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United States v. Hodges

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

April 27, 2017

ERNEST F. HODGES JR., Petitioner.



         Petitioner Ernest F. Hodges, Jr. 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 government has moved to dismiss Hodges' § 2255 motion. The court heard oral argument on November 17, 2016 and has reviewed the memoranda submitted by the parties. See ECF Nos. 155, 158, 165 and 166. For the reasons that follow, the court will GRANT Hodges' § 2255 motions (ECF Nos. 155 & 158) and DENY the United States' motion to dismiss (ECFNo. 165).[1]


         Following a jury trial, a criminal judgment was entered sentencing Hodges to concurrent terms of 220 months of incarceration for possession of a firearm by a felon (Count 1) and possession of ammunition by a felon (Count 2) in violation of 18 U.S.C. § 922(g)(1). ECF No. 42. Because the court determined that Hodges had three of 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 210 to 262 months and sentenced Hodges to serve concurrent terms of 220 months.

         The Presentence Investigation Report ("PSR"), as written at the time of sentencing, indicated in paragraph 19 that the ACCA enhancement should apply because of Hodges' prior convictions for Virginia statutory burglary in the Roanoke County Juvenile & Domestic Relations Court on December 17, 1965 (paragraph 23), for breaking and entering in the Franklin County Circuit Court on July 10, 1972 (paragraph 26), and for distribution of heroin in the Roanoke City Circuit Court on October 25, 2000 (paragraph 46). ECF No. 86, at 5. At sentencing, Hodges voiced no objections to the PSR, including its assessment that the ACCA enhancement applied. ECF No. 86, at 22; ECF No. 68, at 2.

         The sentencing judge later ordered that the PSR be amended to correct a clerical error in paragraph 19. See ECF No. 111. The amended PSR reflects that Hodges' ACCA-enhancing convictions include Virginia statutory burglary in Roanoke County Circuit Court on March 30, 1971 (paragraph 25), breaking and entering in the Franklin County Circuit Court on July 10, 1972 (paragraph 26), and distribution of heroin in the Roanoke City Circuit Court on October 25, 2000 (paragraph 46). ECF No. 114.

         Hodges appealed his judgment, which was affirmed by the Fourth Circuit Court of Appeals on February 21, 2007. ECF No. 70. Over the ensuing years, Hodges has made various attempts to overturn his conviction, all without success. By order dated June 1, 2016, the Fourth Circuit granted authorization for Hodges to file a second or successive motion under 28 U.S.C. § 2255. ECF No. 154. Hodges filed his pro se § 2255 motion that same day, which was amended by counsel on August 5, 2016. ECF Nos. 155, 158.

         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), Hodges' ACCA enhancement for his prior convictions for Virginia statutory burglary and breaking and entering remains lawful.[2]


         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 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").[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

18 U.S.C. § 924(e)(2)(B) ("Subsection Q"). 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. . . .

Id. ("Subsection (ii)")- Subsection (ii)-the only part of the statute at issue in Hodges' 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 bom 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, die Supreme Court determined mat neimer attempted burglary nor Florida's burglary statute was properly considered as an enumerated offense under Subsection (ii). IcL 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 widiin 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 question application of the Act to die four enumerated offenses, or die remainder of the Act's definition of a violent felony.").

         Whether the Virginia crime of statutory burglary falls widiin the enumerated clause portion or die residual clause portion of Subsection (ii) is dispositive in determining whether Johnson II reaches Hodges' 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 die enumerated offenses in Subsection (ii) of § 924(e)(2)(B), Hodges' 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 Hodges seeks relief, 28 U.S.C. § 2255(f), contains a one-year statute of limitations. The government argues diat Hodges' habeas petition is untimely as it was not filed within one year of die date his judgment became final. 28 U.S.C. § 2255(f)(1). Hodges 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 die 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 tiiat 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 Hodges' case. Hodges 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, Hodges' convictions properly could have been deemed ACCA violent felonies only by way of the residual clause. Hodges' residual clause enhancement was not subject to attack until Johnson II was decided, after which he had one year to file his § 2255 claim. By standing order entered on August 3, 2015, the court appointed the Federal Public Defender to represent Hodges. ECF No. 151. Hodges filed his § 2255 petition on June 1, 2016, less than one year after Johnson II was decided.[5] ECF No. 51. As such, Hodges' petition meets the one-year period of limitation in § 2255(f).


         The government next argues that Hodges' claim is procedurally defaulted because he did not previously preserve the issue. Hodges 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 Hodges' 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 explicitiy 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 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. "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, Hodges 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 Hodges' 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 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 § 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 that "use" is synonymous with mere "possession."

Bousley, 523 U.S. at 622 (internal citations omitted). To support its holding that futility cannot constitute cause, the Bousley court quoted Engle v. Isaac, 456 U.S. 107, 130 n.35 (1982), for the proposition that "futility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.'" But this case is a far cry from Engle. There the defendants did not object to a jury instruction that required the defendant in an Ohio murder case to prove self-defense. The Court noted that its decision in In re Winship. 397 U.S. 358 (1970), decided four and one-half years before the first of defendants' criminal trials, "laid the basis for their constitutional claim, " that the prosecution should bear the burden of disproving an affirmative defense. Engle, 456 U.S. at 131. "Where the basis of a constitutional claim is available, and other defense counsel have perceived and litigated that claim, the demands of comity and finality counsel against labeling alleged unawareness of the objection as cause for procedural default." Id. at 134.[6]

         Nor does this case resemble the circumstances facing the Fourth Circuit in United States v. Pettiford. 612 F.3d 270 (4th Or. 2010). There, defendant had at the time of sentencing a basis to challenge two of his predicate convictions, yet chose not to do so. Nothing about Pettiford's subsequent habeas challenge to those convictions concerned the situation presented here, where the claim springs from a novel change of law made retroactive by the Supreme Court on ...

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