United States District Court, S.D. West Virginia, Beckley
MEMORANDUM OPINION AND ORDER
T. Copenhaver, Jr. Senior United States District Judge
is the movant's Emergency Motion to Correct Sentence
Under 28 U.S.C. § 2255, filed on June 14, 2016, by his
counsel, the Federal Public Defender who was then Christian
action was previously referred to the Honorable Dwane L.
Tinsley, United States Magistrate Judge, for submission to
the court of his Proposed Findings and Recommendation
(“PF&R”) for disposition pursuant to 28
U.S.C. § 636(b)(1)(B). On November 30, 2018, the
magistrate judge entered his PF&R recommending that the
motion be granted, and the movant's judgment in the
above-cited criminal action be vacated and set aside. The
United States timely filed objections on December 14, 2018,
to which the movant replied on December 19, 2018.
objection, the court reviews a PF&R de novo.
Specifically, “[t]he Federal Magistrates Act requires a
district court to ‘make a de novo determination of
those portions of the [magistrate judge's] report or
specified proposed findings or recommendations to which
objection is made.'” Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005)
(emphasis in original) (quoting 28 U.S.C. 636(b)(1)).
April 3, 2007, the movant pled guilty in the above-cited
criminal action 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 and a
maximum term of supervised release of three years. At
sentencing, the court found that the movant had committed at
least three prior violent felonies, thus meeting the
statutory criteria of the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e)(1), subjecting
him to a mandatory minimum sentence of fifteen years, and a
maximum term of supervised release of five years.
Specifically, as set forth in the indictment, the movant
previously committed the following offenses:
a. Convicted on or about April 22, 1986, in the Court of
Common Pleas Cuyahoga County, Ohio, of felonious assault, in
violation of Ohio Revised Code § 2903.11; robbery in
violation of Ohio Revised Code § 2911.02; and breaking
and entering in violation of Ohio Revised Code §
b. Convicted on or about February 17, 1993, in the Court of
Common Pleas Cuyahoga Court, Ohio, of felonious assault, in
violation of Ohio Revised Code § 2903.11.
Indictment, ECF # 1 at 1.
movant was sentenced to serve 180 months in prison followed
by a five-year term of supervised release. The movant's
conviction and sentence were affirmed on appeal. United
States v. Meadows, 319 Fed.Appx. 204, 205 (4th Cir. 2009),
cert. denied 556 U.S. 1203 (2009).
the Supreme Court's decision in United States v. Johnson,
135 S.Ct. 2551 (2015) (“Johnson
II”), in which the Court found the residual
clause of the ACCA to be unconstitutionally vague, the movant
filed the instant motion arguing that he no longer qualifies
as an Armed Career Criminal. Specifically, he argues that
without the residual clause, the definition of “violent
felony” no longer covers at least three of his prior
convictions. The magistrate judge agreed, finding in his
PF&R that: (1) movant's 1986 robbery conviction is a
violent felony; but (2) movant's 1986 and 1993 felonious
assault convictions are not violent felonies. The United States
objects to the latter finding; no objection was made to the
ACCA defines “violent felony” at 18 U.S.C. §
924(e)(2)(B) as follows:
term “crime of violence” means any crime
punishable by imprisonment for a term ...