United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. PAYNE JUDGE
the Court is Defendant James Steven Maxwell's
(“Defendant”) amended Motion Under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody (Dkt. 90). Defendant contends his
detention pursuant to the Judgment and Sentence of the United
States District Court for the Northern District of Oklahoma,
in No. 10-CR-190-JHP, is unlawful. Defendant has filed a
separate Brief in Support of his Motion. (Dkt. 94). Plaintiff
the United States of America (“Government”) filed
a Response in Opposition to Defendant's Motion (Dkt. 57),
and Defendant filed a Reply (Dkt. 98). The Government
subsequently filed a Notice of Supplemental Authority (Dkt.
101). For the reasons cited herein, Defendant's Motion
pursuant to § 2255 is DENIED.
December 7, 2010, a federal Grand Jury indicted Defendant
with being a felon in possession of a firearm and ammunition,
in violation of 18 U.S.C. §§ 922(g)(1) and
924(e)(1) (Counts One and Two). (Dkt. 7 (Indictment)). On
March 29, 2011, Defendant was convicted by a jury of both
Counts One and Two. (Dkt. 47 (Jury Verdict)).
advance of sentencing, the United States Probation Office
prepared a Presentence Investigation Report
(“PSR”) as to Defendant, 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 ¶ 19).
Defendant's ACC classification was based on his having
committed the § 922(g)(1) offense after sustaining three
prior convictions for a violent felony or serious drug
offense. Defendant's predicate ACC convictions were two
convictions for Assault with a Dangerous Weapon, in violation
of 21 Okl. St. § 645 (Texas County, Oklahoma No.
CRF-81-294; Tulsa County No. CRF-85-644), and one conviction
for Use of a Firearm During a Drug Trafficking Crime
(Northern District of Oklahoma No. 94-CR-103-001-E).
(See PSR ¶¶ 19, 23, 26, 30). As an ACC,
Defendant faced a fifteen-year mandatory minimum sentence.
(PSR ¶ 57).
objected to his ACC classification, challenging the use of
his two assault convictions as predicates to enhance his
sentence (Dkt. 51). In his Objections to the PSR, Defendant
argued his assault convictions were improper ACC predicates
because he was never informed during those guilty pleas that
such convictions could later be used as sentencing
enhancements. (Dkt. 51). As a result, Defendant argued those
guilty pleas were not freely and voluntarily made and
therefore were invalid as a matter of law. (Id.). He
further challenged use of the 1981 Texas County assault
conviction on the ground it was not a felony. (Dkt. 56).
Defendant did not contest the applicability of his Use of a
Firearm During a Drug Trafficking Crime conviction. The
Government opposed Defendant's objections. (Dkt. 58).
sentencing, the Court overruled Defendant's objections
and found Defendant to be an ACC. (Dkt. 70 (Sent. Tr.), at
21-23). The Court sentenced Defendant to imprisonment for 195
months on each Count, to run concurrently with each other and
with any sentence in Tulsa County No. CF-2010-4393. (Dkt. 61
(Judgment & Commitment)).
appealed his convictions and sentence. Defendant presented
his previous objections to use of his 1981 assault conviction
as an ACCA predicate. The Tenth Circuit affirmed the
convictions and sentence imposed by this Court. United
States v. Maxwell, 492 Fed.Appx. 860 (10th Cir. 2012).
Defendant did not petition for a writ of certiorari with the
United States Supreme Court, and he did not file a §
2255 motion or other collateral challenge prior to the
has now filed an amended motion pursuant to 28 U.S.C. §
2255 to vacate, set aside or correct his sentence. (Dkt. 90).
Defendant raises a single ground in his motion, that his ACCA
sentence violates due process based on United States v.
Johnson, 135 S.Ct. 2551 (2015) (Dkt. 90, at 4).
Defendant also filed a Brief in Support of his Motion (Dkt.
94). The Government filed a Response in Opposition (Dkt. 97),
and Defendant filed a Reply (Dkt. 98). The Government also
filed a Notice of Supplemental Authority, notifying the Court
of the Tenth Circuit's opinion in United States v.
Taylor, 843 F.3d 1215 (10th Cir. 2016). (Dkt. 101). The
pending motion is now fully briefed and ripe for this
Ground One: Relief Pursuant to Johnson v. United
States, 135 S.Ct. 2551 (2015)
Ground One of his § 2255 motion, Defendant argues his
ACCA sentence violates due process, based on Johnson v.
United States, 135 S.Ct. 2551 (2015). Defendant argues
that under Johnson, his two prior convictions for
assault with a dangerous weapon are no longer ACCA
predicates, because those convictions were supported by the
ACCA's “residual clause.” Without those
convictions, Defendant asserts his ACCA sentence is supported
by only one valid predicate conviction, which is insufficient
to support the enhancement.
ACCA provides an enhanced sentence for a person who is
convicted as a felon in possession of a firearm, 18 U.S.C.
§ 922(g)(1), and has three prior convictions for violent
felonies or serious drug offenses. 18 U.S.C. §
924(e)(1). The ACCA defines “violent felony, ” in
relevant part, to mean any crime punishable by imprisonment
for a term exceeding one year that (1) “has an element
the use, attempted use, or threatened use of physical force
against the person of another” (the “elements
clause”); (2) “is burglary, arson, or extortion,
involves use of explosives” (the “enumerated
offenses clause”); or (3) “otherwise involves
conduct that presents a serious potential risk of physical
injury to another” (the “residual clause”).
18 U.S.C. § 924(e)(2)(B)(i)-(ii).
Johnson, the United States Supreme Court held the
enhanced sentence could not be imposed pursuant to the
ACCA's residual clause. 135 S.Ct. at 2563. The Supreme
Court found the residual clause violated the Due Process
Clause of the Fifth Amendment to the United States
Constitution, because it was impermissibly vague on its face.
Id. at 2557. While the Court concluded the residual
clause was void in its entirety, the Court explicitly noted
that application of the first two ...