United States v. Oladimu, Criminal No. 1:01-cr-10198-IT

CourtUnited States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
Writing for the CourtTALWANI, D.J.
Docket NumberCriminal No. 1:01-cr-10198-IT
Decision Date01 May 2020


Criminal No. 1:01-cr-10198-IT


May 1, 2020



I. Introduction

Petitioner Leo V. Oladimu's petition for a writ of habeas corpus under 28 U.S.C. § 2255 challenges his conviction1 under 18 U.S.C. § 924(c) as invalid under United States v. Davis, 139 S. Ct. 2319 (2019), and his punishment under the Armed Career Criminal Act as invalid under Johnson v. United States, 135 S. Ct. 2551 (2015) ("Johnson II"). Petitioner's Supp. Mem. 1 [#380]. For the following reasons, the petition is GRANTED.

II. Procedural History

Following a jury trial, Petitioner was found guilty on twelve counts, including possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. §924(c)(1) and possession of a firearm as a convicted felon in violation of 18 U.S.C. §922(g)(1).2 The court

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granted Petitioner's Renewed Motion for Acquittal [#190] as to the § 924(c) count. Order [#205]. At his 2002 sentencing, Petitioner was identified as an Armed Career Criminal, see Sentencing Memorandum of Defendant 1 [#224]; United States' Sentencing Memorandum 1 [#228], and he was sentenced to a corresponding guideline sentence of 262 months on the eleven remaining counts. Judgement [#231]. On appeal, Petitioner's conviction was affirmed, the conviction as to the § 924(c) count was reinstated, and the sentence vacated. Judgment of USCA [#278]. On remand in 2006, Petitioner was resentenced to a guideline sentence of 262 months on the original eleven counts and an additional 60 months on the § 924(c) count. Amended Judgment [#306]. Petitioner was represented by CJA counsel during the trial, appeal, and resentencing.

Petitioner's first petition under 28 U.S.C. § 2255 was filed pro se, arguing ineffective assistance of counsel by his CJA counsel and juror misconduct. Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Original § 2255") 6 [#311]. The court denied the petition in 2009. See Felton v. United States, 07-cv-11961-NG (D. Mass.).

On June 26, 2015, the Supreme Court issued its decision in Johnson v. United States, 135 S. Ct. 2551 (2015), holding unconstitutional the imposition of an increased sentence under the residual clause of the Armed Career Criminal Act.

On October 6, 2015, the District Court for the District of Massachusetts issued General Order 15-1, Standing Procedural Order re: Appointment of Counsel and Motions for Relief from a Conviction or Sentence ("General Order 15-1"). Pursuant to General Order 15-1, the Federal Public Defender was directed to contact the CJA lawyer who previously represented a defendant if the Federal Public Defender's Office determined, after review of Presentence Reports, that the defendant had a colorable claim for relief under Johnson II. The General Order provided further

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that if the CJA lawyer was willing to represent the defendant and determined that the defendant had a colorable claim for relief, the CJA lawyer was to file a request to be appointed for the purpose of preparing and filing a habeas petition.

On May 4, 2016, Petitioner's trial counsel sought appointment to represent Petitioner pursuant to General Order 15-1 "for the purpose of preparing and filing a petition under 28 U.S.C. § 2255, seeking relief" under Johnson II. Motion to be Appointed Counsel [#325]. The court granted the motion the following day and directed that the petition should be filed by June 6, 2016. Elec. Order [#327]. On June 8, 2016, CJA Counsel advised the court that she did not intend to file "a second petition pursuant to 18 U.S.C. § 2255." Notice [#329]. The Notice stated that she had been appointed to review Petitioner's sentence calculation and had determined that Johnson II was not applicable to his situation. Id. CJA counsel stated further that she wrote to Petitioner on May 6, 27, and 29, 2016, "to explain that she did not believe that he was eligible for relief." Id.

On April 24, 2017, the Federal Public Defender's Office sought to be appointed to file a Johnson II claim on Petitioner's behalf. Motion for Appointment of Counsel [#330]. The court granted the motion for appointment, Elec. Order [#331], and on July 11, 2017, the First Circuit granted leave for Petitioner to file this second or successive motion under 28 U.S.C. § 2255 pursuant to the gatekeeping standard set forth at 28 U.S.C. § 2244(b)(2)(A) and 28 U.S.C. § 2255(h)(2).3 See Judgment of the USCA [#334]. The Appeals Court noted Petitioner's challenge to his Armed Career Criminal designation based on Johnson II4 and expressed no

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opinion on whether Petitioner's challenge under 18 U.S.C. § 924(c) met the gate keeping requirements. Id.5 The Appeals Court deemed the petition filed as of April 26, 2017, and took no position on its merits or timeliness. Id.

