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United States v. Belcher

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

January 3, 2017

UNITED STATES OF AMERICA,
v.
ANTHONY LEE BELCHER, Petitioner.

          AMENDED MEMORANDUM OPINION

          Michael F. Urbanski United States District Judge

         Petitioner Anthony Lee Belcher brings this habeas corpus petition pursuant to 28 U.S.C. § 2255, asking the court to vacate or correct his sentence in light of the United States Supreme Court's recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The court heard oral argument on November 17, 2016 and has reviewed the memoranda submitted by the parties. See ECF Nos. 53, 63, 65, 66, and 68. For the reasons that follow, the court will GRANT Belcher's § 2255 motion, ECF No. 53, and DENY the United States' motion to dismiss, ECF No. 63.[1]

         I.

         On August 23, 1993, the court sentenced Belcher to 180 months of incarceration following his guilty plea to a violation of 18 U.S.C. § 922(g)(1), charging him with being a felon in possession of a firearm.[2] Because the court determined that Belcher had three or more qualifying convictions under the Armed Career Criminal Act (the "ACCA"), he was subject to 18 U.S.C. § 924(e)'s mandatory minimum sentence of 180 months, rather the 120 month maximum sentence otherwise authorized under § 924(a)(2). The court sentenced Belcher to 180 months. Because Belcher was serving a state sentence at the time of his federal conviction, he was not remanded to the custody of the Bureau of Prisons until August 1, 2005. ECF No. 19, at 2. As a result of the court's order, ECF No. 76, Belcher was released from the Bureau of Prisons and is under supervision of the United States Probation Office and will be resentenced on January 5, 2017.

         Neither the Presentence Investigation Report ("PSR") nor the sentencing transcript indicate which of Belcher's prior convictions were deemed predicates leading to his enhancement under § 924(e). However, at sentencing, counsel for Belcher did not object to PSR's conclusion that he qualified as an Armed Career Criminal, subjecting him to § 924(e)'s 180-month mandatory minimum sentence. As a result, the court will consider all of Belcher's prior convictions to determine the ACCA's application. United States v. Pettiford. 612 F.3d 270, 277-78 (4th Cir. 2010). These potential predicate convictions-all Virginia burglary- are referenced in the following paragraphs of the PSR with the year of conviction in parentheses: 30 (1981), 37 (1986), 38 (three convictions in 1988), 40 (1987), 42 (1988), and 46(1992). ECF No. 77.

         The issue now facing this court is whether, following the decisions of the United States Supreme Court in Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States. 136 S.Ct. 125 (2016), Belcher's ACCA enhancement for his prior convictions for Virginia statutory burglary remains lawful.

         II.

         Under 28 U.S.C. § 2255, a federal inmate may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief where "the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a). If the court determines the sentence was unlawfully imposed, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

         A convicted felon found guilty of possessing a firearm faces a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). However, the ACCA provides for a mandatory minimum sentence of 180 months when a defendant was previously convicted of at least three prior serious drug offenses or violent felonies. Id. § 924(e)(1). A violent felony is 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 3crious potential risk of physical injury to another.

Id § 924(e)(2)(B) (strikeout added).

         In 2015, the Supreme Court invalidated the language stricken above after findng it void for vagueness. Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson H").[3] Though often parsed into three clauses-the force clause, the enumerated clause, and the residual clause-§ 924(e)(2)(B) is comprised of two numbered subsections. See Begay v. United States. 553 U.S. 137, 142-44 (2008). Specifically, the first subsection states:

(i) has as an element the, use, attempted use, or threatened use of physical force against the person of another; or ("Subsection (i)")

18 U.S.C. § 924(e)(2)(B). The second subsection states:

(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. ("Subsection (ii)")

Id. Subsection (ii)-the only part of the statute at issue in Belcher's claim-lists several specific "enumerated offense" crimes-burglary, arson, extortion, and use of explosives- that amount to violent felonies. Subsection (ii) goes on to encompass any crime that "otherwise involves conduct that presents a serious potential risk of injury."

         The second portion of Subsection (ii)-the part of the statute deemed unconstitutional in Johnson II-is often called the "residual clause." The residual clause refers to crimes that are "similar to the listed examples in some respects but different in others-similar, say in respect to the degree of risk it produces, but different in respect to the 'way or manner' in which it produces that risk." Begay, 553 U.S. at 144. Accordingly, a crime, for ACCA purposes, cannot qualify as both an enumerated offense and as a residual offense. Id. A contrary interpretation would read the word "otherwise" out of Subsection (ii). Id. Rather, a predicate conviction is an enumerated offense, a residual offense similar to an enumerated offense, or neither. This understanding of § 924(e) was confirmed in James v. United States. 550 U.S. 192 (2007), and aligns with the court's conclusion in this case.

         In James, the Supreme Court determined that neither attempted burglary nor Florida's burglary statute was properly considered as an enumerated offense under Subsection (ii). Id. at 212-13. This is so because, as explained below, the enumerated offense of burglary has been defined by the Supreme Court in a manner that is incongruous with the way many states have written their burglary statutes. Because Florida's version of burglary and attempted burglary did not fall within the definition of generic burglary but posed a degree of risk similar to the ACCA's enumerated version of burglary, the government could rely "on the residual provision of [Subsection (ii)], which-as the court has recognized-can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary." Id.

