Vitko v. United States
| Decision Date | 19 May 2016 |
| Docket Number | 1:08-cr-00171-JAW |
| Parties | MELVIN LEE VITKO, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Maine |
Based on the Supreme Court's decision in Johnson v. United States striking the residual clause of the Armed Career Criminal Act (ACCA) as unconstitutional, the Court concluded that Mr. Vitko is serving a sentence that violates the United States Constitution and, therefore, relief was warranted under 28 U.S.C. § 2255. The Court ordered he be resentenced. In response to the Court's Order, the Government filed a motion for reconsideration, asking the Court to rethink its decision and deny Mr. Vitko relief. The Court denies the Government's motion and again orders Mr. Vitko resentenced because (1) Florida law leaves the possibility that Mr. Vitko was convicted of non-generic burglary as defined under the ACCA, (2) Mr. Vitko has met his burden of proof, and (3) burglary under Florida law does not constitute a "violent felony" under the "force" clause of the ACCA.
The Court provides an abbreviated synopsis of the procedural background. Greater detail is found in the Order under reconsideration. See Order Den. the Recommended Decision of the Magistrate Judge and Granting Relief under 28 U.S.C. § 2255 (ECF No. 88) (Order).
On September 11, 2008, a federal grand jury indicted Melvin Vitko on two-counts as a felon in possession of five firearms (Count One), a violation of 18 U.S.C. § 922(g)(1), and for possession of the same five firearms knowing they were stolen (Count 2), a violation of 18 U.S.C. § 922(j). Indictment at 1-3 (ECF No. 1) (Indictment). The Indictment asserted seventeen prior convictions in the state of Florida: eight burglaries, four grand thefts, an escape, uttering a forged check, conspiracy to escape, felonious possession of firearms, and dealing in stolen property. Id. Under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), Mr. Vitko was subject to a mandatory minimum of fifteen years in prison if the Government could prove that he had at least three prior convictions for "violent felonies."1 Pursuant to a plea agreement, on November 7, 2008, Mr. Vitko pleaded guilty to Count 1 of the Indictment. Plea Agreement (ECF No. 13); Entry (ECF No. 15). On April 14, 2009, the Court sentenced Mr. Vitko to 188 months imprisonment, five years supervisedrelease, and a $100 special assessment. Entry (ECF No. 24); J. (ECF No. 27).
Mr. Vitko filed a motion pursuant to 28 U.S.C. § 2255 on April 23, 2014. Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 32). On January 15, 2015, the Magistrate Judge issued a recommended decision for the Court to deny relief and dismiss Mr. Vitko's § 2255 motion. Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 58). However, on January 26, 2015, Mr. Vitko filed two motions, each seeking to stay proceedings regarding his § 2255 motion. Pet'r's Mot. to Stay Proceedings regarding Pending Pet. for Writ of Habeas Corpus under 28 U.S.C. § 2255 (ECF No. 59) (First Mot. to Stay); Pet'r's Mot. Requesting Stay of Proceedings relating to Pending 28 U.S.C. § 2255 Pet. (ECF No. 60) (Second Mot. to Stay). The motions cited the United States Supreme Court's January 9, 2015 order to the parties in Johnson v. United States to brief and argue "[w]hether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(B)(ii), is unconstitutionally vague." Second Mot. to Stay at 1.
On June 26, 2015, the Supreme Court decided Johnson v. United States, holding that imposing an increased sentence under the residual clause of the ACCA violates the Constitution's guarantee of due process. 135 S. Ct. 2551 (2015). On July 7, 2015, citing Johnson, Mr. Vitko filed motions to amend and supplement his § 2255 motion. Mot. for Leave to Amend 28 U.S.C. § 2255 (ECF No. 65); Mot. for Leave to Suppl. 28 U.S.C. § 2255 (ECF No. 66). The Court appointed counsel to represent Mr. Vitko on September 2, 2015. Order Appointing Counsel (ECF No. 76). On September 22, 2015, through his newly appointed counsel, Mr. Vitko filed a memorandum insupport of his § 2255 motion, arguing that Mr. Vitko's increased sentence pursuant to the residual clause of the ACCA was unconstitutional under Johnson. Mem. of Law in Supp. of Def.'s Mot. to Vacate, Set Aside, or Correct Sentence (Johnson Issue) (ECF No. 79). On November 24, 2015, the Government responded. Gov't's Resp. to Mem. in Support of Def.'s Mot. to Vacate, Set Aside or Correct Sentence (Docket # 79) (ECF No. 86). On December 9, 2015, Mr. Vitko replied. Def.'s Reply to the Gov't's Resp. (#86) in Support of Mot. to Vacate Set Aside or Correct Sentence (#32) (ECF No. 87).
