Self v. United States, CIVIL CASE NO. 1:16-cv-00220-MR

• Docket Number: CRIMINAL CASE NO. 2:08-cr-00028-MR-1,CIVIL CASE NO. 1:16-cv-00220-MR
• Decision Date: 04 November 2017
• Court: U.S. District Court — Western District of North Carolina
• Parties: RODNEY LAMAR SELF, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

RODNEY LAMAR SELF, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

CIVIL CASE NO. 1:16-cv-00220-MR
CRIMINAL CASE NO. 2:08-cr-00028-MR-1

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION

November 4, 2017

MEMORANDUM OF DECISION AND ORDER

THIS MATTER is before the Court on the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Doc. 1], as supplemented [Doc. 3], and the Government's Motion to Dismiss [Doc. 7]. Petitioner is represented by Joshua Carpenter of the Federal Defenders of Western North Carolina.

I. BACKGROUND

On August 5, 2008, the Petitioner Rodney Lamar Self was charged with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). [Criminal Case No. 2:08-cr-00028 ("CR"), Doc. 1]. The Petitioner pleaded guilty to the charge pursuant to a written plea agreement. [CR Doc. 12 at ¶ 1]. Based on his eight prior convictions for armed robbery in Georgia,

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the Court found the Petitioner to be an armed career criminal pursuant to 18 U.S.C. § 924(e) and sentenced him to a term of 180 months' imprisonment. [CR Doc. 25]. The Petitioner appealed, and the Fourth Circuit affirmed this Court's judgment. United States v. Self, 393 F. App'x 47 (4th Cir. 2010).

In August 2011, the Petitioner filed a motion to vacate pursuant to 28 U.S.C. § 2255 in which he raised, among other things, various ineffective assistance of counsel claims. This Court denied and dismissed the motion to vacate in September 2011. [Civil Case No. 2:11-cv-00030, Doc. 5].

In December 2013, the Petitioner filed a second motion to vacate, challenging his armed career criminal designation on the grounds that a Georgia state court had vacated his armed robbery convictions. [See Civil Case No. 2:13-cv-00049, Doc. 4 at 4-5]. This Court denied the motion to vacate as untimely under § 2255(f)(4), finding that the Petitioner did not act with due diligence in pursuing the vacatur of his eight Georgia armed robbery convictions. [Id., Doc. 10 at 8-12 (order on motion for reconsideration of denial of motion to vacate)].

After receiving authorization from the Fourth Circuit to file a successive habeas petition, the Petitioner filed the present motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his sentence was improperly enhanced under the ACCA in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

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[Doc. 1]. The Petitioner, through counsel, filed a supplement to the motion to vacate on July 20, 2016. [Doc. 3]. On October 31, 2016, the Government filed a motion to dismiss the Petitioner's motion, contending that the Petitioner waived his right to seek collateral review of his sentence, except on bases not asserted in his motion; that the Petitioner's claim is procedurally defaulted; and that, in any event, Georgia armed robbery still qualifies as a violent felony for purposes of the ACCA. [Doc. 7]. On November 4, 2016, the Petitioner filed a response to the Government's motion to dismiss. [Doc. 8]. Having been fully briefed, this matter is ripe for disposition.

II. STANDARD OF REVIEW

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with "any attached exhibits and the record of prior proceedings . . ." in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by the Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

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III. DISCUSSION

The ACCA provides for a mandatory minimum term of fifteen years' imprisonment for any defendant who violates 18 U.S.C. § 922(g) and who has three previous convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). When the Petitioner was sentenced, a "violent felony" was defined to include any crime punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the "force clause"]; or

(ii) is burglary, arson, or extortion, involves use of explosives [the "enumerated offense clause"], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the "residual clause"].

Id. § 924(e)(2)(B).

In Johnson, the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague. Johnson, 135 S. Ct. at 2563. As a result of Johnson, a defendant who was sentenced to a statutory mandatory minimum term based on a prior conviction that satisfies only the residual clause of the "violent felony" definition is entitled to relief from his sentence. See United States v. Newbold, 791 F.3d 455, 460 (4th Cir. 2015) (holding that the improper imposition of an ACCA-enhanced sentence is an error that

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is cognizable in a motion to vacate filed under 28 U.S.C. § 2255). As the offense of armed robbery does not fall within the enumerated offense clause, the Petitioner's prior convictions may still qualify as "violent felonies" only if the offense of armed robbery under Georgia law "has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i).

The Supreme Court has defined "physical force" as used in the ACCA as "violent force -- that...