Thrower v. United States

• Decision Date: 13 February 2017
• Docket Number: 04–CR–0903 (ARR)
• Parties: William THROWER, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of New York

234 F.Supp.3d 372

William THROWER, Petitioner,

v.UNITED STATES of America, Respondent.

04–CR–0903 (ARR)

United States District Court, E.D. New York.

Signed February 13, 2017

Alexander Mindlin, Sean Patrick Casey, United States Attorneys Office, Brooklyn, NY, for Respondent.

OPINION AND ORDER

ROSS, United States District Judge:

Petitioner William Thrower brings this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255(a). In 2005, Thrower was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), an offense that, on its own, carries a maximum penalty of 10 years' imprisonment, see id. § 924(a)(2). Because I determined that Thrower had three previous convictions for violent felonies, he was subject to a mandatory minimum of 15 years' imprisonment under the Armed Career Criminal Act ("ACCA"), see id. § 924(e)(1). Thrower argues that his 15–year sentence is no longer valid in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). In Johnson , the Supreme Court struck down the ACCA's residual clause as unconstitutionally vague. Id. at 2257. According to Thrower, he no longer has three qualifying predicate offenses because I may have relied on the residual clause in classifying one or more of his convictions as violent felonies. Without three qualifying convictions, Thrower is subject to a maximum prison sentence of 10 years, which he has already served. For the reasons explained below, Thrower's motion is granted.

BACKGROUND

In April 2005, Thrower was convicted by a jury of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Compl., Dkt. #1;¹ Minute Entry, Dkt. #28. At the time of sentencing, in 2008, Thrower had the following five prior felony convictions: (1) a 1981 conviction for first degree robbery, in violation of New York Penal Law § 160.15 ; (2) a 1981 conviction for third degree burglary, in violation of New York Penal Law § 140.20 ; (3) a 1993 conviction for fourth degree larceny, in violation of New York Penal Law § 155.30 ; (4) a 1994 conviction for attempted third degree robbery, in violation of New York Penal Law § 160.05 ; and (5) a 2000 conviction for third degree robbery, in violation of New York Penal Law § 160.05. I determined that at least three of these convictions were for "violent felonies" within the meaning of the ACCA, such that Thrower was subject to a mandatory minimum sentence of 15 years' imprisonment, see 18 U.S.C. § 924(e)(1). Sentencing Tr. at 3–6, 16, Gov't's First Opp'n Ex. B, Dkt. #92–2. I did not specify during the sentencing hearing which of the five felonies served as the three predicates under the ACCA, though I did refer to the 1981 robbery as the "first predicate violent felony." Id. at 5. Additionally, I noted that "the statute specifically identifies ... burglary," which was "precisely [the] crime for which defendant was convicted [in 1981]." Id. at 5–6. I sentenced Thrower to the mandatory minimum 15–year prison term. Id. at 16.

Thrower appealed his conviction and sentence, and the Second Circuit affirmed. United States v. Thrower , 584 F.3d 70, 75 (2d Cir. 2009) (per curiam). On direct appeal, Thrower argued that he did "not have the requisite number of offenses necessary to qualify for the ACCA." Id. at 72. Specifically, Thrower asserted "that two of his offenses [did] not count because he received a Certificate of Relief from Disabilities that restored his civil rights, and that a third conviction—larceny in the fourth degree—[did] not qualify as a violent felony." Id. The Second Circuit concluded that fourth degree larceny under New York law "qualif[ied] as a violent felony under the residual clause for purposes of the ACCA." Id. Accordingly, "Thrower ha [d] three eligible convictions that support[ed] the district court's ACCA enhancement," and the court did "not [need to] reach the Certificate of Relief from Disabilities issue." Id.

In October 2011, Thrower filed a petition for a writ of habeas corpus under § 2255, arguing that his counsel had been ineffective. See Mot. to Vacate, Set Aside or Correct Sentence, No. 11–cv–4858, Dkt. #1. I concluded that Thrower's claims lacked merit and thus denied the petition. See Order at 2, No. 11–cv–4858, Dkt. #21. Thrower requested a certificate of appealability from the Second Circuit, which the Second Circuit denied. See Mandate, No. 11–cv–4858, Dkt. #25.

