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United States v. Pendleton

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

October 17, 2017

UNITED STATES OF AMERICA,
v.
LEWIS LEON PENDLETON II, Defendant.

          AMENDED MEMORANDUM OPINION [1]

          Glen E. Conrad United States District Judge

          Defendant Lewis Leon Pendleton II, through counsel, has filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255. He argues that following the decision in Johnson v. United States, 135 S.Ct. 2551 (2015), his sentence for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g), is unlawful because he no longer has the requisite number of convictions to support an enhanced sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). After careful review of the record, and in light of recent precedent from the United States Supreme Court and the United States Court of Appeals for the Fourth Circuit, the court will grant Pendleton's § 2255 motion.

         I.

         On September 6, 2007, a federal grand jury indicted Pendleton for being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) ("Count One"), and for knowingly possessing a stolen firearm, in violation of 18 U.S.C. §§ 922(j) ("Count Two"). Pendleton pleaded guilty, pursuant to a written plea agreement, to Count One. Plea Agree, at 2, ECF No. 28. The plea agreement provided that Pendleton might be treated as an armed career criminal and that his federal sentence should be ordered to run concurrently with the sentence that he was already serving in Virginia state court. Id. at 4-5.

         The Presentence Investigation Report ("PSR"), prepared in anticipation of sentencing, recommended that Pendleton be classified as an armed career criminal under the ACCA, 18 U.S.C. §§ 922(g) and 924(e). PSR ¶ 25, ECF No. 46. The PSR listed the following predicates to support the ACCA enhancement: a 1980 Virginia conviction for burglary; a 1981 Virginia conviction for three counts of burglary; a 1985 California conviction for second degree burglary; and a 1986 Virginia conviction for burglary. Id. ¶¶ 31, 32, 35, and 37. Because of the armed career criminal designation, the PSR recommended an increased guideline imprisonment range of 180 to 210 months. Id. ¶68.

         The court adopted the PSR recommendation, and sentenced Pendleton to a total of 180 months' incarceration, the statutory mandatory minimum, and ordered that the sentence run concurrently with Pendleton's Virginia state sentence. Judgment at 2, ECF No. 36. Pendleton did not appeal. Following his sentencing, Pendleton was returned to Virginia custody until he completed his Virginia sentence in July 2015. He was then transferred to federal custody to serve the remainder of his federal sentence.

         On August 16, 2017, Pendleton filed a § 2255 motion. ECF No. 39. He argues that he is entitled to be resentenced because, following Johnson, his Virginia burglary convictions no longer support his enhanced sentence under the ACCA.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Pendleton bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958).

         A. Statute of Limitations

         A petition under § 2255 must adhere to strict statute of limitations requirements before a court may address the merits of the arguments raised. Generally, a petitioner must file a § 2255 motion within one year from the date on which his judgment of conviction became final. 28 U.S.C. § 2255(f)(1). However, the statute allows for an additional one-year limitations period from the date on which the Supreme Court recognizes a new right made retroactively applicable on collateral review. Id. at § 2255(f)(3).

         Pendleton filed his § 2255 motion on August 16, 2017, more than one year from the date of his final judgment in 2008. In addition, he filed more than one year from the Supreme Court's decision in Johnson, 135 S.Ct. 2551, which issued on June 26, 2015. Pendleton argues that he has good reason for failing to file within the applicable deadlines and that the court should equitably toll the limitations period, an argument the government does not oppose. The court agrees.

         Equitable tolling is appropriate in limited circumstances. It is available in "those rare instances where-due to circumstances external to the party's own conduct-it would be unconscionable to enforce the limitation period against the party and gross injustice would result." Harris v. Hutchinson, 209 F.3d 325, 330 (4th Cir. 2000). Although granted sparingly, application of the doctrine depends on the facts and circumstances of each case, and "does not lend itself to bright-line rules." Id. (internal quotation marks omitted). Pendleton's case presents the type of extraordinary circumstances that allows for equitable tolling.

         At the time that the Johnson decision issued, Pendleton was in a state facility, serving his concurrent federal and state sentences. On August 3, 2015, this court entered a Standing Order appointing the Federal Public Defender for the Western District of Virginia ("FPD") to represent any defendant who may qualify for federal habeas relief in light of Johnson. Standing Order 2015-5 (W.D. Va. Aug. 3, 2015). The court obtained a list of defendants sentenced under the ACCA from the Federal Bureau of Prisons ("BOP"). Pendleton was omitted from the list because he was not in federal custody at that time. § 2255 Mot. Ex. 1, ECF No. 39-1. The BOP list was used by the FPD to determine which defendants might be entitled to relief. Neither the FPD nor the government realized that the BOP list might exclude defendants, like Pendleton, who were serving active ACCA sentences outside of a BOP facility. Pendleton explained that he learned of the Johnson decision only in the late spring or early summer of 2017, when he heard other inmates in the prison library discussing it. He then contacted the FPD, which filed the instant petition on Pendleton's behalf. Because of the court's Standing Order, the burden of identifying potential grounds for a ยง 2255 motion, normally the ...


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