United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is Edward Lee Lewis's Motion to Correct
Sentence Under 28 U.S.C. § 2255 [ECF No. 252]. This
matter is referred to the Honorable Dwane L. Tinsley, United
States Magistrate Judge, for submission of proposed findings
and a recommendation for disposition, pursuant to 28 U.S.C.
§ 636(b)(1)(B). For reasons appearing to the court, it
is hereby ORDERED that the referral of this
matter to the Magistrate Judge is WITHDRAWN.
Procedural History and Positions of the Parties
August 16, 2002, following a jury trial, Mr. Lewis was
convicted of four counts of mailing threatening
communications in violation of 18 U.S.C. § 876; one
count of mailing threatening communications to the President
in violation of 18 U.S.C. § 871; and one count of being
a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). Mr. Lewis had
previously been convicted in the Circuit Court of Putnam
County, West Virginia of three counts of daytime burglary in
violation of W.Va. Code § 61-31-11.
sentencing, which occurred on November 7, 2002, this court
found that Mr. Lewis's three prior daytime burglary
convictions were “violent felonies” as defined by
18 U.S.C. § 924(e)(2)(B). As a result of these prior
convictions, Mr. Lewis was classified as an armed career
criminal under 18 U.S.C. § 924(e) (the “Armed
Career Criminal Act” or “ACCA”). The ACCA
provides for a sentencing enhancement for a felon possessing
a firearm or ammunition when the defendant has three prior
convictions for violent felonies and/or serious drug
offenses. With this enhancement, Mr. Lewis was subject to a
mandatory minimum sentence of fifteen years of
imprisonment. Mr. Lewis was sentenced to serve 192
months in prison, followed by a three-year term of supervised
release. J., No. 2:02-cr-42 [ECF No. 88]. Mr. Lewis's
sentence was affirmed on appeal. United States v.
Lewis, 75 F. App'x 164 (4th Cir. 2003).
September 16, 2004, Mr. Lewis, proceeding pro se,
filed a Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255. Mot. Vacate, No. 2:02-cr-42 [ECF No.
126]. This motion was denied on November 30, 2005. Mem. Op.
& Order, No. 2:02-cr-00042 [ECF No. 146]. Mr. Lewis was
denied a certificate of appealability, and his appeal of the
decision denying his § 2255 motion was dismissed on
August 25, 2006. United States v. Lewis, No.
05-7936, 2006 WL 2467337 (4th Cir. Aug. 25, 2006). Mr. Lewis
subsequently filed a number of other motions that are not
relevant to the instant matter.
26, 2015, the Supreme Court decided United States v.
Johnson, 135 S.Ct. 2551, 2557 (2015), holding that the
residual clause of the ACCA is unconstitutionally vague
and further holding that the imposition of an increased
sentence thereunder violates due process. As noted by the
United States, the Supreme Court specifically excluded the
remainder of the ACCA from its holding in Johnson.
The Court stated, “[t]oday'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.” Id. at 2563. Thus, a prior
conviction may still qualify as a violent felony if it meets
the element of force criterium contained in
§924(e)(2)(B)(i) (“the force clause”) or is
one of the enumerated offenses contained in §
924(e)(2)(B)(ii) (“the enumerated offense
clause”), namely burglary, arson, extortion, or a crime
April 18, 2016, the Supreme Court decided Welch v. United
States, 136 S.Ct. 1257, 1265 (2016), in which the Court
determined that Johnson was a substantive, rather
than a procedural, decision because it affected the reach of
the underlying statute rather than the judicial procedures by
which the statute is applied. Therefore, the Court held that
Johnson announced a new substantive rule that
applies retroactively to cases on collateral review.
6, 2016, attorney W. Michael Frazier was appointed to
represent Mr. Lewis for the purpose of determining whether he
qualifies for federal habeas relief under § 2255 in
light of Johnson. Order [ECF No. 246]. On June 21,
2016, Mr. Lewis was authorized by the United States Court of
Appeals for the Fourth Circuit to file a second § 2255
motion asserting a Johnson claim. Notice [ECF No.
250]; Order [ECF No. 251]. That same date, the court docketed
the instant Motion to Correct Sentence [ECF No. 252], and
subsequently permitted Mr. Lewis to file a Supplemental Brief
addressing his Johnson claim, which was filed on
August 11, 2016. Suppl. Br. [ECF No. 258]. Mr. Lewis's
brief asserts that, after Johnson, his prior daytime
burglary offenses no longer qualify as “violent
felonies” under the ACCA.
September 12, 2016, the United States (“the
Government”) filed a Response to Mr. Lewis's §
2255 motion and Supplemental Brief. Answer to Def.'s
Suppl. Br. [ECF No. 268]. The Government's Response
asserts that, in order to prevail on his second § 2255
motion, Mr. Lewis has the burden of proving by a
preponderance of the evidence that his claim for relief is
based upon a new rule of constitutional law and, thus,
“is unlawful on one of the specified grounds.”
Id. at 4 (quoting United States v.
Pettiford, 612 F.3d 270, 277 (4th Cir. 2010)).
Government's Response further contends that because
“the defendant's challenge is nominally based on
Johnson, he must prove that he was sentenced under
the residual clause of the ACCA and that the use of that
clause made a difference in sentencing.” Id.
at 4. Relying upon authority from the Seventh and Eleventh
Circuits, the Government asserts that, unless it is clear
from the record that the District Court specifically found
Mr. Lewis's prior crimes to be “violent
felonies” under the residual clause, his convictions
remain unaffected by Johnson and his § 2255
motion must be denied. Id. at 4-5 (citing
Stanley v. United States, No. 15-3728, 2016 WL
3514185, at *3 (7th Cir. June 27, 2016); In re
Moore, No. 16-13993-J & 16-14361-J, 2016 WL 4010433,
at *3-4 (11th Cir. July 27, 2016)). The Government further
contends that Mr. Lewis cannot meet this burden because the
record fails to indicate the basis for the finding that Mr.
Lewis's three prior daytime burglary convictions were
convictions for “violent felonies.” Id.
September 14, 2016, Mr. Lewis filed Movant's Response to
Government's Argument, in which he concedes that he has
to prove that he is entitled to the relief he seeks, but
further contends that “it would be a rare case where a
district judge expressly states ‘I hereby sentence you
under the residual clause.'” Movant's Resp. to
Gov't's Arg. 1 (“Reply”) [ECF No. 269].
The Reply further states:
We have no direct evidence of how the judge arrived at his
enhancement, as the judge merely recited statutory terms. But
to qualify Movant for an ACCA sentence, the judge
had to use one of three avenues; the force clause,
the enumerated offense clause, or the residual clause. He
could not have used the force clause, because his prior
felonies do not qualify under that, as discussed in the
initial brief. He could not have used the enumerated offense
clause as West Virginia burglary is broader than the
“generic” definition, and thus would not qualify.
So the only way the judge could have arrived at the ACCA
enhancement is via the residual clause, which
Movant believes it is obvious his argument is based on a
“new rule . . . that was unavailable to him at trial or
on direct appeal.” The recent case of United States
v. Desmond Ra'Keesh White, ___ F.3d ___, 2016 WL
4717943 (4th Cir. Sept. 9, 2016) effectively closed this
argument for the Government. “It would have been futile
for [Mr. Lewis] to argue that those [burglary] convictions
did not qualify as ACCA violent felonies because they fell
under the residual clause.” [Id.] at Page 16.
That is the case here precisely. Movant could not have argued
the residual clause ...