United States District Court, S.D. West Virginia, Charleston Division
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley, United States Magistrate Judge.
before the court is Movant, Roger Burress' (hereinafter
“Defendant”) Motion to Vacate, Set Aside or
Correct Sentence (ECF No. 202). This matter is assigned to
the Honorable John T. Copenhaver, Jr., United States District
Judge, and it is referred to the undersigned United States
Magistrate Judge for submission of proposed findings and a
recommendation for disposition, pursuant to 28 U.S.C. §
federal conviction and direct appeal
14, 2003, pursuant to a written plea agreement, Defendant
pled guilty in this United States District Court to one count
of being a felon in possession of a firearm, in violation of
18 U.S.C. § 922(g)(1), which carried a maximum sentence
of ten years in prison. However, at sentencing, which
occurred on January 20, 2005, this Court found that Defendant
had committed three prior felony offenses categorized as
“violent felonies” under 18 U.S.C. §
924(e)(2)(B) (the “Armed Career Criminal Act” or
“ACCA”). As specified in Count Two of the
Indictment, Defendant was previously convicted of the
following felony offenses:
. 1979 - kidnapping in violation of Ohio
Rev. Code § 2905.01
. 1979 - attempted rape in violation of Ohio
Rev. Code § 2907.02
. 1982 - aggravated burglary in violation of
Ohio Rev. Code § 2911.11
. 1989 - aggravated burglary in violation of
Ohio Rev. Code § 2911.11
(ECF No. 12 at 2-3). As a result of these prior convictions,
Defendant was classified as an armed career criminal, and was
subject to a mandatory minimum sentence of fifteen years (or
180 months) of imprisonment, pursuant to 18 U.S.C. §
924(e)(1). He also received a sentencing enhancement
from a level 20 to a level 33 under section 4B1.4(b)(3)(B) of
the United States Sentencing Guidelines. Defendant was
sentenced to serve 210 months in prison, followed by a
five-year term of supervised release. (Judgment, ECF No.
118). Defendant's Judgment was affirmed on appeal.
United States v. Burress, 177 Fed.Appx. 278
(4th Cir. 2006).
prior section 2255 proceedings
January 13, 2010, Defendant, proceeding pro se,
filed a Motion to Vacate, Set Aside or Correct Sentence under
28 U.S.C. § 2255 (ECF Nos. 151 and 152), which was
dismissed as being untimely filed. (No. 2:03-cr-00024 and No.
2:10-cv-00034, ECF Nos. 151, 158). Defendant's request
for a certificate of appealability was denied and his appeal
of that decision was dismissed on November 3, 2010.
(Id., ECF Nos. 165, 166). A Mandate issued on
December 27, 2010. (Id., ECF No. 168).
subsequently filed two Motions to Dismiss Indictment,
Conviction and Sentence for Lack of Exclusive Jurisdiction
and Subject Matter Jurisdiction (ECF Nos. 169, 171), which
were construed to be section 2255 motions and were denied and
dismissed by the presiding District Judge on August 17, 2016
as unauthorized second or successive section 2255 motions.
(ECF No. 209).
26, 2015, the Supreme Court decided United States v.
Johnson, 135 S.Ct. 2551 (2015) (“Johnson
II”), holding that the residual clause of the ACCA
is unconstitutionally vague and further finding that
imposition of an increased sentence thereunder violates due
process. As noted by the government herein, the Supreme Court
specifically excluded the remainder of the ACCA from its
holding in Johnson II. The Court stated,
“Today'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
criteria of the element or force clause contained in section
924(e)(2)(B)(i) or the enumerated offenses of burglary,
arson, extortion or crimes involving explosives under section
924(e)(2)(B)(ii). (ECF No. 211 at 4).
April 18, 2016, the Supreme Court decided Welch v. United
States, 136 S.Ct. 1257 (2016), in which the Court
determined that Johnson II changed the substantive
reach of the ACCA, and therefore was a substantive, rather
than a procedural decision. Therefore, the Court held that
Johnson II announced a new substantive rule that
applies retroactively to cases on collateral review.
current section 2255 motion and Supplemental Brief
6, 2016, attorney W. Michael Frazier was appointed to
represent Defendant for the purpose of determining whether he
qualifies for federal habeas relief in light of Johnson
II. (ECF No. 194). On June 13, 2016, Defendant was
authorized by the United States Court of Appeals for the
Fourth Circuit to file a second or successive section 2255
motion asserting a Johnson II claim. (ECF Nos. 200
and 201). That same date, in ECF No. 202, the court
re-docketed the pro se Motion to Re-sentence that
had been docketed as ECF No. 175 and permitted Defendant, by
counsel, to file a Supplemental Brief addressing his
Johnson II claim. (ECF No. 207). Defendant's
Supplemental Brief, which was filed on July 27, 2016, asserts
that, after Johnson II, none of his predicate
offenses qualify as violent felonies under the ACCA.
