United States v. Hodges
| Decision Date | 27 April 2017 |
| Docket Number | Case No. 7:05-CR-040. |
| Citation | 251 F.Supp.3d 1026 |
| Parties | UNITED STATES of America v. Ernest F. HODGES, Jr., Petitioner. |
| Court | U.S. District Court — Western District of Virginia |
Jean Barrett Hudson, United States Attorneys Office, Charlottesville, VA, Jennifer R. Bockhorst, United States Attorneys Office, Abingdon, VA, Ronald Andrew Bassford, United States Attorneys Office, Roanoke, VA, for United States of America.
Petitioner Ernest F. Hodges, Jr. brings this habeas corpus petition pursuant to 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 Hodges' § 2255 motion. The court heard oral argument on November 17, 2016 and has reviewed the memoranda submitted by the parties. See ECF Nos. 155, 158, 165 and 166. For the reasons that follow, the court will GRANT Hodges' § 2255 motions (ECF Nos. 155 & 158) and DENY the United States' motion to dismiss (ECF No. 165).1
Following a jury trial, a criminal judgment was entered sentencing Hodges to concurrent terms of 220 months of incarceration for possession of a firearm by a felon (Count 1) and possession of ammunition by a felon (Count 2) in violation of 18 U.S.C. § 922(g)(1). ECF No. 42. Because the court determined that Hodges had three of 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 than the 120–month maximum sentence otherwise authorized under § 924(a)(2). The court calculated the sentencing guideline range as being 210 to 262 months and sentenced Hodges to serve concurrent terms of 220 months.
The Presentence Investigation Report ("PSR"), as written at the time of sentencing, indicated in paragraph 19 that the ACCA enhancement should apply because of Hodges' prior convictions for Virginia statutory burglary in the Roanoke County Juvenile & Domestic Relations Court on December 17, 1965 (paragraph 23), for breaking and entering in the Franklin County Circuit Court on July 10, 1972 (paragraph 26), and for distribution of heroin in the Roanoke City Circuit Court on October 25, 2000 (paragraph 46). ECF No. 86, at 5. At sentencing, Hodges voiced no objections to the PSR, including its assessment that the ACCA enhancement applied. ECF No. 86, at 22; ECF No. 68, at 2.
The sentencing judge later ordered that the PSR be amended to correct a clerical error in paragraph 19. See ECF No. 111. The amended PSR reflects that Hodges' ACCA–enhancing convictions include Virginia statutory burglary in Roanoke County Circuit Court on March 30, 1971 (paragraph 25), breaking and entering in the Franklin County Circuit Court on July 10, 1972 (paragraph 26), and distribution of heroin in the Roanoke City Circuit Court on October 25, 2000 (paragraph 46). ECF No. 114.
Hodges appealed his judgment, which was affirmed by the Fourth Circuit Court of Appeals on February 21, 2007. ECF No. 70. Over the ensuing years, Hodges has made various attempts to overturn his conviction, all without success. By order dated June 1, 2016, the Fourth Circuit granted authorization for Hodges to file a second or successive motion under 28 U.S.C. § 2255. ECF No. 154. Hodges filed his pro se § 2255 motion that same day, which was amended by counsel on August 5, 2016. ECF Nos. 155, 158.
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), Hodges' ACCA enhancement for his prior convictions for Virginia statutory burglary and breaking and entering remains lawful.2
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 "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:
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").3 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
18 U.S.C. § 924(e)(2)(B) ("Subsection (i)"). 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....
Id. ("Subsection (ii)"). Subsection (ii)—the only part of the statute at issue in Hodges' claim—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.
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.4 135 S.Ct. at 2563 ( ).
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 Hodges' 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), Hodges' claim is both timely and procedurally proper, and his enhanced sentence is unlawful in light of Johnson II.
The federal habeas corpus statute under which Hodges seeks relief, 28 U.S.C. § 2255(f), contains a one-year statute of limitations. The government argues that Hodges' 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). Hodges 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...
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