United States District Court, W.D. Virginia, Danville Division
December 13, 2016
UNITED STATES OF AMERICA
WILLIAM COREY JAMISON, Petitioner.
Jackson L. Kiser Senior United States District Judge
William Corey Jamison, a federal inmate, filed a motion to
vacate, set aside, or correct sentence pursuant to 28 U.S.C.
§ 2255, challenging his 200-month sentence following a
guilty plea. Jamison asserts that he no longer qualifies as
an armed career criminal under the Armed Career Criminal Act
("ACCA") because his predicate Virginia statutory
burglary convictions no longer support such a designation.
The government filed a motion to dismiss, and Jamison
responded, making this matter ripe for disposition. I
conclude that Jamison's petition is untimely, and I grant
the government's motion to dismiss.
24, 2012, Jamison was charged in an eight-count Indictment
with: (1) knowingly and intentionally distributing a mixture
and substance containing a detectable amount of marijuana, in
violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(D)
("Count One"); knowingly and intentionally
distributing a mixture and substance containing a detectable
amount of cocaine base, in violation of 21 U.S.C.
§§ 841(a)(1) and (b)(1)(C) ("Counts Two,
Three, Four and Seven"); and being a felon in possession
of a firearm, in violation of 18 U.S.C. §§ 922(g)
and 924(e) ("Counts Five, Six and Eight").
pleaded guilty, pursuant to a written Plea Agreement, to
Counts Two and Five of the Indictment in exchange for the
dismissal of the remaining charges. The Plea Agreement
stated, in accordance with the ACCA, that "if the Court
determines I have at least three prior convictions for
serious drug offenses and/or violent felonies I will face a
mandatory minimum sentence of imprisonment for a term of
fifteen years and a maximum sentence of imprisonment for
life, pursuant to 18 U.S.C. § 924(e)."
Presentence Investigation Report ("PSR") was
created prior to sentencing. It recommended that Jamison be
designated an armed career criminal based on three prior
Virginia statutory burglary convictions on February 13, 2002.
(PSR ¶ 23, 29, ECF No. 63.) Because of this designation,
he had a total offense level of 31 and a criminal history
category of VI, resulting in a sentencing range of 188 to 235
months' incarceration. (Id. ¶ 55.) Without
the armed career criminal enhancement, Jamison would have had
a base offense level of 17, a criminal history score of V,
resulting in a sentencing range of 46 to 57 months.
sentencing hearing, defense counsel argued that Jamison's
Virginia statutory burglary predicates did not support an
armed career criminal designation because they involved the
burglary of "detached sheds, " which counsel argued
were not buildings or structures, and so these convictions
did not qualify as "generic burglaries" under the
ACCA. (Sent. Hr'g Iran, at 2-5, ECF No. 41.) I did not
agree with defense counsel's argument, and although
noting that the burglaries might be considered crimes of
violence under the residual clause of the ACCA, I ultimately
concluded that Jamison's convictions for breaking and
entering sheds qualified as generic burglaries under the
ACCA. (Id. at 13.) I sentenced Jamison to 200
months' imprisonment and he did not appeal.
§ 2255 motion, Jamison alleges that following the
Supreme Court's ruling in Johnson v. United
States. 135 S.Ct. 2551 (2015), his Virginia statutory
burglary convictions can no longer support his enhanced
sentence under the ACCA. The court appointed the Federal
Public Defender's Office to represent Jamison and it has
provided supplemental briefing.
state a viable claim for relief under § 2255, a
petitioner must prove: (1) that his sentence was
"imposed in violation of the Constitution or laws of the
United States;" (2) that "the court was without
jurisdiction to impose such a sentence;" or (3) that
"the sentence was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack." 28
U.S.C. § 2255. Jamison bears the burden of proving
grounds for a collateral attack by a preponderance of the
evidence. Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958).
