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United States v. Grogans

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

March 9, 2017



          Michael F. Urbanski United States District Judge.

         Petitioner Steve Edward Grogans 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). ECF Nos. 88 & 91. The government has moved to dismiss Grogans' § 2255 motion, ECF No. 94, and Grogans has responded. ECF No. 95. For the reasons that follow, the court will GRANT Grogans' § 2255 motion and DENY the United States' motion to dismiss.[1]


         On August 8, 2011, a criminal judgment was entered sentencing Grogans to a term of 300 months of incarceration for possession of a firearm by a felon in violation of 18 U.S.C. § 922(g)(1).[2] Because the court determined that Grogans 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 than the 120-month maximum sentence otherwise authorized under § 924(a)(2). The court calculated the sentencing guideline range as being 180 to 210 months but varied upwards to 300 months based on the "criminal behavior that spanned across defendant's life." ECF No. 36; see also Sent. Tr., ECF No. 46.

         The court enhanced Grogans' sentence under § 924(e) based on convictions listed in seven paragraphs of the Presentence Investigation Report ("PSR"): Paragraphs 27, 28, 29 and 30, reflecting four 1984 convictions for Virginia statutory burglary;[3] Paragraphs 31 and 32, reflecting two 1987 convictions for Virginia statutory burglary; and Paragraph 34, a 1993 conviction for Virginia statutory burglary.[4] Grogans made no objection to the PSR. Grogans appealed his 300-month sentence, but his criminal judgment was affirmed on appeal. ECF No. 48.

         On November 4, 2013, Grogans filed his first motion to vacate his sentence under 28 U.S.C. § 2255, alleging in part that his counsel provided ineffective assistance by failing to object to the use of his previous state convictions for ACCA enhancement purposes. The court denied this motion, ECF No. 61, and it was affirmed on appeal, ECF No. 82.

         On June 24, 2016, Grogans filed an application with the Fourth Circuit Court of Appeals for leave of court to file a second or successive petition under 28 U.S.C. § 2255. The motion was granted by the Fourth Circuit on July 7, 2016, and his petition was filed that day in district court. ECF No. 91.

         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. 1257 (2016), Grogans' ACCA enhancement for his prior convictions remains lawful.


         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:

[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. . . .

Id. § 924(e)(2)(B) (strikeout added).

         In 2015, the Supreme Court invalidated the language stricken above after finding it void for vagueness. Johnson v. United States. 135 S.Ct. 2551 (2015) ("Johnson II").[5] 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

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

(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. ("Subsection (ii)"). Subsection (ii)-the only part of the statute at issue in Grogans' 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.[6]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 question 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 Grogans' 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), Grogans' claim is both timely and procedurally proper, and his enhanced sentence is unlawful in light of Johnson II.


         The federal habeas corpus statute under which Grogans seeks relief, 28 U.S.C. § 2255(f), contains a one-year statute of limitations. The government argues that Grogans' 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). Grogans 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 that right has been newly recognized by the Supreme Court and made retroactive applicable to cases on collateral review." In Welch, the Supreme Court held that its decision in Johnson II announced a new substantive rule that has retroactive effect in cases on collateral review.

         The government responds that Johnson II has nothing to do with Grogans' case. Grogans was convicted of seven 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, Grogans' convictions properly could have been deemed ACCA violent felonies only by way of the residual clause. Grogans' residual clause enhancement was not subject to attack until Johnson II was decided, after which he had one year to file his § 2255 claim. Grogans filed his motion to file a second or successive § 2255 petition with the Fourth Circuit on June 24, 2016, less than one year after Johnson II was decided.[7] As such, Grogans' petition meets the one-year period of limitation in § 2255(f).


         The government next argues that Grogans' claim is procedurally defaulted because he did not previously preserve the issue. Grogans argues that 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 Grogans' 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 explicitly overrule one of our precedents. Second, a decision may overtur[n] 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 disapprov[e] a practice this Court arguably has sanctioned in prior cases.

Id. at 17 (brackets in original) (internal quotation marks 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. "Consequently, the failure of a defendant's attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the cause requirement." Id.

         Until the Supreme Court overruled James in Johnson II, Grogans 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 amid-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 Grogans' 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 die 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 constituted use under 18 U.S.C. § 924(c)(1). There the Court noted that:

The argument that it was error for the District Court to misinform petitioner as to the statutory elements of ยง 924(c)(1) was most surely not a novel one. Indeed, at the time of petitioner's plea, the Federal Reporters were replete with cases involving challenges to the notion ...

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