United States v. Wilson

• Citation: 249 F.Supp.3d 305
• Decision Date: 18 April 2017
• Docket Number: Criminal No. 96-0157 (ESH).
• Parties: UNITED STATES of America, v. Ralph T. WILSON, Defendant.
• Court: U.S. District Court — District of Columbia

249 F.Supp.3d 305

UNITED STATES of America,

v.Ralph T. WILSON, Defendant.

Criminal No. 96-0157 (ESH).

United States District Court, District of Columbia.

Signed April 18, 2017

MEMORANDUM OPINION

ELLEN SEGAL HUVELLE, United States District Judge

Defendant Ralph T. Wilson has filed a motion pursuant to 28 U.S.C. § 2255 to vacate and correct his sentence in light of the Supreme Court's decisions 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).¹ For the reasons stated herein, the motion is granted.

BACKGROUND

On November 26, 1997, defendant entered a plea of guilty to one count of possession of a firearm by a convicted felon after having been previously convicted of three crimes involving a violent felony or a serious drug offense, in violation of 18 U.S.C. § 922(g)(1)² and the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). (See Gov't Opp'n, Ex. A, ¶ 1 (Plea Agreement, Nov. 26, 1997), ECF No. 51-1.)³ For purposes of the ACCA, defendant's qualifying prior convictions included two violent felonies and one serious drug offense: a 1982 conviction in Maryland Circuit Court for robbery ("Maryland Robbery"); 1988 conviction in D.C. Superior Court for Assault with a Deadly Weapon ("DC ADW"); and a 1988 conviction in D.C. Superior Court for possession with intent to distribute cocaine and possession of cocaine.⁴ The ACCA requires a mandatory minimum sentence of 15-years imprisonment, which was imposed on November 26, 1997.⁵ (See Judgment, Nov. 26, 1997, ECF No. 46.)⁶ Defendant did not file an appeal.

At the time defendant was sentenced, the ACCA defined a "violent felony" as:

any 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 use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). Subsection (i) is known as the "elements clause"; subsection (ii)'s list of offenses is known as the "enumerated clause"; and the final phrase in subsection (ii) – "otherwise involves conduct that presents a serious potential risk of physical injury to another" – is known as the "residual clause." United States v. Redrick , 841 F.3d 478, 480 (D.C. Cir. 2016). However, on June 26, 2015, the Supreme Court struck down the "residual clause" as unconstitutionally vague. See Johnson v . United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (" Johnson 2015 "). Then, on April 16, 2016, the Supreme Court held that its holding in Johnson 2015 was "a substantive rule" that applies retroactively to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016).

Defendant had one year from the date of Johnson 2015 to file a § 2255 motion for collateral relief based on that decision, see 28 U.S.C. § 2255(f),⁷ but only a few months of the year remained by the time the Supreme Court decided Welch . Due to this short time frame, the Chief Judge of this Court appointed the Office of the Federal Public Defender ("FPD") to represent any convicted defendant who previously had been entitled to the appointment of counsel and might have a claim under Johnson and Welch . See Johnson Standing Order No. 1, at 1-2 (D.D.C., June 2, 2016). For those defendants, the Order directed the FPD to file an abridged motion for relief by the one-year deadline, to be supplemented with a fully briefed motion, where warranted, by October 26, 2016. See id. June 26, 2016, fell on a Sunday, so Johnson 2015 motions were due by Monday, June 27, 2016. See Fed. R. Civ. P. 6(a)(1)(C).

On June 28, 2016, the FPD filed defendant's abridged § 2255 motion.⁸ (See Def.'s Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. 48 ("Def.'s Mot.").) The FPD acknowledged that the motion was one day late, but it offered the following explanation:

Mr. Wilson did not appear on the United States Sentencing Commission's list of those sentenced under the ACCA and counsel was unaware of his ACCA sentence until receiving a telephone call on June 28, 2016 alerting counsel to this case. While counsel has not received all documents needed to properly assess this case, counsel is filing this motion to preserve Mr. Wilson's ability to challenge his ACCA sentence. After receipt of documents confirming the viability of Mr. Wilson's challenge, this motion will be supplemented by October 26, 2016, in accordance with the June 2, 2016, Standing Order.

