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West v. United States

United States District Court, S.D. West Virginia

July 31, 2019

WILLIE WEST, JR., Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          Dwane L. Tinsley United States Magistrate Judge.

         Pending before the court is Movant, Willie West, Jr.'s (hereinafter “Defendant”) Emergency Motion to Correct Sentence under 28 U.S.C. § 2255 (ECF No. 56). This matter is assigned to the Honorable John T. Copenhaver, Jr., Senior 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).

         PROCEDURAL HISTORY

         On June 19, 2007, Defendant pled guilty to one count of witness tampering, in violation of 18 U.S.C. § 1512(a)(1)(C), and one count knowingly using, carrying, and discharging a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(iii). On October 2, 2007, Defendant was sentenced to 15 years of imprisonment, followed by a three-year term of supervised release on Count One, and a consecutive term of ten years of imprisonment, followed by a five-year term of supervised release on Count Two. Defendant was also ordered to pay restitution in the amount of $5, 106.49 and a $200 special assessment. (ECF No. 47). Defendant did not appeal his conviction or sentence to the United States Court of Appeals for the Fourth Circuit. Nor has he filed a prior motion under 29 U.S.C. § 2255.

         On June 26, 2015, the Supreme Court decided United States v. Johnson, 135 S.Ct. 2551 (2015) (“Johnson 2015”), holding that the residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B), 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 2015 changed the substantive reach of the ACCA, rather than the judicial procedures by which the statute was applied. Therefore, the Court held that Johnson 2015 announced a new substantive rule that applies retroactively to cases on collateral review.

         On June 15, 2016, the Office of the Federal Public Defender for the Southern District of West Virginia was appointed to represent Defendant for the purpose of determining whether he is entitled to any relief under Johnson 2015. (ECF No. 54). On June 23, 2016, Defendant, by counsel, filed the instant Emergency Motion to Correct Sentence under 28 U.S.C. § 2255 (“section 2255 motion”), asserting that the analysis in Johnson 2015 also invalidates the residual clause contained in section 924(c)(3)(B), and that his crime of tampering with a witness does not otherwise qualify as a crime of violence under the force clause contained in section 924(c)(3)(A).[1] Consequently, he asserts that he is actually innocent of violating section 924(c) and that his conviction and consecutive sentence thereunder should be vacated. (ECF No. 56).[2]

         On November 14, 2016, the United States of America (“the government”) filed a Response to Defendant's section 2255 motion. (ECF No. 64). The government's Response asserts that Defendant's section 2255 motion is untimely and that his claim concerning his section 924(c) conviction and sentence is procedurally defaulted because his claim that his witness tampering offense does not meet the force clause contained in section 924(c)(3)(A) should have been raised in a direct appeal or a section 2255 motion filed within one year of his judgment becoming final. (Id. at 11-15). The Response further asserts that Johnson 2015, which dealt with the residual clause of the ACCA, does not extend to section 924(c) and, at any rate, the witness tampering offense meets the force clause of section 924(c), such that it remains a crime of violence thereunder. (Id. at 7-10, 15-24).

         On February 2, 2017, Defendant, by counsel, filed a Reply (ECF No. 70), asserting that his claim is not barred by the procedural default doctrine, and that it is not untimely or premature because it involves the extension of a new substantive rule of constitutional law that enables him to seek collateral review within one year of such decision. (Id. at 7-9). Defendant further reiterates his argument that his witness tampering offense does not meet the force clause of section 924(c) and, thus, cannot serve as a crime of violence thereunder.

         APPLICABLE STATUTORY AUTHORITY

         Section 2255(a) of Title 28 provides as follows:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C.A. § 2255(a).

         In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act of 1996 (hereinafter the “AEDPA”), which established a one-year period of limitation governing the filing of motions for collateral relief under 28 U.S.C. § 2255. The one-year period runs from the latest of one of four specified events:

(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making such motion by governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court if that right has been duly recognized by the Supreme Court and made retroactively applicable to cases on review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. ยง 2255 [Emphasis ...


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