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Al-Muwwakkil v. United States

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

March 6, 2017

UNITED STATES OF AMERICA, Respondent. Criminal No. 4:01cr92


          Robert G. Doumar, Judge

         This matter comes before the Court on Akeem Labeeb Al-Muwwakkil's ("Petitioner") Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 ("Section 2255 Motion"). ECF No. 77. For the reasons set forth herein, Petitioner's Motion is DENIED.


         On September 5, 2001, Petitioner was named in a one-count indictment charging him with Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. § 922(g). ECF No. 7. Petitioner was found guilty after a jury trial. See ECF No. 16. Because of Petitioner's prior felony convictions, Petitioner was subject to a mandatory minimum 15 year sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). See Presentence Report ("PSR"), ECF No. 75, at 14, 18. On March 21, 2001, Petitioner was sentenced by this Court to 280 months of imprisonment. See J., ECF No. 22. On October 23, 2002, the Court of Appeals affirmed Petitioner's conviction and sentence. United States v. Al-Muwwakkil, 48 F.App'x 897 (4th Cir. 2002).

         On October 31, 2003, Petitioner filed his first Section 2255 Motion. ECF No. 38. This Court denied the motion on March 19, 2004, and did not issue a certificate of appealability. ECF No. 41. The Court of Appeals also denied a certificate of appealability and dismissed Petitioner's first Section 2255 Motion. ECF No. 49. In the years since the denial of his first Section 2255 Motion, Petitioner has filed a number of other motions for relief. See ECF Nos. 51, 52, 54, 57, 65.

         On June 27, 2016, the Court of Appeals granted Petitioner authorization to file a successive Section 2255 Motion as the result of the Supreme Court's decisions in Johnson v. United States. 135 S.Ct. 2551 (2015), and Welch v. United States. 136 S.Ct. 1257 (2016). ECF No. 76. Petitioner then timely filed the instant Motion, arguing that, after Johnson, most of his prior felony convictions no longer qualify as "violent felonies" under the ACCA and that he should accordingly be resentenced as his current sentence exceeds the statutory maximum. ECF No. 77. The Court then ordered the United States to file an answer, motion, or other response. ECF No. 80. The United States subsequently filed a Response in Opposition on August 8, 2016. ECF No. 81. Petitioner then filed a number of motions, including a Motion to Stay, which this Court then construed as a Motion for Extension of Time to file a reply to the Government's response and granted Petitioner an additional twenty-one days to file a reply. ECF Nos. 82, 83, 84, 85. Petitioner timely filed a Reply. ECF No. 86.


         A. General Standard of Review

         Collateral review created by 28 U.S.C. § 2255 allows a prisoner in federal custody to challenge the legality of a federal sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the sentencing Court lacked jurisdiction; (3) the sentence imposed was in excess of the maximum amount authorized by law; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255. On such grounds, the petitioner may move the court to vacate, set aside, or correct a sentence. The Supreme Court has held that Section 2255 is the appropriate vehicle by which a federal prisoner may challenge both a conviction and the post-conviction sentence. Davis v. United States, 417 U.S. 333, 343-44(1974).

         A district court may dismiss a petitioner's Section 2255 motion in several clearly defined circumstances. The statute provides that, "[u]nless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney [and] grant a prompt hearing thereon[.]" 28 U.S.C. § 2255. Thus, as a corollary, a court may dismiss a § 2255 motion if it is clearly inadequate on its face and if the petitioner would not be entitled to relief assuming the facts alleged in the motion are true. If the motion when viewed against the record shows that the petitioner is entitled to no relief, the court may summarily deny the motion. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         When filing a Section 2255 petition to vacate, set aside, or correct a sentence, a petitioner "bears the burden of proving his grounds for collateral attack by a preponderance of the evidence." Hall v. United States. 30 F.Supp.2d 883, 889 (E.D. Va. 1998) (citing Vanater v. Boles, 377 F.2d 898, 900 (4th Cir. 1967)); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)). A motion under Section 2255 may not "do service for an appeal." United States v. Frady, 456 U.S. 152, 165(1982).[1]

