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Miller v. United States

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

April 23, 2018

BART ALLEN MILLER, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         Pending before the court is Movant, Bart Allen Miller's (hereinafter “Defendant” Motion to Vacate, Set Aside or Correct Sentence (ECF No. 38). This matter is assigned to the Honorable John T. Copenhaver, Jr., 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) and the Standing Order of this Court entered on May 31, 2016. For the reasons stated herein, it is respectfully RECOMMENDED that the presiding District Judge GRANT Defendant's section 2255 motion, vacate and set aside Defendant's judgment, and resentence Defendant to time served with a corrected term of supervised release of three years.

         PROCEDURAL HISTORY

         On April 1, 2002, Defendant pled guilty in this United States District Court, pursuant to a written plea agreement, to a one-count indictment charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). (ECF Nos. 18-19). However, Defendant's indictment further alleged that he had the following prior felony convictions:

1. Unlawful wounding, in violation of W.Va. Code § 61-2-9 (1983);
2. Grand larceny, in violation of W.Va. Code § 61-3-13 (1986);
3. Breaking and entering, in violation of W.Va. Code § 61-3-12 (1987);
4. Breaking and entering, in violation of W.Va. Code § 61-3-12 (1991) (two counts);
5. Third degree sexual assault, in violation of W.Va. Code § 61-8B-5 (1991).

(ECF No. 9). Defendant's Presentence Investigation Report (“PSR”) identified the sexual assault conviction, the two 1991 breaking and entering convictions, and the unlawful wounding conviction as predicate offenses that could serve as “violent felonies” to support a finding that Defendant was an armed career criminal, as defined by 18 U.S.C. § 924(e), the “Armed Career Criminal Act” or “ACCA”).[1] There does not appear to have been any dispute that, under the law at the time of Defendant's sentencing, Defendant qualified to be sentenced as an armed career criminal.

         At sentencing, which occurred on August 19, 2002, the district court found Defendant to be an armed career criminal and sentenced him to serve 188 months in prison, followed by a five-year term of supervised release. (Judgment, ECF No. 24). Defendant did not appeal his conviction and sentence to the United States Court of Appeals for the Fourth Circuit. Nor did he file a prior section 2255 motion.

         On June 17, 2015, Defendant completed his term of imprisonment and began serving his five-year term of supervised release. (ECF No. 42 at 2).

         On June 26, 2015, the Supreme Court decided United States v. Johnson, 135 S.Ct. 2551 (2015), holding that the residual clause of the ACCA is unconstitutionally vague and further finding that imposition of an increased sentence thereunder violates due process. On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S.Ct. 1257 (2016), in which the Court determined that Johnson changed the substantive reach of the ACCA, and, therefore, 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 was applied. Therefore, the Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review.

         On May 11, 2016, the Federal Public Defender for the Southern District of West Virginia was appointed to represent Defendant for the purpose of determining whether Defendant qualifies for federal habeas relief in light of Johnson. On June 24, 2016, Defendant, by counsel, timely filed the instant Motion to Vacate, Set Aside or Correct Sentence addressing his Johnson claim. (ECF No. 38). Defendant's motion asserts that this Court should vacate his sentence and re-sentence him without any further term of supervised release.

         On July 26, 2016, the United States of America (“the government”) filed a Response to Defendant's section 2255 motion (ECF No. 42), in which the government, without conceding the merits of Defendant's arguments, acknowledges that it has no objection to re-sentencing ...


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