Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Burress v. United States

United States District Court, S.D. West Virginia, Charleston Division

January 10, 2018



          Dwane L. Tinsley, United States Magistrate Judge.

         Pending 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. § 636(b)(1)(B).


         Defendant's federal conviction and direct appeal

         On July 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”).[1] 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).[2] 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).[3] 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.[4] 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).

         Defendant's prior section 2255 proceedings

         On 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).

         Defendant 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).

         On June 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).

         On 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.

         Defendant's current section 2255 motion and Supplemental Brief

         On May 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).[5] 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.

         Specifically, 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).

         The Government's Response

         On 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).

         The 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).

         Defendant's Reply

         On 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 states:

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 ACCA enhancement.

(Id. at 4).

         April 19, 2017 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.