         B. The Armed Career Criminal Act

         The ACCA imposes a mandatory minimum 15 year term of imprisonment upon any defendant who is convicted of being a felon in possession of a firearm and has three or more prior convictions for a "violent felony or serious drug offense." 18 U.S.C. § 924(e). The ACCA's definition of "violent felony" encompasses a "crime punishable by imprisonment for a term exceeding one year" that either (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another" (the force clause); (2) "is burglary, arson, or extortion, involves use of explosives" (the enumerated clause); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another" (the residual clause). 18 U.S.C. § 924(e)(2)(B). Johnson v. United States explained that the phrase "physical force" in the force clause means "violent force-that is, force capable of causing physical pain or injury to another person." 559 U.S. 133, 140 (2010). Johnson. 135 S.Ct. at 2563, also held that the residual clause was void because it was unconstitutionally vague. Welch then made the new right recognized in Johnson, 135 S.Ct. at 2563, applicable on collateral review. 136 S.Ct. 1257.

         In his Section 2255 Motion, Petitioner argues that after Johnson, most of his prior felony convictions no longer qualify as "violent felonies" under the ACCA. Typically, to determine whether an offense qualifies as a violent felony, a court must apply the categorical approach, whereby the court looks only at the elements of the offense and the fact of conviction. Taylor v. United States, 495 U.S. 575, 600 (1990). To qualify as a violent felony, the offense's "full range of proscribed conduct, including the least culpable proscribed conduct, " must fall within the definition in Section 924(e)(2)(B). United States v. King. 673 F.3d 274, 278 (4th Cir. 2012). In other words, a court must ignore the actual conduct that led to the conviction and consider only the elements of the offense.

         But in some instances a court may look beyond the elements of the offense, such as when the statute is divisible, listing elements in the alternative and thereby encompassing multiple crimes. In this instance, the court may apply the modified categorical approach. Mathis v. United States, 136 S.Ct. 2243, 2249 (2016). In employing this approach, the court "looks to a limited class of documents (for example, the indictment, jury instructions, or plea agreement and colloquy) to determine what crime, with what elements, a defendant was convicted of." Id. This approach "helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant's conviction." Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). This is because it still focuses "on the elements, rather than the facts, of a crime." Id.

         Shepard v. United States requires that evidence of the prior convictions "be confined to the records of the convicting court approaching the certainty of the record of conviction." 544 U.S. 13, 20, 23 (2005). The Supreme Court identified such sources as "the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant in which the factual basis for the plea was confirmed by the defendant, or to some comparable judicial record of this information." In Taylor, the Supreme Court had also identified jury instructions as a permissible source. 495 U.S. at 598. Together, Taylor and Shepard stand for the proposition that "without a charging document that narrows the charge to generic limits, the only certainty of a generic finding lies injury instructions, or bench-trial findings and rulings, or (in a pleaded case) in the defendant's own admissions or accepted findings of fact confirming the factual basis for a valid plea." Shepard. 544 U.S. at 25. Shepard also specifically prohibited consideration of police reports and complaint applications.[2] 544 U.S. at 16. See also United States v. Lopez-Collazo, 824 F.3d 453, 464 (4th Cir. 2016).

         The Government bears the burden of proving prior conviction for a violent felony by a preponderance of the evidence. United States v. Harcum, 587 F.3d 219, 222 (4th Cir. 2009), abrogated on other grounds by Lopez-Collazo, 824 F.3d 453. See also Foster. 662 F.3d 291, 296 (4th Cir. 2011) ("This is the 'actual evidence' we require the government to show in order to prove a predicate conviction under Shepard-approved documents.").


         Petitioner's PSR notes that at the time of sentencing, Petitioner qualified for an ACCA enhancement on the basis of six previous felony convictions. PSR, ECF No. 75, at 14. Those previous convictions were:

1. An April 5, 1971 conviction for attempted rape, for which Petitioner received a term of imprisonment of eight years in the Virginia State Penitentiary ("VSP"), id. at 5;
2. A conviction for maiming, for which Petitioner was arrested on December 29, 1975 and received a term of imprisonment of three years, which were then suspended, Id. at 6;
3. A May 20, 1979 conviction for maiming (specified in the PSR as "causing bodily injury . . . with the intent to maim, disfigure, disable or kill"), for which he received a term of imprisonment of seven years in the VSP, Id. at 7;
4. A conviction for shooting into an occupied dwelling, for which he was arrested on June 12, 1979 and received a term of imprisonment five years, Id.
5. A July 17, 1985 conviction for abduction, for which he received a term of imprisonment of ten years with seven years suspended (conditioned on ten years of good behavior and ...

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