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Blackwell v. United States

United States District Court, W.D. Virginia, Danville Division

October 6, 2016




         This matter is before the Court on the United States' Motion to Dismiss Petitioner's motion for relief pursuant to 28 U.S.C. § 2255 [ECF No. 59], as well as the United States' motion to hold Petitioner's § 2255 Motion partially in abeyance [ECF No. 58]. Petitioner does not object to holding his Motion to Vacate partially in abeyance (see Reply to Gov'ts Mot. to Hold Petition Partially in Abeyance, Sep. 1, 2016 [ECF No. 60]), so that motion will be granted. The parties have fully briefed the issues raised in the United States' Motion to Dismiss, so that motion is ripe for consideration. For the reasons set forth herein, the United States' Motion to Dismiss will be granted in part.[1]


         On November 16, 2010, Petition Michael Blackwell entered a guilty plea to knowingly possessing a firearm after being convicted of a felony, in violation of 18 U.S.C. § 922(g)(1) and § 924(e). Thereafter, on May 17, 2011, Petitioner was sentenced to 180 months imprisonment. This sentence was mandated by the Armed Career Criminal Act (“ACCA”), which requires a 15 year sentence where a defendant has “three previous convictions by any court . . . for a violent felony . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1).

         Petitioner's Presentence Report reflects that Petitioner's prior convictions for breaking and entering, robbery, unlawful wounding, and statutory burglary constituted the necessary “predicate offenses” to trigger the ACCA's mandatory 15-year sentence.[2] See United States v. Gambill, 492 F. App'x 427, 429 (4th Cir. 2012) (per curiam) (holding that a Virginia conviction for “breaking and entering” qualified as “generic burglary”); United States v. Foster, 662 F.3d 291, 293-94 (4th Cir. 2011) (holding that a conviction under the Virginia burglary statutes could qualify as “generic burglary” under the ACCA). Petitioner was sentenced accordingly and, on June 23, 2016, filed the present Motion for Relief under 28 U.S.C. § 2255.


         Pursuant to 28 U.S.C. § 2255, a prisoner may seek to set aside, correct, or vacate a sentence on the grounds “that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .” 28 U.S.C. § 2255. “Unless it is clear from the pleadings, files, and records that the prisoner is not entitled to relief, § 2255 makes an evidentiary hearing mandatory.” United States v. Rashaad, 249 F. App'x 972, 973 (4th Cir. 2007) (per curiam).


         The question before the court is purely one of law, and the facts are adequately presented by the underlying record and the briefs of the parties. A hearing is not required to dispose of this discrete legal issue.

         Under the ACCA, “a defendant may be sentenced as an Armed Career Criminal (and thus subject to a fifteen-year mandatory minimum sentence) if he violates 18 U.S.C. § 922(g) and has at least three prior convictions for violent felonies or serious drug offenses.” Foster, 662 F.3d at 291. As is relevant here, at the time of Petitioner's sentencing, the ACCA defined “violent felony” as follows:

[T]he 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, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . .

Id. § 924(e)(2)(B). “These three clauses[3] of § 924(e)(2)(B) are often referred to respectively as (i) the ‘force clause, ' (ii) the ‘enumerated crimes clause, ' and (iii) the ‘residual clause.'” United States v. Major, No. 1:16-cv-324, 2016 WL 4059662, at *2 (E.D. Va. July 27, 2016).

         Earlier this year, the Supreme Court held that the “residual clause” of the ACCA was unconstitutionally vague, and that “the indeterminacy of the wide-ranging inquiry required by the residual clause denied both fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Johnsonv. United States, 135 S.Ct. 2551, 2557 (2015). Petitioner's argument here is that his convictions for burglary and breaking and entering were ACCA predicate offenses under the “residual clause.” Because the Supreme Court has held that clause unconstitutional, and because that ...

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