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Henderson v. United States

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

September 16, 2016

ALPHONZO HENDERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 06-CR-00391-ODS-1

          ORDER AND OPINION GRANTING PETITIONER'S MOTION TO CORRECT SENTENCE UNDER 28 U.S.C. § 2255

          ORTRIE D. SMITH, SENIOR JUDGE

         Pending is Petitioner Alphonzo Henderson's Motion to Correct Sentence under 28 U.S.C. § 2255. Doc. #1. Petitioner seeks to be resentenced pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the Armed Career Criminal Act's (“ACCA”) residual clause is unconstitutional. The Government contends Johnson did not impact Petitioner's sentence and he remains an armed career criminal. Doc. #7, at 1. The Government further argues Petitioner's motion is based on Mathis v. United States, 136 S.Ct. 2243 (2016), a decision the Government contends does not apply retroactively and affords no relief to Petitioner. Id. at 2. For the reasons stated below, the Court grants Petitioner's motion.

         I. BACKGROUND

         On October 30, 2007, Petitioner was found guilty after a jury trial of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). 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 of the definition constitutes the “residual clause” held unconstitutional in Johnson.

         A presentence investigation report (“PSR”) was prepared after Petitioner's trial in which he was found guilty. Although the PSR did not specify which convictions supported an ACCA enhanced sentence, the PSR found Petitioner had at least three qualifying convictions. The PSR indicated Petitioner had prior convictions for first-degree burglary, second-degree burglary, sodomy, second-degree assault, armed criminal action, and unlawful use of a weapon. On April 15, 2008, the Court sentenced Petitioner to 262 months' imprisonment.

         Petitioner asserts his two burglary, unlawful use of a weapon, and sodomy convictions do not qualify as predicate offenses and he is not subject to the ACCA's enhanced sentencing provisions. The Government concedes Petitioner's sodomy conviction does not qualify as an ACCA predicate offense. See Doc. #7, at 1, n. 1. Petitioner's second-degree assault, armed criminal action, and unlawful use of a weapon convictions qualify as only one ACCA predicate offense if the Court determines the three convictions occurred on the same occasion. See 18 U.S.C. § 924(e)(1) (to qualify under the ACCA, offenses must be “committed on occasions different from one another”). Therefore, if Petitioner's burglary convictions are not ACCA qualifying offenses, and the incident involving Petitioner's second-degree assault, armed criminal action, and unlawful use of a weapon convictions did not occur on different occasions, Petitioner does not have three ACCA qualifying offenses and is no longer an armed career criminal.

         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 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)

         The Government argues Mathis, which held Iowa's second-degree burglary statute could not be used to enhance a defendant's sentence under the ACCA, does not apply retroactively. Doc. #7, at 11. If true, Petitioner is not entitled to relief. 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)

         The Government also argues Petitioner's claim is procedurally defaulted because he did not object to the use of his burglary convictions as ACCA predicate offenses during his sentencing or on direct appeal. Doc. #7, at 5. A movant is generally barred from asserting claims in a section 2255 appeal, such as Petitioner's claim here, that the movant failed to raise on direct appeal. See McNeal v. United States, 249 F.3d 747, 749 (8th Cit. 2001). A movant may raise a procedurally defaulted claim on appeal by demonstrating cause for the default and prejudice or actual innocence. Id. However, Johnson, the case upon which Petitioner makes his motion, announced a new substantive rule of law. Welch, 136 S.Ct. at 1268. Because this rule of law was unavailable to Petitioner at the time of his sentencing, Petitioner did not procedurally default his ability to challenge the length of his sentence in light of Johnson. See Reed v. Ross, 468 U.S. 1, 16 (1984) (holding ...


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