§ 2255 petition must adhere to strict statute of
limitations requirements before any of the substantive issues
may be addressed. A person convicted of a federal offense
must file a § 2255 motion within one year of the latest
date on which:
(1) the judgment of conviction becomes final;
(2) the impediment to making a motion created by governmental
action in violation of the Constitution or laws of the United
States is removed, if the movant was prevented from making a
motion by such governmental action;
(3) 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; or
(4) the facts supporting the claim or claims presented could
have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f).
did not file within one year of his final judgment, which was
entered on November 27, 2012, and so his claims are untimely
under § 2255(f)(1). Nonetheless, Jamison argues that his
petition is timely under § 2255(f)(3) because he filed
the motion within one year of the Supreme Court's
decision in Johnson, which was issued on June 26,
2015. The Supreme Court did announce a new rule of
constitutional law in Johnson that applies
retroactively. Welch v. United States, 136
S.Ct. 1257, 1268 (2016). However, Johnson does not
affect Jamison's claims, and so his motion must be
dismissed as untimely.
Supreme Court, in Johnson, considered the
constitutionality of a specific provision of the ACCA.
Federal law prohibits a convicted felon from possessing
firearms. 18 U.S.C. § 922(g). A defendant who violates
this law is subject to a term of up to ten years'
imprisonment. 18 U.S.C. § 924(a)(2). However, when a
defendant has three or more prior convictions for a
"violent felony, " as Jamison did, the ACCA
increases his punishment to a minimum of fifteen years'
imprisonment and a maximum of life. 18 U.S.C. §
924(e)(1). The ACCA defines a "violent felony" as:
[A]ny 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). In Johnson, the
Supreme Court struck down for vagueness the "residual
clause" in the violent felony definition that
"involves conduct that presents a serious potential risk
of physical injury to another." 135 S.Ct. at 2563.
However, the Johnson opinion did not affect the
viability of the other clauses of the "violent
felony" definition in the ACCA, including the
"enumerated clause" that lists "burglary,
" among other crimes. Id. ("Today's
decision does not call into question application of the Act
to the four enumerated offenses, or the remainder of the
Act's definition of a violent felony.").
sentenced Jamison, I concluded that his prior Virginia
statutory burglary convictions qualified as burglaries under
the enumerated crimes clause of the ACCA. (Sent. Hr'g Tr.
at 13, ECF No. 41.) After extensive discussion regarding
whether the burglary convictions of storage buildings
qualified as predicates, I concluded that the requirements
for generic burglary set forth in Taylor v. United
States, 495 U.S. 575, 598 (1990), were met, and that the
defense was trying to parse "the plain language of
Taylor ... a little too finely." (IcL at
12-13.) Because I relied on the enumerated crimes clause, and
not the residual clause, in concluding that Jamison qualified
as an armed career criminal, Johnson is not
implicated. As such, he cannot rely on 28 U.S.C. §
2255(f)(3) to make his otherwise time-barred motion, timely.
In addition, recent Supreme Court decisions such as
Mathis v. United States. 136 S.Ct. 2243 (2016) and
Descamps v. United States, 133 S.Ct. 2276 (2013),
which do provide guidance for determining whether underlying
convictions can constitute predicate offenses under the
enumerated crimes clause of the ACCA, have not been made
retroactively applicable for timeliness purposes on
collateral review. See Blackwell v. United States,
No. 4:10crl2, 2016 WL 5849384 at *4, 2016 U.S. Dist. LEXIS
138839, *11 (W.D. Va. Oct. 6, 2016). Accordingly,
"[petitioner's predicate offenses remain 'crimes
of violence' in the wake of Johnson, " and
so his petition is time barred. Id.; see also
United States v. Peel, No. 2:03crl0017, 2016 WL 6471249
at *4, 2016 U.S. Dist. LEXIS 150927, *10 (W.D. Va. Nov. 1,
2016) (concluding that a § 2255 petition, in which the
defendant challenged his armed career criminal status by
asserting that his Virginia burglary convictions no longer
qualified as predicate offenses after Johnson, was
time barred because the court had relied on the enumerated
crimes clause and so "Johnson d[id] not
reasons stated, I grant the government's motion to
dismiss and dismiss the motion to vacate, set aside, or
correct sentence as untimely. Based upon my finding that
Johnson has not made the requisite substantial showing of a
denial of a constitutional right as required by 28 U.S.C.
§ 2253(c), a certificate of appealability is denied.