Buie v. United States
| Decision Date | 08 September 2017 |
| Docket Number | 05-CR-664 (RCC),15-CV-3945 (JPO) |
| Parties | DAVID BUIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Southern District of New York |
Pursuant to 28 U.S.C. § 2255, Petitioner David Arthur Buie seeks relief from a sentence imposed under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Buie is currently serving a fifteen-year sentence under ACCA's sentencing enhancement provision, which imposes a fifteen-year mandatory minimum sentence on defendants who have committed three prior predicate offenses. The applicability of ACCA's fifteen-year minimum turns on whether two of Buie's three prior convictions—both for robbery in the first degree under New York law—constitute "violent felonies" under ACCA. Because this Court concludes that at least one of Buie's prior convictions does not, the petition is granted.
ACCA mandates imposition of a fifteen-year minimum sentence on any defendant who "has three previous convictions . . . for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924(e)(1). The statute defines "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that either (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another," id. § 924(e)(2)(B)(i) (the "force clause"); (2) "is burglary, arson, or extortion, [or] involves use of explosives," id. § 924(e)(2)(B)(ii); or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another," id. (the "residual clause").
In September 2006, Buie pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On December 12, 2006, he was sentenced by Judge Richard C. Casey to a term of imprisonment of 180 months (fifteen years). (Dkt. No. 79 at 2; Dkt. No. 50.) In the typical case, the statutory maximum for violation of § 922(g) is 120 months (ten years), see 18 U.S.C. § 924(a)(2), but Buie's sentence was enhanced under ACCA. Buie's ACCA enhancement was based on three predicate prior offenses: (1) a May 22, 1995, New Jersey conviction for manufacturing, distributing, or dispensing heroin in the second degree ("1995 Drug Conviction"); (2) a July 26, 1982, conviction for first-degree robbery under New York Penal Law § 160.15 ("1982 Robbery Conviction"); and (3) a January 9, 1979, conviction for first-degree robbery, also under § 160.15 ("1979 Robbery Conviction").
Buie filed three habeas petitions before filing the one currently before the Court. He filed his first § 2255 habeas petition on March 5, 2007, arguing that his 1995 Drug Conviction should not have been considered a serious drug offense under ACCA. Judge Alvin K. Hellerstein denied the petition on July 24, 2009, Buie v. United States, No. 07 Civ. 1865 (S.D.N.Y. July 24, 2009), aff'd, No. 09-4293 (2d Cir. Mar. 10, 2010), and subsequently denied Buie's motion for reconsideration, Buie v. United States, No. 07 Civ. 1865 (S.D.N.Y. Sept. 18, 2013). Buie filed a second § 2255 petition on August 25, 2015, in the United States District Court for the Western District of Missouri. Buie v. Sanders, 15 Civ. 03391 (W.D. Mo. Aug. 25, 2015). The court dismissed Buie's petition for lack of jurisdiction, and the United States Court of Appeals for the Eighth Circuit affirmed. Buie v. Sanders, 16 Civ. 1185 (8th Cir. May 31, 2016). On April 28, 2015, Buie filed a third petition in which he argued that his conviction was invalid because it wasobtained in violation of his right to effective assistance of counsel. The Second Circuit denied that petition on November 17, 2015. Buie v. United States, 15 Civ. 2114 (2d Cir. Nov. 17, 2016).
On June 21, 2016, Buie sought leave to file his current petition. The Second Circuit granted that motion and transferred the proceeding to this Court. (Dkt. No. 76.)
Whether Buie is subject to a fifteen-year statutory minimum sentence or a ten-year statutory maximum sentence hinges on an interpretation of § 924(e) of ACCA. Buie argues that based on the Supreme Court's decisions in Johnson v. United States, 135 S. Ct. 2551 (2015) ("2015 Johnson"), and Johnson v. United States, 130 S. Ct. 1265 (2010) ("2010 Johnson"), his convictions for robbery in the first degree no longer qualify as predicate violent felonies.
Buie, who is now 63 years old, has been in custody since May 2005. (Dkt. No. 80 at 1.) He has already served over twelve years of his sentence. (Id.) The stakes are high: If Buie is right, then his sentence should not have been enhanced under § 924(e), and he has already served time in excess of § 922(g)'s statutory ten-year maximum.
The Government raises three procedural challenges to Buie's motion.
