Id. at 8).
appealed his sentence, arguing the Government had failed to
prove his prior burglary convictions met the definition of
generic burglary for purposes of the ACCA. (Aplt. Br. in Case
No. 13-5117). On appeal, Burch acknowledged that use of the
modified categorical approach shows that Burch had committed
burglaries of buildings, as generic burglary requires.
(Id. at 7). However, Burch argued the modified
categorical approach was inapplicable to the Oklahoma
second-degree burglary statute, because of Supreme Court
precedent in Descamps v. United States, 133 S.Ct.
2276 (2013). Burch argued that under Descamps, the
modified categorical approach does not apply to statutes
“that contain a single, ‘indivisible' set of
elements sweeping more broadly than the corresponding generic
offense.” 133 S.Ct. at 2283. Burch argued the Oklahoma
burglary statute was broader than generic burglary, because
in Oklahoma burglary may be committed with a tool, which is
not an element of generic burglary.
acknowledged, however, that the Tenth Circuit had previously
held that generic burglary did encompass “entry by a
tool or an instrument” for ACCA purposes, in United
States v. Cartwright, 678 F.3d 907, 914 (10th Cir.
2012). Burch recognized that Cartwright was
controlling and that his argument on appeal was foreclosed,
but he explained his appeal was filed for the purposes of
urging a change in law and of preserving his claim
“that Oklahoma's second degree burglary is not
subject to the modified categorical analysis, and the
district [sic] erred by relying on such analysis in reaching
their decision to invoke the ACCA.” (Aplt. Br. at 8-9).
Tenth Circuit affirmed the sentence imposed by this Court.
United States v. Burch, 569 F. App'x 548 (10th
Cir. 2014). Burch filed a petition for a writ of certiorari
with the United States Supreme Court. The Supreme Court
denied certiorari on October 20, 2014. (Dkt. 53).
has now filed a motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside or correct his sentence. (Doc. No. 54).
Burch raises two related grounds in his motion: (1) his
counsel was ineffective for failure to argue that his prior
burglary conviction did not constitute a predicate offense
under the ACCA and (2) his Due Process rights were violated
when his prior burglary conviction was counted as a predicate
offense for ACCA purposes. The Court ordered the Government
to respond to Burch's § 2255 motion. (Dkt. 55). The
Government filed a Response in Opposition to Burch's
§ 2255 motion (Dkt. 57), and Burch filed a Reply
combined with a Motion to Amend to include a claim for relief
pursuant to United States v. Johnson, 135 S.Ct. 2551
(2015) (Dkts. 58, 59). Burch subsequently filed a
“Motion to Reduce Sentence Under ‘Johnson v.
United States'” (Dkt. 60), and a Motion to Amend
his § 2255 motion to add a claim pursuant to Mathis
v. United States, 136 S.Ct. 2243 (2016), as a fourth
ground for relief (Dkt. 64). On April 12, 2017, the Court
directed the Government to respond to the requests to amend.
(Dkt. 65). The Government filed a Response in Opposition to
Burch's requests to amend on June 12, 2017. (Dkt. 68).
Burch filed a Reply to the Government's opposition brief
on August 3, 2017 (Dkt. 71). The pending motions are now
fully briefed and ripe for this Court's review.
Burch's Status Under the ACCA
Status at the Time of Burch's Sentencing and
explained above, Burch's sentence was enhanced to a
fifteen-year minimum as a result of his ACC status. Burch was
found to be an ACC based on his two prior convictions for
Oklahoma second-degree burglary and two prior convictions for
armed robbery. The burglary convictions fall into the
“enumerated offenses” clause of the violent
to sentencing, Burch's counsel challenged the use of his
two second-degree burglary convictions to enhance his
sentence (Dkt. 28). Counsel challenged whether Burch's
second-degree burglary convictions qualified as generic
burglaries and therefore as violent felonies for ACCA
purposes. At sentencing, Burch's counsel stood on the
objection, and the Court rejected Burch's argument.
(See Dkt. 43 (Sent. Tr.)). By relying on the
“modified categorical approach, ” the Court
determined at sentencing that the ...