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Davis v. United States

United States District Court, E.D. Virginia, Newport News Division

October 28, 2016

GEORGE WILLIE DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal Action No. 4:08cr133

          MEMORANDUM OPINION AND ORDER

          Raymond A. Jackson, United stales District Judge.

         George Willie Davis ("Petitioner") has submitted a Motion pursuant to Title 28, United States Code, Section 2255 to Correct Sentence by a person in federal custody ("§ 2255 Motion"). Having reviewed the Parties' filings in this case, the Court finds this matter is ripe for judicial determination. For the reasons set forth below, Petitioner's § 2255 Motion is GRANTED.

         I. FACTUAL AND PROCEDURAL HISTORY

         On November 12, 2008, an Eastern District of Virginia Grand Jury returned an indictment charging Petitioner with four counts. ECF No. 1.

         Petitioner pled guilty to counts one and three of the indictment. ECF No. 19. Count one charged Petitioner with possession with intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1). Count three charged Petitioner with felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Id.

         On July 13, 2009, Petitioner was sentenced to a term of one hundred ninety-two months imprisonment on count one and a term of one hundred ninety-two months imprisonment on count three, to be served concurrently. Id.

         On June 23, 2016, Petitioner, through counsel, filed the instant Motion to Correct Sentence under 28 U.S.C. § 2255 ("§ 2255"). ECF No. 63. On August 29, 2016, the United States Attorney's Office ("Respondent") filed a response to Petitioner's § 2255 Motion, which asked the Court to deny Petitioner's § 2255 Motion or, alternatively, to hold the § 2255 Motion in abeyance, pending the Supreme Court's decision in Beckles v. United States. ECF No. 68. On September 23, 2016, Petitioner filed a reply to Respondent, in which he requested that any re-sentencing to which he is entitled "be delayed until the United States Court of Appeals for the Fourth Circuit decides United States v. Winston." ECF No. 71.

         In his § 2255 Motion, Petitioner argues that his sentence should be corrected in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). Petitioner's argument is two-fold: 1) Petitioner was sentenced as an "armed career criminal" under the residual clause of the Armed Career Criminal Act (ACCA), which was rendered void in Johnson; and 2) Petitioner was also sentenced as a "career offender" under the residual clause of United States Sentencing Guidelines (U.S.S.G.) Section 4B1.2 (§ 4B1.2), which Petitioner argues should also be considered void in light of Johnson. Mot. Correct 1-2, ECF No. 63. Petitioner therefore requests that this Court "vacate his entire sentence and re-sentence him on all counts." Id. at 2-3.

         In response, Respondent argues that, while Petitioner's sentence under the ACCA is void under Johnson, his sentence under § 4B1.2 is not. Respondent also argues that Petitioner was not harmed by the now-void ACCA sentence because the same Sentencing Guidelines range would have applied in this case regardless of whether Petitioner was sentenced under the ACCA. Resp. 1-2, ECF No. 68.

         II. LEGAL STANDARDS

         When a petitioner in federal custody wishes to collaterally attack his sentence or conviction, the appropriate motion is a § 2255 motion. United States v. Winestock, 340 F.3d 200, 203 (4th Cir. 2003). Section 2255 of Title 28 of the United States Code governs post-conviction relief for federal prisoners. It provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

         In a proceeding to vacate a judgment of conviction, the petitioner bears the burden of proving his or her claim by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         Motions under § 2255 "will not be allowed to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178 (1947). For this reason, issues already fully litigated on direct appeal may not be raised again under the guise of a collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976).

         When deciding a § 2255 motion, the Court must promptly grant a hearing "unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Whether a hearing is mandatory for a § 2255 Motion and whether petitioner's presence is required at the hearing is within the district court's sound discretion and is reviewed for abuse of discretion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970) (citing Machibroda v. United Stales, 368 U.S. 487 (1962)).

         III. DISCUSSION

         A. Timeliness, Johnson, and the ACCA

         A § 2255 motion is subject to a one-year statute of limitations. 28 U.S.C. § 2255(f).Petitioner argues that his motion is timely under subsection (f)(3), which states that the one-year time limit begins on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). Petitioner argues that the right he is asserting was announced by the Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015).

         Petitioner was sentenced as an "armed career criminal" under the Armed Career Criminal Act. The ACCA imposes a minimum imprisonment sentence of fifteen years on those who violate 18 U.S.C. 922(g) (i.e., felon in possession of a firearm) after having been previously convicted of three "violent felon[ies] or serious drug offense[s]." 18 U.S.C. § 924(e)(1). A crime can qualify as a "violent felony" in three ways. First, a crime is a violent felony if it "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i). This is known as the "force clause" of the ACCA.

         Second, a crime is a violent felony if it is "burglary, arson, or extortion, [or] involves use of explosives." 18 U.S.C. § 924(e)(2)(B)(ii). This is known as the "enumerated crimes clause." Finally, a crime is a violent felony if it "involves conduct that presents a serious potential risk of physical injury to another." Id. This is known as the "residual clause" of the ACCA.

         In Johnson v. United States, the Supreme Court held that the residual clause of the ACCA is void because it is unconstitutionally vague. Johnson, 135 S.Ct. at 2557-58. A defendant cannot be sentenced as an "armed career criminal" if any of his prior convictions were for crimes that only ...


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