Defendant asserts that his aggravated burglary offenses are
broader than the definition of generic burglary used to
qualify a burglary as an enumerated offense under the ACCA.
See Taylor v. United States, 495 U.S. 575, 599
(1990) (defining generic burglary as “any crime,
regardless of its exact definition or label, having the basic
elements of unlawful or unprivileged entry into, or remaining
in, a building or structure, with intent to commit a
crime.”) (ECF No. 207 at 3-4). The Supplemental Brief
further contends that Defendant's predicate offenses do
not meet the force clause of the ACCA because each crime can
be committed without the use of violent force. (Id.
at 4-6). Thus, Defendant contends that he does not qualify as
an armed career criminal and that his original sentence
“was in excess of the maximum authorized by law”
or “imposed in violation of the Constitutional and laws
of the United States.” 28 U.S.C. § 2255.
Accordingly, he contends that he is entitled to relief under
section 2255 and to be re-sentenced to time served with no
term of supervised release. (Id. at 6-7, 9).
August 23, 2016, the United States (hereinafter “the
Government”) filed a Response to Defendant's
section 2255 motion. (ECF No. 211). The response first
asserts that, “as the moving party in a civil
collateral attack, [Defendant] bears the burden of proving
that his sentence was unlawful.” (Id. at 5).
The response further contends that “If the prisoner
fails to show that his sentence is unlawful on one of the
specified grounds [of 28 U.S.C. § 2255], ‘the
court must deny the petition.'” United States
v. Pettiford, 612 F.3d 270, 277-78 (4th Cir.
2010), citing United States v. Hadden, 475 F.3d 652,
661 (4th Cir. 2007). (Id.) Relying upon
authority from the Seventh and Eleventh Circuits, the
Government's response further asserts that, unless it is
clear from the record that the District Court specifically
found Defendant's prior crimes to be violent felonies
under the residual clause, his convictions remain unaffected
by Johnson II and his section 2255 motion must be
denied. See Stanley v. United States, No. 15-3728,
2016 WL 3514185, at *3 (7th Cir. June 27, 2016);
accord In re Moore, No. 16-13993-J and 16-14361-J,
2016 WL 4010433, at *3-4 (11th Cir. July 27,
2016). (Id. at 5, 11).
Government further contends that all of the state statutes
involved are “divisible” (that is, they set forth
alternative elements of the crime) and, using the
“modified categorical approach” (discussed
infra), Defendant's convictions satisfy the
“force” clause of the ACCA because each crime has
as an alternative element “the use, attempted use, or
threatened use of physical force” as contemplated by 18
U.S.C. § 924(e)(2)(B)(i). (Id. at 5-6). The
response, however, does not request immediate dismissal of
the section 2255 motion, but rather requests that Defendant
be given an opportunity to supplement the record with
appropriate documentation sanctioned under the modified
categorical approach, see Shepard v. United States,
544 U.S. 13, 26 (2005) (approving review of certain records
when conducting modified categorical approach to determine
ACCA predicate conviction), to enable the court to determine:
(1) whether the District Court relied upon the residual
clause in finding Defendant's prior convictions to be
violent felonies; and (2) whether Defendant's prior
convictions meet the force clause. (Id. at 10-12).
August 31, 2016, Defendant, by counsel, filed a reply brief
(ECF No. 212), asserting that the three statutes setting
forth the elements of the Defendant's prior convictions
are not “divisible” and, thus, it is not
appropriate to use the modified categorical approach to
determine the elements of those crimes. The reply further
The Government attempts to muddy the waters by arguing more
information is needed for this Court to decide. However, as
Movant's initial brief showed, none of his predicates
qualify under the force clause; the Government concedes none
of his predicates were enumerated offenses, and the residual
clause is now unconstitutional. It does not matter which
avenue the Court took, since none of the three can now
satisfy ACCA. Movant does not believe the modified
categorical approach is applicable here, but even reviewing
Shepard documents, the fact remains Mr. Burress'
prior crimes are not crimes of violence and cannot support an
(Id. at 4).
19, 2017 ...