Taylor v. United States

• Decision Date: 30 November 2016
• Docket Number: No. 1:16–CV–149 CAS,1:16–CV–149 CAS
• Citation: 223 F.Supp.3d 912
• Parties: Eddie TAYLOR, Jr., Movant, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

223 F.Supp.3d 912

Eddie TAYLOR, Jr., Movant,

v.UNITED STATES of America, Respondent.

No. 1:16–CV–149 CAS

United States District Court, E.D. Missouri, Southeastern Division.

Signed November 30, 2016

Jennifer L. Booth, Scott F. Tilsen, Federal Public Defender, Cape Girardeau, MO, for Movant.

Keith D. Sorrell, Larry H. Ferrell, Office of U.S. Attorney, Cape Girardeau, MO, Tiffany G. Becker, Office of U.S. Attorney, St. Louis, MO, for Respondent.

MEMORANDUM AND ORDER

CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE

This matter is before the Court on movant Eddie Taylor, Jr.'s motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, based on Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson held that the Armed Career Criminal Act's ("ACCA")¹ residual clause is unconstitutional. The government opposes the motion, arguing that Johnson does not affect movant's sentence and he remains an armed career criminal. The government also argues that movant's motion actually seeks relief based on Descamps v. United States , ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), and Mathis v. United States , ––– U.S. ––––, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016), decisions the government contends do not apply retroactively and offer movant no relief. For the reasons stated below, the Court will grant movant's motion.

I. Background

On March 10, 2005, movant was charged in a superseding indictment with distribution of cocaine base (Count I); possession of pseudoephedrine with intent to manufacture methamphetamine (Count II); attempting to manufacture fifty grams or more of methamphetamine (Count III); and being a felon in possession of ammunition (Count IV). On the day of trial, the government moved to amend the superseding indictment to lessen the amount of methamphetamine charged in Count III from fifty grams or more to five grams or more. See United States v. Taylor , 1:04–CR–213 CAS (E.D. Mo.) (Doc. 76). Defense counsel did not object to the amendment, and the Court granted the government's motion. Count I was severed, and movant proceeded to trial on Counts II, III, and IV of the superseding indictment. On June 14, 2005, a jury found movant guilty on all three counts.

A presentence investigation report ("PSR") was prepared after movant's trial. The PSR stated that movant met the Career Offender provisions of United States Sentencing Guidelines ("U.S.S.G.") § 4B1.1 because he had at least two prior felony convictions for crimes of violence and/or controlled substance offenses. The prior convictions were for felony offenses of (1) burglary second degree, (2) unlawful use of a weapon, and (3) possession of a controlled substance with the intent to deliver. All of the prior convictions were in the Circuit Court of Pemiscot County, Missouri. Counts II and III were grouped for Sentencing Guideline calculation purposes pursuant to U.S.S.G. § 3D1.2(d), but Count IV was specifically excluded from grouping pursuant to U.S.S.G. § 3D1.2.

On August 16, 2005, the Court sentenced movant to a term of 210 months for the offense of possession with intent to manufacture methamphetamine in Count II, and 240 months for the offenses of attempting to manufacture five grams or more of methamphetamine and being a felon in possession of ammunition in Counts III and IV. The sentences were ordered to run concurrently. The Court imposed a three-year period of supervised release on Count II, an eight-year period of supervised release on Count III, and a five-year period of supervised release on Count IV.²

On December 11, 2005, movant filed a motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, in which he asserted three grounds for relief. The Court denied the motion in all respects. See Taylor v. United States , No. 1:06–CV–182 CAS (E.D. Mo.), Order and Judgment of Oct. 17, 2008 (Docs. 24 and 25). The Eighth Circuit Court of Appeals denied movant's application for a certificate of appealability and dismissed the appeal. See Taylor v. United States , No. 08–3947 (8th Cir. Sept. 30, 2009). Movant subsequently filed a motion under Federal Rule of Civil Procedure 60(d) and another motion under § 2255, which this Court denied as successive.

After the Supreme Court decided Johnson , the Eighth Circuit granted movant's petition for authorization to file a successive habeas application in the district court. Taylor v. United States , No. 16–1129 (8th Cir. June 23, 2016).

