United States District Court, W.D. Virginia, Big Stone Gap Division
Jennifer R. Bockhorst, Assistant United States Attorney,
Abingdon, Virginia, for United States; Nancy C. Dickenson and
Brian J. Beck, Assistant Federal Public Defenders, Abingdon,
Virginia, for Defendant.
OPINION AND ORDER
Jones, United States District Judge.
Lee Shirks, previously sentenced by this court following
conviction by a jury of illegal possession of a firearm, 18
U.S.C. § 922(g), has filed a motion under 28 U.S.C.
§ 2255, contending that his sentence under the
provisions of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is invalid in
light of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015). The § 2255
motion has been fully briefed by the parties and is ripe for
decision by the court. However, Shirks has now filed a Motion
to Hold Petition in Abeyance, requesting that I reserve
decision on his § 2255 motion on the ground that a case
sub judice in the court of appeals, United
States v. Winston, argued Oct. 27, 2016 (4th Cir.) (No.
16-7252), might determine a “procedural issue”
favorable to Shirks. Similar motions have been filed by the
Federal Public Defender in more than 30 other § 2255
motions relying on Johnson and assigned to me.
sentencing on September 10, 2004, Shirks was found by the
court to be an armed career criminal pursuant to the ACCA
based upon prior felony burglary convictions in Virginia
state courts. The ACCA provides that a person convicted of a
violation of § 922(g), who “has three previous
convictions by any court . . . for a violent felony or a
serious drug offense . . . shall be . . . imprisoned not less
than fifteen years.” 18 U.S.C. § 924(e)(1). Prior
to Johnson, the term “violent felony”
was defined as
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.
18 U.S.C. § 924(e)(2)(B). The first clause is referred
to as the “force clause.” The first portion of
the second clause is known as the “enumerated crime
clause.” The second portion of that clause (“or
otherwise involves conduct that presents a serious potential
risk of physical injury to another”) is called the
“residual clause” and was found to be
unconstitutionally vague in Johnson. The force and
enumerated crime clauses were untouched by Johnson.
The holding in Johnson was made retroactive to cases
on collateral review in a decision by the Supreme Court in
Welch v. United States, 136 S.Ct. 1257 (2016).
the present motion does not identify the “procedural
issue” in question, the briefs by the parties in the
court of appeals in Winston discuss such a question
- whether the § 2255 movant alleging a constitutional
defect under Johnson must affirmatively prove that
he was sentenced under the residual clause, or merely that
the residual clause may have been used. In the
Winston case, the district court held that
“when unclear on which ACCA clause the sentencing judge
rested a predicate conviction[, ] the petitioner's burden
is to show only that the sentencing judge may have used the
residual clause.” United States v. Winston,
No. 3:01-cr-00079, 2016 WL 4940211, at *6 (W.D. Va. Sept. 16,
2016) (Moon, J.). Contrary to Winston, I have held
that the movant has a heavier burden of proof. United
States v. Fields, No. 1:98CR00071-001, slip op. at 5
(W.D. Va. Nov. 1, 2016) (holding that because movant had not
shown that any of his suspect convictions were treated at
sentencing as falling under the residual clause, he had not
shown constitutional error). The government supported the
same burden of proof in Winston, Brief of Appellee
at 16, United States v. Winston, (4th Cir.) (No.
16-7252) and the defendant contended to the contrary, Reply
Brief of Appellant at 23 (id.).
the court of appeals may speak to this question in its
decision in Winston, I believe that the better
course is to deny the present motion. The law is unsettled as
to numerous aspects of the effects of the Johnson
decision, and waiting until the court of appeals has had an
opportunity to resolve this issue may prolong this case and
others like it without substantial advantage to the parties.
That is because in many of the Johnson motions, the
government has multiple defenses that it might assert on
appeal regardless of any decision in Winston. For
example, the United States has noted an appeal in United
States v. Gambill, No. 1:10CR00013, 2016 WL 5865057
(W.D. Va. Oct. 7, 2016), in which I found Virginia burglary
convictions to be invalid as ACCA predicates. If the
Winston case produces a precedent contrary to a
ruling by this court, and the United States has no other
issue it can assert in the court of appeals, I am certain
that all counsel will cooperate in seeking remands in all
such affected cases in order that this court might promptly
correct its error.
these reasons, the Motion to Hold Petition in Abeyance ...