United States v. Dooley, Case No. 7:13cr00036

CourtUnited States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
Writing for the CourtMichael F. Urbanski, United States District Judge
Citation228 F.Supp.3d 733
Parties UNITED STATES of America v. Cody Morris DOOLEY, Petitioner.
Docket NumberCase No. 7:13cr00036
Decision Date12 January 2017

228 F.Supp.3d 733

Cody Morris DOOLEY, Petitioner.

Case No. 7:13cr00036

United States District Court, W.D. Virginia, Roanoke Division .

Signed January 12, 2017

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Ronald Andrew Bassford, United States Attorneys Office, Roanoke, VA, for United States of America.

Fay Frances Spence, Federal Public Defenders Office, Roanoke, VA, for Petitioner.


Michael F. Urbanski, United States District Judge

Petitioner Cody Morris Dooley brings this habeas petition under 28 U.S.C. § 2255, asking the court to vacate or correct his sentence in light of the United States Supreme Court's recent decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The government has moved to dismiss Dooley's § 2255 motion. The issues have been thoroughly briefed, and the parties appeared before the court for oral argument on November 17, 2016. For the reasons that follow, the court will GRANT Dooley's § 2255 petition (ECF No. 50) and DENY the government's motions to dismiss (ECF Nos. 56 & 58).


On December 17, 2013, the court sentenced Dooley to 180 months of incarceration following his guilty plea to a violation of 18 U.S.C. § 922(g)(1), charging him with being a felon in possession of a firearm. Because the court determined that Dooley had three or more qualifying convictions under the Armed Career Criminal Act (the "ACCA"), he was subject to 18 U.S.C. § 924(e)'s mandatory minimum sentence of 180 months, rather the 120–month maximum sentence otherwise authorized under § 924(a)(2). The court calculated the sentencing guideline range as being 180 to 188 months and sentenced Dooley to 180 months incarceration. Dooley was remanded to the custody of the Bureau of Prisons, where he remains with an estimated release date in June 2026.

The Presentence Investigation Report ("PSR") prepared in Dooley's case identifies three qualifying predicate convictions that give rise to the ACCA enhancement: statutory burglary (paragraph 24), possession of marijuana with intent to distribute (paragraph 27), and unlawful wounding (paragraph 31). ECF No. 44, at ¶ 19. Dooley did not object to the PSR's conclusion that he qualified as an Armed Career Criminal, subjecting him to § 924(e)'s 180–month mandatory minimum sentence.

The issue now facing this court is whether, following the decisions of the United States Supreme Court in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Welch v. United States , –––U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), Dooley's ACCA enhancement remains lawful.


Under 28 U.S.C. § 2255, a federal inmate may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. Courts may afford relief where

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"the sentence was imposed in violation of the Constitution or the laws of the United States." Id. § 2255(a). If the court determines the sentence was unlawfully imposed, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." Id. § 2255(b).

A convicted felon found guilty of possessing a firearm faces a maximum sentence of 120 months. 18 U.S.C. § 924(a)(2). However, the ACCA provides for a mandatory minimum sentence of 180 months when a defendant was previously convicted of at least three prior serious drug offenses or violent felonies. Id. § 924(e)(1). A violent felony is defined as:

Any crime punishable by imprisonment for a term exceeding one year ... 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.

Id. § 924(e)(2)(B) (strikeout added).

In 2015, the Supreme Court invalidated the language stricken above after finding it void for vagueness. Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) ("Johnson II ").1 Though often parsed into three clauses—the force clause, the enumerated clause, and the residual clause—§ 924(e)(2)(B) is comprised of two numbered subsections. See Begay v. United States , 553 U.S. 137, 142–44, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008). Specifically, the first subsection states:

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

18 U.S.C. § 924(e)(2)(B). The second subsection states:

(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.("Subsection (ii)")

Id. Subsection (ii) lists several specific "enumerated offense" crimes—burglary, arson, extortion, and use of explosives—that amount to violent felonies. Subsection (ii) goes on to encompass any crime that "otherwise involves conduct that presents a serious potential risk of injury."

The second portion of Subsection (ii)—the part of the statute deemed unconstitutional in Johnson II —is often called the "residual clause." The residual clause refers to crimes that are "similar to the listed examples in some respects but different in others—similar, say in respect to the degree of risk it produces, but different in respect to the ‘way or manner’ in which it produces that risk." Begay , 553 U.S. at 144, 128 S.Ct. 1581. Accordingly, a crime, for ACCA purposes, cannot qualify as both an enumerated offense and as a residual offense. Id. A contrary interpretation would read the word "otherwise" out of Subsection (ii). Id. Rather, a predicate conviction is an enumerated offense, a residual offense similar to an enumerated offense, or neither. This understanding of § 924(e) was confirmed in James v. United States , 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), and aligns with the court's conclusion in this case.

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In James , the Supreme Court determined that neither attempted burglary nor Florida's burglary statute was properly considered as an enumerated offense under Subsection (ii). Id. at 212–13, 127 S.Ct. 1586. This is so because, as explained below, the enumerated offense of burglary has been defined by the Supreme Court in a manner that is incongruous with the way many states have written their burglary statutes. Because Florida's version of burglary and attempted burglary did not fall within the definition of generic burglary but posed a degree of risk similar to the ACCA's enumerated version of burglary, the government could rely "on the residual provision of [Subsection (ii) ], which—as the court has recognized—can cover conduct that is outside the strict definition of, but nevertheless similar to, generic burglary." Id.

Thus, when the Court struck down the ACCA's residual clause in Johnson II , the ACCA enhancement applied in James , based solely on the residual clause, fell as well.2 135 S.Ct. at 2563 ("We hold that imposing an increased sentence under the residual clause of the Armed Career Criminal Act violates the Constitution's guarantee of due process. Our contrary holdings in James and Sykes [ v. United States] , [564 U.S. 1, 131 S.Ct. 2267, 180 L.Ed.2d 60 (2011),] are overruled. Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony.").

Whether the Virginia crime of statutory burglary falls within the enumerated clause portion or the residual clause portion of Subsection (ii) is dispositive in determining whether Johnson II reaches Dooley's conviction under the ACCA. Because the court determines that Virginia statutory burglary—now and since Taylor v. United States , 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990), was decided—does not qualify as one of the enumerated offenses in Subsection (ii) of § 924(e)(2)(B), Dooley's claim is timely, procedurally proper, and unlawful in light of Johnson II .3


The federal habeas corpus statute under which Dooley seeks relief, 28 U.S.C. § 2255(f), contains a one-year statute of limitations. The government argues that Dooley's habeas petition is untimely as it was not filed within one year of the date his judgment became final. 28 U.S.C. § 2255(f)(1). Dooley contends that his petition was timely filed pursuant to § 2255(f)(3), as he filed it within one year of the Supreme Court's decision in Johnson II . Under § 2255(f)(3), the one-year statute of limitations period begins on "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactive applicable to cases on collateral review."

The government responds that Johnson II has nothing to do with Dooley's case.

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Dooley was convicted of Virginia statutory burglary, which the government...

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