         Thus, when the Court struck down the ACCA's residual clause in Johnson II. the ACCA enhancement applied in James, based solely on the residual clause, fell as well.[4] 135 S.Ct. at 2563 ("We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James and [United States v.] Sykes. [564 U.S. 1 (2011), ] are overruled. Today's decision does not call into cpestion application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.").

         Whether the Virginia crime of statutory burglary falls within the enumerated clause portion or the residual clause portion of Subsection (ii) is dispositive in determining whether Johnson II reaches Belcher's conviction under the ACCA. Because the court determines that Virginia statutory burglary-now and since Taylor v. United States. 495 U.S. 575 (1990), was decided-does not qualify as one of the enumerated offenses in Subsection (ii) of § 924(e)(2)(B), Belcher's claim is timely, procedurally proper, and his sentence unlawful in light of Johnson II.

         III.

         The federal habeas corpus statute under which Belcher seeks relief, 28 U.S.C. § 2255(f), contains a one-year statute of limitations. The government argues that Belcher's habeas petition is untimely as it was not filed within one year of the date his judgment became final. 28 U.S.C. § 2255(f)(1). Belcher contends that his petition was timely filed pursuant to § 2255(f)(3), as he filed it within one year of the Supreme Court's decision in Johnson II. Under § 2255(f)(3), the one-year statute of limitations period begins on "the date on which the right asserted was initially recognized by the Supreme Court, if mat right has been newly recognized by the Supreme Court and made retroactive applicable to cases on collateral review."

         The government responds that Johnson II has nothing to do with Belcher's case. Belcher was convicted of several Virginia burglaries, which the government contends were enumerated offenses under the ACCA, and Johnson II expressly held that it had no effect on the operation of the enumerated clause.

         Because, as explained below, statutory burglary in Virginia is broader than Taylor's definition of generic burglary, Belcher's convictions properly could have been deemed ACCA violent felonies only by way of the residual clause. Belcher's residual clause enhancement was not subject to attack until Johnson II was decided, after which he had one year to file his § 2255 claim. Because his habeas petition was filed on June 21, 2016, within one year of the June 26, 2015 Johnson II decision, Belcher's petition is timely.

         IV.

         The government next argues that Belcher's claim is procedurally defaulted because he did not previously preserve die issue. Belcher argues diat default does not bar consideration of his Johnson II claim because he satisfies the cause and prejudice standard under Supreme Court precedent.

         Generally speaking, a petitioner cannot raise an argument in a post-conviction proceeding that he did not raise earlier on direct appeal. See, e.g.. Sanchez-Llamas v. Oregon, 548 U.S. 331, 351 (2006) (citing Massaro v. United States. 538 U.S. 500, 504 (2003), and Bousley v. United States, 523 U.S. 614, 621 (1998)). However, courts may excuse procedural default where a defendant is able to demonstrate '"cause' and actual 'prejudice.'" Bousley, 523 U.S. at 622 (citing Murray v. Carrier. 477 U.S. 478, 485 (1986), and Wainwright v. Sykes. 433 U.S. 72, 87 (1977)).

         For the same reason that Belcher's claim is timely, he meets the cause requirement of procedural default. In short, because he could not challenge his sentence under the ACCA until Johnson II was decided, cause exists.

         In Murray, the Supreme Court noted that cause, as could excuse procedural default, requires "some objective factor external to the defense [that] impeded counsel's efforts to comply" with the procedural requirements to raise a claim. 477 U.S. at 488. While Murray did not provide "an exhaustive catalog of such objective impediments, " it noted "that a showing that the factual or legal basis for a claim was not reasonably available to counsel" could constitute the required objective impediment. Id. (citing Reed v. Ross. 468 U.S. 1, 16 (1984)). Reed holds that cause is established "where a constitutional claim is so novel that its legal basis is not reasonably available to counsel." 468 U.S. at 16. In that discussion, Reed described three examples of such novelty:

First, a decision of this Court may explicidy overrule one of our precedents. Second, a decision may overturfn] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. And, finally, a decision may disapprovfe] a practice this Court arguably has sanctioned in prior cases.

Id. at 17 (internal quotations and citations omitted). Reed noted that when a case falls into one of the first two categories and is given retroactive effect, "there will almost certainly have been no reasonable basis upon which an attorney previously could" have made the defaulted argument. Id. "Consequendy, the failure of a defendant's attorney to have pressed such a claim before a state court is sufficiendy excusable to satisfy the cause requirement." Id.

         Until the Supreme Court overruled James in Johnson II, Belcher had no ability to raise a challenge to his ACCA conviction. The James Court rejected a suggestion raised by Justice Scalia's dissent that the residual clause was unconstitutionally vague. "While ACCA requires judges to make sometimes difficult evaluations of the risks posed by different offenses, we are not persuaded by Justice Scalia's suggestion-which was not pressed by James or his amici-that the residual clause is unconstitutionally vague." James. 550 U.S. at 210 n.6. Between James and Johnson II. the Court continued to consider the application of the residual clause to a variety of state crimes, effectively precluding any constitutional challenge to it. See Sykes. 564 U.S. at 12-16; Chambers v. United States. 555 U.S. 122, 127-30 (2009); Begay. 553 U.S. at 145-48. The court thus finds that the legal basis for Belcher's claim was not reasonably available to him before Johnson II was decided, establishing the cause element excusing his procedural default.

         In reaching this conclusion, the court distinguishes the novelty of the challenge made available only after Johnson II was decided with the frequently litigated issue facing the Court in Bousley, upon which the government relies, as to whether mere possession of a firearm ...


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