(Id. at 1.) Defendant's fully briefed motion was timely filed on October 26, 2016. (See Def.'s Supp. Mot. to Vacate Judgment Under 28 U.S.C. § 2255, ECF No. 51 ("Def.'s Supp. Mot.").) On December 30, 2016, the government filed an opposition (United States' Opp'n to Def.'s Mot. & Supp. Mot., ECF No. 53 ("Gov't Opp'n")), and defendant filed a reply on January 31, 2017. (Def.'s Reply Mem. in Support of Mot. & Supp. Mot., ECF No. 57 ("Def.'s Reply")).

ANALYSIS

Defendant's § 2255 motion claims that, in light of Johnson 2015 and Welch , striking down the residual clause and applying that decision retroactively to cases on collateral review, his convictions for Maryland Robbery and DC ADW are not violent felonies under the ACCA and his 15-year mandatory minimum sentence should be vacated. The government argues that defendant is not entitled to relief, for both procedural and substantive reasons.

I. LEGAL STANDARD

A federal prisoner may petition a district court to vacate, set aside, or correct his sentence on the grounds "that the sentence was imposed in violation of the Constitution or laws of the United States, ... 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). "If the court finds ... that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, 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." 28 U.S.C. § 2255(b).

II. PROCEDURAL ISSUES

The government argues that defendant's claim should be rejected without reaching the merits either because it is untimely or because it was "procedurally defaulted."

A. Timeliness

The government argues that defendant's claim is not a timely Johnson 2015 claim for three reasons: (1) the record does not establish that the sentencing court actually relied on the residual clause; (2) the claim is really based on an earlier Supreme Court case, Johnson v. United States , 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (" Johnson 2010 "), not Johnson 2015 ; and (3) even if the claim is based on Johnson 2015 , it was filed one-day late.

1. Actual Reliance on Residual Clause

The government first argues that defendant's motion is untimely because defendant "has not carried his burden of showing that the district court actually relied on the residual clause to find that his prior convictions for [Maryland Robbery and DC ADW] qualified as violent felonies." (Gov't Opp'n at 8-9 (emphasis added).) According to the government, unless defendant can make this showing, he cannot pursue a claim based on Johnson 2015 , and the statute of limitations for any other claim expired long ago. Defendant does not dispute that the record in this case does not indicate whether the sentencing court actually relied on the residual clause, but argues that proof of actual reliance is not necessary to bring a claim based on Johnson 2015.

The government's position has been rejected by virtually every court to have considered the question, including by two other judges in this district.⁹ See United States v. Booker , No. 04-cr-0049, 240 F.Supp.3d 164, 167–70, 2017 WL 829094, at *3-*4 (D.D.C. Mar. 2, 2017) (Friedman, J.) ("The Court declines to impose the government's reliance requirement because [defendant] has done all that is required of him: shown that the sentencing judge might have relied on the now unconstitutional residual clause."); United States v. Brown , No. 09-0358, 249 F.Supp.3d 287, 291, 2017 WL 1383640 (D.D.C. Apr. 12, 2017) (Sullivan, J.) (same); see also United States v. Winston , 850 F.3d 677, 682 (4th Cir. 2017) ("when an inmate's sentence may have been predicated on application of the now-void residual clause and, therefore, may be an unlawful sentence under the holding in Johnson [2015 ] , the inmate has shown that he ‘relies on’ a new rule of constitutional law within the meaning of 28 U.S.C. § 2244(b)(2)(A)"); United States v. Ladwig , 192 F.Supp.3d 1153, 1159 (E.D. Wash. 2016) (defendant "successfully demonstrated constitutional error simply by showing that the Court might have relied on an unconstitutional alternative when it found that [defendant's] prior convictions for burglary and attempted rape were violent felonies); Bevly v. United States , No. 4:16-cv-965, 2016 WL 6893815, at *1, (E.D. Mo. Nov. 23, 2016) ("[i]n a situation where the Court cannot determine under what clause the prior offenses were determined to be predicate offenses, the better approach is for the Court to find relief is available, because the Court may have relied on the unconstitutional residual clause"); United States v. Mitchell , No. 1:06-cr-353, 218 F.Supp.3d 360, 366–67, 2016 WL 6656771, at *3 (M.D. Pa. Nov. 10, 2016) ("It is sufficient for purposes of § 2255 review to show that the court might have applied the residual clause when it imposed...