United States District Court, S.D. West Virginia
PROPOSED FINDINGS AND RECOMMENDATION
L. Tinsley United States Magistrate Judge.
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).
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.
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.
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). 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).
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).
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.
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).
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
28 U.S.C. § 2255 [Emphasis ...