United States District Court, N.D. West Virginia
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.
M. KEELEY UNITED STATES DISTRICT JUDGE
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).
FACTUAL AND PROCEDURAL BACKGROUND
Conviction and Sentence
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). 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).
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).
The First § 2255 Motion
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). 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).
The Instant § 2255 Motion
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.
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.
STANDARDS OF REVIEW
Magistrate Judge's R&R
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).
Pro Se Pleadings
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).
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
(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 ...