Proceedings were stayed several times on the parties' joint motions. On June 24, 2019, while Petitioner's Amended 28 U.S.C. § 2255 Motion [#351] was pending, the Supreme Court in United States v. Davis, 139 S. Ct. 2319, 2336 (2019), held the residual clause of 18 U.S.C. § 924(c) to be unconstitutionally vague.

On February 6, 2020, the court appointed Defendant successor CJA counsel. Elec. Order [#389].

III. Analysis

A. The § 924(c) Claim

Because the Supreme Court's decision in United States v. Davis, 139 S. Ct. 2319 (2019), finding the residual clause of 18 U.S.C. § 924(c) to be unconstitutionally vague "has the same limiting effect on the range of conduct or class of people punishable under § 924(c)" that Johnson II has with respect to the ACCA, Davis, like Johnson II "'announced a substantive rule that has retroactive effect in cases on collateral review.'" In re Mullins, 942 F.3d 975 (10th Cir. 2019) (quoting Welch, 136 S.Ct. at 1268). The petition's § 924(c) claim thus satisfies the gatekeeping requirements of 28 U.S.C. 2244(b)(4) and was timely filed under the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2255(f).6

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The parties agree that the predicate offense underlying Petitioner's § 924(c) conviction -- conspiracy to make and possess a destructive device in violation of 18 U.S.C. § 371 and 26 U.S.C. §§ 5822, 5841, and 5861(d) and (f) -- does not qualify as a predicate under the remaining portions of § 924(c) and, so, must be vacated. Supplemental Memorandum in Light of United States v. Davis 1 [#380] (citing United States v. Reece, 938 F.3d 630, 635-36 (5th Cir. 2019) for the proposition that conspiracy convictions do not satisfy the force clause even if the object of the conspiracy would); Government's Response to Supplemental Memorandum in Light of United States v. Davis 1 [#384] (conceding that Petitioner's conviction under 18 U.S.C. § 924(c) is "no longer viable" and the court "should schedule a resentencing...on his eleven other counts of conviction"). As such, Petitioner's motion to vacate his conviction under 18 U.S.C. § 924(c) is GRANTED.

B. The ACCA Claim

The Armed Career Criminal Act (ACCA) provides for a mandatory minimum sentence of 15 years for any person convicted of a firearms offense in violation of 18 U.S.C. § 922(g) if that person has three prior convictions for offenses committed on three different occasions that each constitute either a "violent felony" or "serious drug offense." 18 U.S.C. § 924(e)(1). A "violent felony" is any crime punishable by imprisonment for more than one year that either "has as an element the use, attempted use, or threatened use of physical force against the person of another"7 or "is burglary, arson, or extortion, [or] involves use of explosives."8 18 U.S.C. § 924(e)(2)(B). In Johnson II, the Supreme Court found ACCA's third category of "violent

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felony," encompassing a crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another,"9 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutional.

In anticipation of Petitioner's original sentencing, the U.S. Probation Department identified four predicate convictions as the basis for designating him an Armed Career Criminal. Presentence Report (PSR) ¶ 104. Petitioner challenges the classification of each of these convictions as "violent felonies" under the ACCA. The government opposes the petition both as to timeliness and on the merits.

1. Timeliness

The government raises two timeliness-related issues.

First, Petitioner's petition was filed more than one year after the Supreme Court's decision in Johnson II and is thus untimely under AEDPA. However, AEDPA's statute of limitations "is not jurisdictional." Day v. McDonough, 547 U.S. 198, 205 (2006). Petitioner argues that the court should consider his ACCA claim in order to prevent a miscarriage of justice because he is actually innocent of being an Armed Career Criminal, see Am. Mtn. 9 [#351]; Pet.'s Reply 4 [#361], and because the circumstances warrant equitable tolling of the one year filing deadline. See Am. Mtn. 9 [#351]; Pet.'s Reply 7-9 [#361]. The government disputes both points. Gov't Opp'n 6-10 [#353].

The court need only reach equitable tolling.10 The one year statute of limitations on filing a § 2255 motion is subject to equitable tolling if a petitioner demonstrates "(1) that he has been

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pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing." Holland v. Florida, 560 U.S. 631, 649 (2010) (internal quotation omitted). Such tolling should "be invoked only sparingly," Neverson v Farquharson. 366 F.3d 32, 42 (1st Cir. 2004) (internal quotation omitted), and, at a minimum, is "appropriate only when circumstances beyond the petitioner's control have prevented him from filing on time." Id.

The record supports equitable tolling here. The Supreme Court issued its decision in Johnson II on June 26, 2015. The district court delegated initial review of potential Johnson II claims to the Federal Defenders' office. The Federal...

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