Davis v. United States
| Decision Date | 01 September 2016 |
| Docket Number | Cr. No. 3:11-834-CMC |
| Citation | 205 F.Supp.3d 715 |
| Court | U.S. District Court — District of South Carolina |
| Parties | Lamont Terrell DAVIS, Defendant-Petitioner v. UNITED STATES of America, Plaintiff-Respondent. |
Robert C. Jendron, Jr., US Attorneys Office, Columbia, SC, for Plaintiff-Respondent.
Defendant, through his attorney, seeks relief pursuant to 28 U.S.C. § 2255. ECF No. 100. The Government filed a motion to dismiss or for summary judgment, as well as an opposition to Defendant's § 2255 motion. ECF Nos. 104, 105. On July 15, 2016, Defendant filed a response in opposition to the Government's motion for summary judgment as well as a cross motion for summary judgment. ECF Nos. 106, 107.
On July 19, 2011, Defendant was indicted for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). ECF No. 1. On October 17, 2011, Defendant entered into a written plea agreement to plead guilty to the charge. ECF No. 32. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. The same day, Defendant appeared before the court and after a thorough Rule 11 hearing, entered a guilty plea to felon in possession.
A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the Armed Career Criminal Act ("ACCA") and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's prior convictions for Possession with Intent to Distribute Cocaine (1999) and Possession with Intent to Distribute Crack Cocaine within a ½ mile proximity of a school (2005) were serious drug offenses, and qualified as predicate convictions for ACCA purposes. A prior conviction for Resisting Arrest with Assault on an officer was found to be a "violent felony offense" that qualified as a predicate conviction for the ACCA as well. See PSR ¶¶ 34, 41, 42, ECF No. 40.
Defendant objected to the resisting arrest with assault on an officer conviction counting as a predicate conviction for the ACCA. Defense counsel's objection stated that he was unable to determine which portion of the statute Defendant was convicted under: the lesser charge of resisting or the more serious charge of assault on an officer while resisting. ECF No. 40-1. The Probation Officer noted that Defendant was convicted of S.C. Code § 16-9-320(B), the subsection for resisting with assault on an officer, instead of subsection (A), the lesser included offense. Therefore, the Probation Officer included this offense as a violent felony for ACCA purposes.1
On March 7, 2012, Defendant appeared for sentencing. The court overruled Defendant's objections and sentenced him to 262 months' imprisonment. Defendant appealed his sentence, arguing that the district court erred by denying him a reduction for acceptance of responsibility.2 This court's decision was affirmed by the Fourth Circuit on August 16, 2012. ECF No. 76.
Defendant filed a § 2255 motion on April 8, 2013, arguing that 18 U.S.C. § 3231, the federal criminal jurisdiction statute, is unconstitutional and the Government had no jurisdiction to prosecute him. ECF No. 78. Finding that Defendant's argument was "wholly frivolous and foreclosed by law," the court granted the Government's motion to dismiss or for summary judgment and dismissed Defendant's § 2255 motion with prejudice. ECF No. 85.3
On June 27, 2013, the Fourth Circuit docketed an appeal from the denial of Defendant's § 2255 motion. No. 13–7015. After Defendant failed to file an informal brief, that appeal was dismissed for failure to prosecute. No. 13–7015, ECF No. 5 (4th Cir. Aug. 22, 2013).
On March 31, 2014, Defendant filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241. Davis v. Warden , No. 5:14–188–WTH–PRL (M.D.Fl. Mar. 31, 2014). Defendant argued that he pled guilty to a non-violent offense, resisting arrest with assault, which should not have been counted as a "violent felony" under the ACCA. No. 5:14–188–WTH–PRL, ECF No. 1. However, on May 19, 2016, Defendant's § 2241 petition was "dismissed without prejudice to his filing an application for leave to file a second or successive motion in the sentencing court under 28 U.S.C. § 2255." No. 5:14–188–WTH–PRL, ECF No. 18.
On June 19, 2014, Defendant filed a § 2244 motion with the Fourth Circuit for authorization to file a successive § 2255 motion. No. 14–299. Defendant argued that a new rule announced in Alleyne v. United States , 570 U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), entitled him to relief because "any element that increases the mandatory minimum [or maximum] sentence must be found by a jury, or admitted by defendant, must include ‘prior conviction.’ " No. 14–299, ECF No. 2 at 9. Defendant also argued that his "state conviction for common law resisting arrest with assault cannot serve as an ACCA predicate." Id. at 11. On July 1, 2014, the Fourth Circuit denied Defendant's § 2244 motion. No. 14–299, ECF No. 4.
On October 26, 2015, Defendant again filed a § 2244 motion with the Fourth Circuit, seeking authorization to file a successive § 2255 motion. Defendant now argued that he was entitled to relief under Johnson v. United States , 576 U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d (2015), and his prior conviction for resisting arrest should not qualify as a predicate offense for ACCA purposes after the residual clause was held unconstitutional. No. 15–388, ECF No. 2. His § 2244 motion was denied by the Fourth Circuit on May 3, 2016. No. 15–388, ECF No. 7.
Prior to filing the instant motion, Defendant filed another § 2244 motion with the Fourth Circuit. No. 16–9183. On June 21, 2016, he received permission to file a second or successive motion under § 2255. ECF No. 99. The instant motion under § 2255 was thereafter filed on June 21, 2016. ECF No. 100.
A conviction for felon in possession typically carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). However, if the accused has three or more previous convictions for certain types of felonies, he is subject to an enhanced minimum sentence of fifteen years imprisonment with a maximum term of life imprisonment. Title 18 U.S.C. § 924(e)(1) provides:
18 U.S.C. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is typically referred to as the "use of force" clause ("has as an element the use, attempted use, or threatened use of physical force against the person of another."). The first part of the second clause, § 924(e)(2)(B)(ii), lists specific offenses—burglary, arson, extortion, offenses involving use of explosives—and is commonly denoted as the "enumerated offense" clause. Finally, the portion of § 924(e)(2)(B)(ii) covering a conviction that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is generally referred to as the "residual clause."
On June 26, 2015, the Supreme Court held that the residual clause of the ACCA violates due process as it "denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson v. United States , 576 U.S. ––––, ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). By holding the residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those that qualify under the enumerated or force clauses. The residual clause can no longer support a defendant's classification as an armed career criminal.
On April 18, 2016, the Supreme Court decided Welch v. United States , 578 U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which held that the newly established right recognized in Johnson is retroactive to cases on collateral review, such as Defendant's case. Therefore, Defendant's § 2255 motion, filed within one year of the Johnson decision, is timely4 and ripe for resolution.
a. ACCA Discussion
Defendant has three predicate convictions which served to qualify him for the ACCA enhancement: two felony drug offenses and a resisting arrest with assault on an officer conviction. While Defendant's drug offenses were untouched by the Johnson ruling, his other predicate offense, resisting arrest with assault on an officer, was counted as a violent felony under the residual clause. The issue at hand is whether the resisting arrest with assault on an officer conviction also qualifies as an ACCA predicate conviction under the force clause, or only qualified under the now-defunct residual clause, in which case Defendant is no longer an armed career criminal.
In order to decide whether Defendant's conviction qualifies under the ACCA force clause, this court must determine whether resisting arrest with assault on an officer "has as an element the use, attempted use, or threatened use of physical force...
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