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Leeson v. United States

United States District Court, N.D. West Virginia

May 11, 2018

LARRY LEESON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]

          IRENE M. KEELEY UNITED STATES DISTRICT JUDGE

         In this Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (“Motion”) filed by the pro se petitioner, Larry Leeson (“Leeson”), the question presented is whether, following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2251 (2015), Leeson's prior conviction for burglary in violation of Texas Penal Code § 30.02 qualifies as a crime of violence under the Armed Career Criminal Act (“ACCA”). Because it does not, the Court GRANTS in part and DENIES in part Leeson's Motion (Dkt. No. 1).

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Conviction and Sentence

         On September 4, 2003, a grand jury in the Northern District of West Virginia returned an indictment charging Leeson with 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) (Dkt. No. 7).[1] Despite Leeson's insanity defense, a jury convicted him of the firearm charge on September 22, 2004 (Dkt. No. 65). At Leeson's sentencing, the Court determined that he was subject to an enhanced sentence under the ACCA based on three prior convictions from Texas, which included attempted capital murder of a peace officer, aggravated robbery, and burglary of a habitation with intent to commit theft (Dkt. Nos. 70 at 11-13; 77 at 21). Leeson received a sentence of 230 months of incarceration and 5 years of supervised release (Dkt. No. 68).

         Leeson appealed his sentence, arguing that the Court had erred in considering his convictions for attempted murder and aggravated robbery as “separate occasions.” In a published opinion dated July 19, 2006, the Fourth Circuit affirmed Leeson's conviction and sentence, including the Court's decision to enhance his sentence under the ACCA (Dkt. No. 76). The Supreme Court subsequently denied Leeson's petition for a writ of certiorari. Leeson v. United States, 127 S.Ct. 1874 (2007).

         B. The First § 2255 Motion

         Leeson filed a timely motion under 28 U.S.C. § 2255, arguing that 1) the Government had failed to prove the requisite nexus with interstate commerce, 2) 18 U.S.C. § 922(g)(1) is unconstitutional, and 3) his trial counsel was ineffective (Dkt. No. 1 at 4-7).[2] The magistrate judge recommended that the Court dismiss Leeson's motion. Despite receiving an extension of time, Leeson failed to object to the recommended dismissal (Dkt. Nos. 5; 8). On June 17, 2008, the Court denied Leeson's motion and dismissed the case with prejudice (Dkt. No. 10).

         C. The Instant § 2255 Motion

         On July 6, 2016, the Fourth Circuit granted Leeson authorization to file a second or successive § 2255 motion after determining he had made a prima facie showing that the Supreme Court's decision in Johnson v. United States applied to his case (Dkt. No. 7). In his Motion, Leeson raised four claims for relief: 1) “Ineffective assistance of counsel, ” 2) “Court Error - U.S.S.G. Calculation, ” 3) “Johnson claim, ” and 4) “U.S.S.G. Manual § 4A1.2 Commentary” (Dkt. No. 9 at 5-11). The Court referred the Motion to the Honorable Robert W. Trumble, United States Magistrate Judge, for initial review.

         In its response to Leeson's Motion, the Government argued that Grounds One, Two, and Four are time-barred by 28 U.S.C. § 2255(f) because they fail to raise a newly-recognized right (Dkt. No. 16 at 10-12). It further contended that Leeson's ACCA enhancement remains valid because his predicate offenses do not rest on the ACCA's residual clause. Id. at 12-24. Magistrate Judge Trumble's report and recommendation (“R&R”) recommended that the Court deny Leeson's Motion and dismiss this case with prejudice (Dkt. No. 34). Leeson filed timely objections to the R&R, in which he “agrees that three of the claims presented are in fact time barred” (Dkt. No. 36 at 1), but objects that his 1988 conviction for burglary of a habitation with intent to commit theft, in violation of Texas Penal Code § 30.02(a), does not qualify as a crime of violence after Johnson. Id. at 1-8.

         II. STANDARDS OF REVIEW

         A. Magistrate Judge's R&R

         When reviewing a magistrate judge's R&R, the Court must review de novo only the portions to which an objection is timely made. 28 U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt, without explanation, any of the magistrate judge's recommendations to which the prisoner does not object.” Dellacirprete v. Gutierrez, 479 F.Supp.2d 600, 603-04 (N.D.W.Va. 2007) (citing Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those portions of a recommendation to which no objection has been made unless they are “clearly erroneous.” See Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).

         B. Pro Se Pleadings

         The Court must liberally construe pro se pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). A pro se petition is subject to dismissal, however, if the Court cannot reasonably read the pleadings to state a valid claim on which the petitioner could prevail. Barnett v. Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not construct the petitioner's legal arguments for him, nor should it “conjure up questions never squarely presented.” Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).

         III. APPLICABLE LAW

         It is appropriate to begin with a brief discussion of the law applicable to Leeson's sentence. Leeson was convicted in 2005 of violating 18 U.S.C. § 922(g) by being a felon in possession of a firearm. At that time, the ACCA imposed an enhanced sentence of 15 years to life imprisonment if a defendant had three previous convictions for a “violent felony” or “serious drug offense.” Serious drug offenses included those under the Controlled Substance Act for which the maximum term of imprisonment was 10 years or more. 18 U.S.C. § 924(e)(2)(A). Violent felonies included those punishable by more than one year in prison that:

(i) ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) [were] burglary, arson, or extortion, involve[d] use of explosives, or otherwise involve[d] conduct that present[ed] a serious potential risk of physical injury to another.

Id. § 924(e)(2)(B). Subsection (i) is known as the “force clause”; subsection (ii) contains “enumerated offenses” and the so-called “residual clause, ” which is the focus of Leeson's Motion. Without an ACCA enhancement, being a felon in possession of a ...


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