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Lacy v. United States

United States District Court, W.D. Missouri, Western Division

August 30, 2016

PHILLIP LACY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 09-CR-00389-ODS

          ORDER AND OPINION (1) GRANTING PETITIONER'S AMENDED MOTION TO ALTER OR AMEND JUDGMENT ENTERED JUNE 10, 2016, AND (2) VACATING COURT'S ORDER DATED JUNE 10, 2016

          ORTRIE D. SMITH, SENIOR JUDGE

         Earlier this year, Petitioner Phillip Lacy sought to vacate his sentence pursuant to Johnson v. United States, 1345 S.Ct. 2551 (2015), which held the Armed Career Criminal Act's (“ACCA”) residual clause is unconstitutional. Doc. #1. The Government opposed Petitioner's motion, arguing his sentence was still proper under other provisions of the ACCA. Doc. #7. On June 10, 2016, the Court denied Petitioner's motion based upon the law of the Eighth Circuit at that time. Doc. #9.

         On June 23, 2016, the Supreme Court issued its decision in Mathis v. United States, 136 S.Ct. 2243 (2015). The Supreme Court reversed the Eighth Circuit's finding that the Iowa second degree burglary conviction did not qualify as a predicate offense under the ACCA. Id. at 2253. Shortly thereafter, Petition filed the motion currently pending - Petitioner's Amended Motion to Alter or Amend Judgment to Issue Certificate of Appealability. Doc. #12. Petitioner asks the Court to amend its judgment and grant his initial motion under 28 U.S.C. § 2255 or amend the judgment and issue him a certificate of appealability. For the reasons stated below, the motion is granted, and the Court's Order dated June 10, 2016 is vacated.

         I. BACKGROUND

         On August 20, 2010, Petitioner pled guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). Ordinarily, that offense carries a maximum punishment of ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, the ACCA requires a minimum sentence of fifteen years if a person violating 18 U.S.C. § 922(g) has three prior convictions for a “violent felony.” 18 U.S.C. § 922(e)(1). A “violent felony” is defined as a felony that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) burglary, arson, or extortion, involves the use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added). The italicized portion constitutes the “residual clause” held unconstitutional in Johnson.

         A presentence investigation report (“PSR”) was prepared after Petitioner pled guilty. The PSR found Petitioner had at least three qualifying prior convictions of burglary in the second degree (all occurring in 2007) in violation section 569.170 of the Missouri Revised Statutes. These three convictions triggered a minimum sentence of fifteen years under the ACCA's “violent felony” provision. On January 7, 2011, Petitioner was sentenced to 94 months' imprisonment and three years of supervised release. The Court departed from the mandatory minimum based on a motion filed by the Government.

         In light of Mathis, Petitioner contends his three prior Missouri convictions of second degree burglary do not qualify him for the ACCA enhancement. The Government opposes his motion, arguing Mathis does not apply retroactively on collateral review. Doc. #13, at 1.

         II. DISCUSSION

         “A prisoner…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 sentence was in excess of the maximum authorized by law…may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 18 U.S.C. § 2255(a). The Court first finds Petitioner's initial motion to vacate was timely because it was filed within one year of the Supreme Court's decision in Johnson. See 28 U.S.C. § 2255(f)(3). The Court also finds, based upon Welch v. United States, 136 S.Ct. 1257 (2016), that Johnson applies retroactively.

         A. Retroactivity

         The Government's argument against Petitioner's current motion is that Mathis does not apply retroactively. Mathis, however, did not present a new rule of criminal procedure. Welch, 136 S.Ct. at 1264 (stating “new constitutional rules of criminal procedure will not be applicable to those cases which have been final before the new rules are announced” but “new substantive rules generally apply retroactively.”) (citations and internal quotations omitted).

         In Mathis, the Supreme Court made clear its decision followed decades of precedent. 136 S.Ct. at 2447. Justice Kagan wrote: “For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense.” Id. She further stated: “For more than 25 years, we have repeatedly made clear that application of ACCA involves, and involves only, comparing elements.” Id. at 2257. In Mathis, the Supreme Court noted the “elements-based approach” was and remains the law. Id. The Supreme Court simply examined whether “a statute that lists multiple, alternative means for satisfying one (or more) of its elements” is an exception to that rule. Id. at 2248.

         Relying on twenty-five years of precedent, the Supreme Court examined Iowa's second degree burglary statute. In doing so, it applied the “elements-based approach, ” an approach that has been the law for more than two decades. Thus, Mathis does not present a new rule or procedure. This is further established in at least two of the Eighth Circuit's recent decisions discussing Mathis. On July 21, 2016, the Eighth Circuit remanded a matter to a district court to determine, in light of Mathis, whether Missouri's burglary statute lists alternative means or alternative elements. United States v. Bess, Case No. 15-3806, 2016 WL 3923888, at *1-2 (8th Cir. July 21, 2016). Further, on August 9, 2016, the Eighth Circuit applied Mathis and its reasoning in examining Minnesota's second degree assault statute. United States v. Headbird, Case No. 15-3178, 2016 WL 4191186, at *2-3 (8th Cir. Aug. 9, 2016). Both matters were submitted to the Eighth Circuit prior to Mathis. In neither case did the Eighth Circuit indicate concerns with retroactivity. Rather, the Eighth Circuit's actions indicate retroactivity is not at issue. Accordingly, the Court rejects the Government's argument that Mathis should not be applied retroactively.

         B. Burglary ...


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