United States District Court, W.D. Virginia, Roanoke Division
MICHAEL E URBANSKI UNITED STATES DISTRICT JUDE.
Junmall J. Boyd 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 No. 70. The
government has moved to dismiss Boyd's § 2255
motion, ECF No. 82 & 83, and Boyd has responded. ECF No.
84. For the reasons that follow, the court will GRANT
Boyd's § 2255 motion and DENY the United States'
motion to dismiss.
November 17, 2008, a criminal judgment was entered sentencing
Boyd to a term of 180 months of incarceration for possession
of a firearm by a felon in violation of 18 U.S.C. §
922(g)(1). Because the court determined that Boyd 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
authomed under § 924(a)(2). The court calculated the
sentencing guideline range as being 180 to 210 months and
sentenced Boyd to serve the low end of that range in prison.
Presentence Investigation Report ("PSR") stated
that three of Boyd's prior convictions, referenced at
paragraphs 33, 34, and 36 of the PSR, qualified to enhance
his sentence under the ACCA. ECF No. 52, at ¶ 21. The
PSR listed those convictions as follows: Paragraph 33, a 1993
conviction for Pennsylvania burglary; Paragraph 35, a 2004
conviction for Pennsylvania burglary; and Paragraph 36, a
2004 conviction for Georgia burglary. Boyd made no objection
to the PSR, and the plea agreement and sentencing transcript
reflect that the parties agreed upon the statutory minimum
180-month sentence. ECF No. 37, at 1; ECF No. 91, at 3-4.
previously has filed three motions to vacate his sentence
under 28 U.S.C. § 2255. In his first petition, Boyd
argued that he was actually innocent of being an armed career
criminal based on the Supreme Court's holding in
Descamps v. United States, 133 S.Ct. 2276 (2013).
The district court held that Boyd could not establish that he
was factually innocent of the underlying burglary convictions
and denied his petition. ECF No. 58. Boyd's two
subsequent § 2255 petitions were dismissed as being
successive and lacking approval for filing from the court of
appeals. ECF Nos. 63, 66.
21, 2016, the Fourth Circuit Court of Appeals granted
Boyd's motion to file a second or successive § 2255
motion based on Johnson v. United States. 135 S.Ct.
2551 (2015) ("Johnson II"). ECF No. 69, and
Boyd filed the pending petition the same day. ECF No. 70. In
his petition, Boyd challenges the finding that his prior
burglary convictions meet the definition of a violent felony
under § 924(e).
government filed a motion to dismiss, in which it concedes
that Boyd's Pennsylvania burglary convictions do not
qualify as violent felonies under the ACCA. ECF No. 83, at 1,
3-4. The government argues that Boyd's claim nevertheless
must be dismissed, because it does not meet the standard of
28 U.S.C. § 2255(h) for second or successive § 2255
petitions, as it was based on the Supreme Court's
decisions in Taylor v. United States. 495 U.S. 575
(1990), and Descamps, rather than Johnson
court held a hearing on November 29, 2016, and this matter is
now ripe for adjudication.
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. §
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
[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 die ...