First, the Government argues that Buie's motion is barred by 28 U.S.C. § 2244(a), which mandates dismissal "if it appears that the legality of such detention has been determined . . . on a prior application for a writ of habeas corpus." However, Buie's current claim is not encompassed by his prior habeas petitions. Although his third petition filed with the Second Circuit referenced 2015 Johnson, it did not include information about his prior convictions except for a reference to his 1995 Drug Conviction in New Jersey. On November 17, 2015, the Second Circuit denied Buie's request to file a successive petition, stating "[2015] Johnson doesnot apply because Petitioner was not sentenced under ACCA's 'residual clause.'" However, particularly in light of the fact that Buie's petition referenced only his prior drug conviction, there is no indication that the Second Circuit panel considered whether Buie's other convictions were properly considered predicates under ACCA.
Moreover, on July 19, 2016, the Second Circuit granted Buie leave to file the instant motion, finding that he "has made a prima facie showing that he has satisfied the successive motion requirements." (Dkt. No. 76 at 1.) In transferring the proceeding to this Court, the Second Circuit directed this Court to address "whether the Supreme Court's decision in [2015] Johnson entities Petitioner to relief." (Id.) The Second Circuit's July 2016 ruling indicates that its 2015 ruling on Buie's prior motion did not constitute a "determin[ation]" on "the legality of [Buie's] detention" with respect to this issue. 28 U.S.C. § 2244(a). The former ruling overrides the latter and constitutes law of the case.
Second, the Government contends that Buie's motion is barred by 28 U.S.C. § 2255(h)(2), which requires that a successive habeas petition address "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." Of course, the Supreme Court's decision in 2015 Johnson—which invalidated ACCA's "residual clause" as unconstitutionally vague—announced a new rule of constitutional law, as the Supreme Court held in Welch v. United States, 136 S. Ct. 1257, 1265 (2016). The Government argues, however, that Buie is actually relying not on 2015 Johnson, but rather on 2010 Johnson—a case involving statutory interpretation rather than constitutional law. The Government's premise is that "Buie was not sentenced under ACCA's residual clause, and thus 2015 Johnson has no applicability to his case." (Dkt. No. 79 at 9.)
The Court disagrees. It was only the confluence of 2010 Johnson and 2015 Johnson that allowed Buie to make the argument he makes here. Indeed, as Buie's counsel points out, a § 2255 motion filed immediately after 2010 Johnson would have been pointless, if not frivolous. (Dkt. No. 80 at 24.) That is because before 2015 Johnson, courts had held—and lawyers had reasonably believed—that substantive crimes such as robbery and larceny were swept into ACCA's predicate offenses by the extremely broad (and vague) residual clause. See, e.g., United States v. Carmichael, 408 F. App'x 769, 770-71 (4th Cir. 2011) (); United States v. Davis, 487 F.3d 282, 285-87 (5th Cir. 2007) (); United States v. Mitchell, 743 F.3d 1054, 1060-63 (6th Cir. 2014) (); United States v. Prince, 772 F.3d 1173, 1176-78 (9th Cir. 2014) (); see also United States v. Thrower, 584 F.3d 70, 72 (2d Cir. 2009) ().
The Government's assertion that Buie "was not sentenced under ACCA's residual clause" is neither obviously true nor necessarily dispositive. At Buie's sentencing in 2006, neither the parties nor Judge Casey expressed a view as to which clause rendered Buie's two prior robbery convictions "violent felonies" under ACCA; they appear to have simply assumed that those convictions qualified as violent felonies, whether under the force clause or the residual clause. (See Dkt. No. 80-1.) Until its invalidation in 2015, the residual clause always served as an alternative basis for treating robbery and other offenses as violent felonies, in particular cases if not categorically.
This Court agrees with those courts that have rejected similar procedural arguments and have concluded that the type of hybrid 2010/2015 Johnson habeas claim made by Buie relies, atleast in part, on the new constitutional rule announced in 2015 Johnson. See United States v. Winston, 850 F.3d 677, 681-82 & n.4 (4th Cir. 2017); In re Chance, 831 F.3d 1335, 1338-40 (11th Cir. 2016); Massey v. United States, 2017 WL 2242971, *3 (S.D.N.Y. 2017); Diaz v. United States, 2016 WL 4524785, *5 (W.D.N.Y. 2016); United States v. Ladwig, 192 F. Supp. 3d 1153, 1158-61 (E.D. Wash. 2016).
The Government's final procedural argument is that Buie's motion is untimely. This argument fails for the same reasons as the previous argument. Under 28...
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