II. Legal Standard

A district court may vacate, set aside, or correct a federal sentence if "the sentence was in excess of the maximum authorized by law." 28 U.S.C. § 2255(a). Movant bears the burden to show he is entitled to relief. Day v. United States , 428 F.2d 1193, 1195 (8th Cir. 1970). In a case involving an ACCA conviction such as this one, "the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA."

Hardman v. United States , 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016) ; see also Hardman v. United States , 191 F.Supp.3d 989, 991–93, 2016 WL 3702798, at *2–3 (W.D. Mo. June 3, 2016) (denying government's motion for reconsideration on the issue of the burden of proof).

III. Discussion

In the instant motion, movant asserts that his Missouri burglary second degree conviction no longer qualifies as a predicate offense now that Johnson has declared the ACCA's residual clause unconstitutional. Movant concedes that his convictions for unlawful use of a weapon and possession of a controlled substance still count as convictions for ACCA purposes after Johnson . The government responds that despite Johnson , movant is still subject to the armed career criminal enhancement because his burglary conviction is an enumerated offense under a different clause of the ACCA. The government also asserts that movant's motion actually seeks to retroactively apply the holdings of the Supreme Court's Descamps and Mathis decisions, but these holdings may not be applied retroactively to cases on collateral review. In reply, movant agrees that Descamps and Mathis have not been made retroactive, but states his motion is not based on those cases and is instead based on Johnson , which has been made retroactive. Movant asserts, however, that Descamps and Mathis offer courts important instruction from the Supreme Court on how to analyze a state statute and apply Supreme Court precedent in determining whether a prior conviction is a crime of violence or a violent felony.

A. The Armed Career Criminal Act

Movant's claim for relief relies on the interaction of several recent Supreme Court cases interpreting the ACCA. Ordinarily, the crime of felon in possession of ammunition in violation of 18 U.S.C. § 922(g) is subject to a maximum punishment of fifteen years. 18 U.S.C. § 924(a). The ACCA enhances the sentence and requires a fifteen-year minimum sentence if a person who violates § 922(g) has three previous convictions for a "violent felony." The statute defines violent felony as any felony that: "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. " 18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized language is commonly known as the "residual clause," and is the portion of the statute that Johnson invalidated, see 136 S.Ct. at 2256–57. The remaining clauses, § 924(e)(2)(B)(i) (the "elements clause"), and the first clause of § 924(e)(2)(b)(ii) (the "enumerated offenses clause"), are still effective. Id. at 2563. Recently, the Supreme Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016).

B. Legal Basis for Movant's Motion

Movant asserts that his prior Missouri conviction for second-degree burglary qualified as a violent felony only under the ACCA's residual clause, and therefore his previously imposed sentence as an armed career criminal is unconstitutional.³ The government responds that movant's burglary conviction still qualifies for the ACCA enhancement because the surviving definition of "violent felony" includes a felony conviction for "burglary" as one of four enumerated offenses. 18 U.S.C. § 924(e)(2)(B)(ii).

The Court first addresses the government's argument that movant seeks to improperly utilize the retroactive holding in Johnson to obtain collateral review of his prior conviction under Descamps , which is not retroactive. See Headbird v. United States , 813 F.3d 1092, 1097 (8th Cir. 2016) (holding that Descamps "was dictated by the general principles set forth in existing precedent and did not establish a new rule."). As this Court and other courts have recognized, it is Johnson , not Descamps , that may offer persons such as movant relief from his status as an armed career criminal. Hayes v. United States , 2016 WL 4206028, at *2 (E.D. Mo. Aug. 10, 2016) ; see also United States v. Ladwig , 192 F.Supp.3d 1153, 1159–60, 2016 WL 3619640, at *4 (E.D. Wash. June 28, 2016).

Even if Descamps were retroactive, movant would not have a claim that he is not an armed career criminal absent Johnson 's invalidation of the residual clause, because the second-degree burglary conviction qualified as a predicate felony under the ACCA's residual clause. See United States v. Cantrell , 530 F.3d 684, 695–96 (8th Cir. 2008) (holding that Missouri's second–degree burglary offense was categorically a "crime of violence" despite the statute's broad definition of "inhabitable structure."). "Only with J ohnson 's invalidation of the residual clause could [movant] reasonably argue that he is no longer eligible for the ACCA enhancement." Ladwig , 192 F.Supp.3d at 1159–60, 2016 WL 3619640, at *4 ; see also Hayes , 2016 WL...