In June 2016, Thrower sought leave from the Second Circuit to file the instant successive § 2255 petition on the grounds that his 15–year sentence is no longer valid in light of Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). See Mot. for an Order Authorizing the District Court to Consider a Successive or Second Mot. to Vacate, Set Aside or Correct Sentence at 5–7, Dkt. #82–1. On August 26, 2016, the Second Circuit granted the motion. Mandate, Dkt. #82.

Thrower filed the instant motion pro se on September 9, 2016. See First Pet., Dkt. #83. On January 6, 2017—after the government had responded to Thrower's pro se petition, but before Thrower filed his reply—I appointed counsel for Thrower, and his petition was subsequently fully re-briefed.² See Orders (Jan. 6, 2017). The fully briefed petition is now before the court.

STANDARD OF REVIEW

28 U.S.C. § 2255(a) allows a prisoner to move to vacate, set aside, or correct his sentence "upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Even if the petitioner is able to show that the sentencing court committed a constitutional error, the error cannot be redressed through a § 2255 petition unless it had a "substantial and injurious effect" that resulted in "actual prejudice" to the petitioner. Brecht v. Abrahamson , 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (citations omitted); see also Underwood v. United States , 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht 's harmless error standard to § 2255 petition). The petitioner bears the overall burden of proving by a preponderance of the evidence that he is entitled to relief.

Alli–Balogun v. United States , 114 F.Supp.3d 4, 50 (E.D.N.Y. 2015).

DISCUSSION

18 U.S.C. § 922(g)(1) prohibits any person who has been convicted of a felony from possessing a firearm. On its own, this crime is punishable by a maximum of 10 years' imprisonment. Id. § 924(a)(2). However, the ACCA mandates a minimum 15–year sentence for a defendant who illegally possesses a firearm in violation of 18 U.S.C. § 922(g)"and has three previous convictions ... for a violent felony." Id. § 924(e)(1). The statute defines "violent felony" as follows:

[A]ny crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or

destructive device that would be punishable by imprisonment for such term if committed by an adult, 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 the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another ....

Id. § 924(e)(2)(B) (emphasis added). I will refer to subsection (i) as the "force clause," to the nonitalicized portion of subsection (ii) as the "enumerated offense clause," and to the italicized portion of subsection (ii) as the "residual clause." As stated above, in Johnson v. United States , –––U.S. ––––,135 S.Ct. 2251, 192 L.Ed.2d 569 (2015), the Supreme Court struck down the residual clause as unconstitutionally vague. Id. at 2557. The Court held that this ruling applied retroactively on collateral review of convictions in Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016).

To prevail on his motion, Thrower must first demonstrate that the court committed constitutional error. See Diaz v. United States , No. 16-cv-0323, 2016 WL 4524785, at *5 (W.D.N.Y. Aug. 30, 2016). Thrower can satisfy this requirement by showing that the court may have relied on the residual clause during sentencing. See id. Once Thrower has demonstrated constitutional error, he then bears the burden of proving that the error was prejudicial. See id. Thrower can meet this burden by showing that, absent the residual clause, he no longer has three convictions for violent felonies. See id. at *6. For the reasons explained below, Thrower has met his burden of proving both constitutional error and prejudice.

A. Thrower Has Met His Burden of Demonstrating Constitutional Error

The parties dispute what burden Thrower must meet to demonstrate constitutional error at sentencing. The government argues that Thrower "bears the burden of demonstrating that the district court in fact relied on the residual clause in sentencing him under the ACCA." Gov't's First Opp'n at 4, Dkt. #92 (emphasis added). According to Thrower, he need only show that the court may have relied on the residual clause. Second Pet. at 5–7, Dkt. #97. As explained below, I agree with Thrower's position.

In support of its argument regarding the burden of proof, the government cites In re Moore , 830 F.3d 1268 (11th Cir. 2016). In Moore , the Eleventh Circuit stated that a petitioner bringing a § 2255 motion bears the "burden of showing that he is entitled to relief" and that a petitioner cannot meet that burden in a Johnson case "unless he proves that he was sentenced using the residual clause." Id. at 1273. Thus, "[i]f the district court cannot determine whether the residual clause was used in sentencing and affected the final sentence—if the court cannot tell one way or the other—the district court must deny the § 2255 motion." Id. The government also cites...