On April 4, 2016, this Court held, based on Johnson, that Mr. Vitko was serving a sentence that violates the United States Constitution and relief was warranted under 28 U.S.C. § 2255. Order Den. the Recommended Decision of the Magistrate Judge and Granting Relief under 28 U.S.C. § 2255, at 1 (ECF No. 88) (Order). Citing United States v. Sanchez-Ramirez, 570 F.3d 75 (1st Cir. 2009) and James v. United States, 550 U.S. 192 (2007), the Court concluded that because Mr. Vitko's sentence was enhanced under the residual clause of the ACCA, it was unconstitutional under Johnson. Id. at 27. The Court ordered him to be resentenced. Id.
The Government filed a motion for reconsideration of the Court's Order on April 7, 2016. Gov't's Mot. for Reconsideration of Order Den. the Recommended Decision of the Magistrate Judge and Granting Relief under 28 U.S.C. § 2255 (ECF No. 91) (Gov't's Mot.). Mr. Vitko filed a response in opposition on April 18, 2016. Def.'s Resp. to the Gov't's Mot. to Reconsider (#91) the Court's Order (#88) Denying the Recommended Decision (#58) and Granting the Def.'s Mot. to Vacate, Set Aside, orCorrect Sentence (#32) (ECF No. 96) (Def.'s Opp'n).
The Government argues there are three reasons the Court should reconsider its Order granting Mr. Vitko relief pursuant to 28 U.S.C. § 2255 and instead deny his petition. Gov't's Mot. at 1. First, the Government takes issue with the Court's conclusion that, after assessing the charging documents for seven of Mr. Vitko's Florida burglaries, "it was possible that Mr. Vitko was convicted of 'nongeneric' burglary" and thus he was entitled to §[]2255 relief." Id. at 2-3 (emphasis provided by Government). The Government turns to Eleventh Circuit caselaw for the assertion that a conviction under Florida's burglary statute can qualify as "generic burglary" if the charging documents or other Shepard-approved2 sources show that the offense involved unlawful entry into an actual building or structure. Id. at 3-4 (citing United States v. Weeks, 711 F.3d 1255, 1262 (11th Cir. 2013); United States v. Jackson, 250 F. App'x 926, 927 (11th Cir. 2007); United States v. Branson, 200 F. App'x 939, 941-42 (11th Cir. 2006)). The Government also cites United States v. Matthews, 466 F.3d 1271, 1274 (11th Cir. 2006), where a defendant's Florida burglary convictions did not qualify as "generic burglary" because the charging documents and conviction did not specify whether the defendant entered the roofed portion of a structure or only its curtilage. Id. at 4. The Government maintains that the Shepard-approved charging documents for Mr. Vitko's convictions specifically allege illegal entries with intent tocommit crimes within seven dwellings or structures, that none of the charging documents alleges illegal entry into the curtilage, and thus his convictions should be subject to the ACCA's sentencing enhancement for committing generic burglary, not based on the residual clause. Id. at 4
Second, the Government asserts that while it generally has the burden to prove that a prior conviction is valid, on habeas review the burden is on the petitioner to show entitlement to relief, and when the evidence is in equipoise, the party with the burden of proof must lose. Id. at 6. The Government argues that, assuming it had any burden of production to show that Mr. Vitko had valid ACCA predicates, it satisfied that burden by presenting the Court with certified copies of the charging instruments of the seven Florida burglaries, which identify specifically by owner and address the building or dwelling entered. Id. at 9. Further, the Government argues that Mr. Vitko produced no evidence showing that his Florida convictions were for illegal entries into the curtilage, and that at best the evidence is in equipoise, and under such circumstances, because the burden of proof is on Mr. Vitko, he must lose. Id. at 10.
Finally, the Government encourages the Court to follow the approach of another District of Maine judge and revisit Mr. Vitko's prior convictions to consider whether they qualify under the "force" clause of the ACCA, which is still valid under Johnson. Id. at 11 (citing United States v. Murdock, No. 2:11-CR-08-DBH, No. 2:14-CV-205-DBH, 2016 WL 910153, at *2-4, 2016 U.S. Dist. LEXIS 30396, at *5-12 (D. Me. Mar. 9, 2016)).
Mr. Vitko argues that the Eleventh Circuit caselaw relied upon by the Government is flawed, as it ignores United States Supreme Court and Florida caselaw. Def.'s Opp'n at 3. Citing Taylor v. United States, 495 U.S. 575, 602 (1990), Mr. Vitko points to the Supreme Court's holding that:
[I]f the indictment or information and jury instructions show that the defendant was charged only with a burglary of a building, and that the jury necessarily had to find an entry of a building to convict, then [the offense is a generic burglary].
(emphasis provided by Mr. Vitko). Turning to Branson and the Eleventh Circuit's analysis of a charging document that alleged the defendant entered "a certain structure, to wit: a storage shed," Mr. Vitko explains that the court expressly noted that a jury could have convicted the defendant of entering only the curtilage of the...
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