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Thompson v. United States

United States District Court, N.D. Iowa, Central Division

September 15, 2017

BRAUN NATHAN THOMPSON, Movant,
v.
UNITED STATES OF AMERICA.

          ORDER REGARDING 28 U.S.C. § 2255 MOTION

          LINDA R. READER JUDGE

         I. INTRODUCTION

         This matter appears before the court on the movant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). The movant filed such motion on April 28, 2016. In his § 2255 motion and related briefing (civil docket nos. 1 & 19), the movant claims that he is entitled to relief under the recent United States Supreme Court decision in Johnson v. United States, __U.S.__, 135 S.Ct. 2551 (2015). The government disputes that the movant is entitled to relief under 28 U.S.C. § 2255 (civil docket no. 20).

         II. FACTS

         A jury found the movant guilty of count 1, being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) & 924(e), count 2, possessing an unregistered firearm in violation of 26 U.S.C. §§ 5841, 5861(d) & 5871, and count 3, being a felon in possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). The court ordered a pre-sentence report to be prepared. The parties filed sentencing memoranda (criminal docket nos. 76, 78 & 85). The court determined that the movant qualified as an armed career criminal and calculated a sentencing guidelines range of 262 to 327 months imprisonment based on a total adjusted offense level of 34 and a criminal history category VI. On October 30, 2004, the court determined that the movant qualified as an armed career criminal and, after departing upward, sentenced the movant to a term of 420 months imprisonment on count 1 and count 3 and a term of 120 months imprisonment on count 2. It ordered the sentences to be served concurrently to one another.

         III. LEGAL STANDARD

         A prisoner in custody under sentence of a federal court is able to move the sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) “that the 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”; (3) “that the sentence was in excess of the maximum authorized by law”; or (4) “[that the judgment or sentence] is otherwise subject to collateral attack.” Id.; see also Hill v. United States, 368 U.S. 424, 426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be claimed); Watson, 493 F.3d at 963 (same); Lee v. United States, 501 F.2d 494, 499-500 (8th Cir. 1974) (clarifying that subject matter jurisdiction exists over enumerated grounds within the statute); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying scope of 28 U.S.C. § 2255). If any one of the four grounds is established, the court is required “to vacate and set aside the judgment and [it is required to] discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         When enacting 28 U.S.C. § 2255, Congress “intended to afford federal prisoners a remedy identical in scope to federal habeas corpus.” Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)) (internal quotation mark omitted). Although it appears to be broad, 28 U.S.C. § 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.” Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, 28 U.S.C. § 2255 is intended to redress constitutional and jurisdictional errors and, apart from those errors, only “fundamental defect[s] which inherently [result] in a complete miscarriage of justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.” Hill, 368 U.S. at 428; see also Sun Bear, 644 F.3d at 704 (clarifying that the scope of 28 U.S.C. § 2255 is severely limited and quoting Hill, 368 U.S. at 428); United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised for the first time on direct appeal and, if uncorrected, would result in a complete miscarriage of justice.” (citing Poor Thunder v. United States, 810 F.2d 817, 821 (8th Cir. 1987))). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982) (making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service for an appeal). Consequently, “an error that may justify reversal on direct appeal will not necessarily support a collateral attack on a final judgment.” Id. (quoting Addonizio, 442 U.S. at 184).

         IV. ANALYSIS

         The parties dispute whether the movant has enough prior qualifying convictions to be subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). The movant argues that all five of his prior convictions do not qualify as predicate felonies and, therefore, his sentence exceeds the non-ACCA statutory maximum. The government argues that relief is not available under 28 U.S.C. § 2255 because the movant still has three convictions that qualify as violent felonies for purposes of the ACCA.

         Under the ACCA, a defendant convicted of being a felon in possession of a firearm faces more severe punishment if the defendant has three or more previous convictions for a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines a violent felony as any crime punishable by imprisonment for a term exceeding one year that: (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion, involves use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These definitions of “violent felony” fall into three respective categories: (1) the elements clause; (2) the enumerated-crimes clause; and (3) and the residual clause.

         In Johnson, the Supreme Court addressed the constitutionality of the residual clause; the Supreme Court held that “the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to the defendant and invites arbitrary enforcement by judges.” __ U.S. at__, 135 S.Ct. at 2557. Shortly after invalidating the residual clause, the Supreme Court concluded in Welch v. United States that Johnson announced a substantive rule that applied retroactively on collateral review. __ U.S.__, __, 136 S.Ct. 1257, 1265 (2016). Hence, under Johnson and Welch, a prior conviction may not be used as a predicate ACCA offense if it falls under 18 U.S.C. § 924(e)(2)(B)'s invalidated residual clause.

         The Supreme Court, however, clarified that the ACCA's other two clauses, namely, the elements clause and the enumerated-crimes clause, remain viable. See Johnson__, U.S. At __, 135 S.Ct. at 2563 (“Today's decision does not call into question application of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA's] definition of a violent felony.”); accord United States v. Sykes, 844 F.3d 712, 716 (8th Cir. 2016). Thus, application of Johnson and Welch negates the use of a felony unless it qualifies as an ACCA predicate without relying on the residual clause. “[E]ven if a defendant's prior conviction was counted under the residual clause, courts can now consider whether that conviction counted under another clause of the ACCA.” In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (citing Welch, __ U.S. at__, 136 S.Ct. at 1268). The movant must prove that he was sentenced using the residual clause and that the use of that clause made a difference in the sentence. See id. at 1273; see also Stanley v. United States, 827 F.3d 562, 566 (7th Cir. 2016) (stating that a “proponent of collateral review” must “produce evidence demonstrating entitlement to relief”); In re Cooks, No. 16-14444-J, 2016 U.S. App. LEXIS 23767, *8 n.2, (11th Cir. Aug. 9, 2016) (emphasizing that burden is on movant); Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir. 1992) (citing Kress v. United States, 411 F.2d 16, 20-21 (8th Cir. 1969), for the proposition that the burden of proof is on petitioner in § 2255 proceeding); Day v. United States, 428 F.2d 1193, 1196 (8th Cir. 1970) (providing that petitioner bears burden of proof on each ground asserted in § 2255 motion); Taylor v. United States, 229 F.2d 826, 832 (8th Cir. 1956) (“Because the statutory proceeding is a collateral attack upon the judgment of conviction, the burden is on the [movant] to establish a basis for relief under some one or more of the grounds set forth in [§ 2255].”).

         The undisputed facts in the movant's pre-sentence report refer to his 1979 conviction for aggravated ...


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