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Givens v. United States

United States District Court, E.D. Missouri, Eastern Division

December 15, 2016

HAROLD GIVENS, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          CHARLES A. SHAW UNITED STATES DISTRICT JUDGE

         This matter is before the Court on movant Harold Givens' motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, based on Johnson v. United States, 135 S.Ct. 2551 (2015). Johnson held that the Armed Career Criminal Act's[1] (“ACCA”) residual clause is unconstitutional. The government opposes the motion, arguing that Johnson does not affect movant's sentence and he remains an armed career criminal because his ACCA predicate offenses were force/elements and enumerated clause convictions, not residual clause violent felonies. The government also argues that movant's motion is not cognizable in a successive habeas action because it actually seeks relief based on statutory interpretation principles set forth in Mathis v. United States, 136 S.Ct. 2243 (2016), and does not rely on a new rule of constitutional law, as required by 28 U.S.C. § 2255(h)(2). For the reasons stated below, the Court will grant movant's motion.

         I. Background

         On December 18, 2003, movant was charged in an indictment with being a: felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count I); felon in possession of firearms and ammunition, in violation of 18 U.S.C. § 922(g)(1) (Count II); and felon in possession of a firearm with a removed, obliterated, or altered serial number, in violation of 18 U.S.C. § 922(k) (Count III). See United States v. Givens, 4:03-CR-764 CAS (E.D. Mo.) (Doc. 1). Following a mental competency examination, movant entered into a plea agreement with the government on March 17, 2005, under which he agreed to plead guilty to Count II in exchange for the government's agreement to dismiss Counts I and III.

         A presentence investigation report (“PSR”) was prepared after movant's plea. The PSR stated that movant met the Armed Career Criminal provisions of United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.4 because he had at least three prior convictions for violent felonies. The PSR did not specify which of movant's convictions were for violent felonies. Movant's prior convictions included Missouri felony offenses of (1) second-degree burglary committed in 1988, (2) second-degree robbery committed in 1988, and (3) second-degree burglary committed in 1994. On June 21, 2005, the Court sentenced movant to the mandatory minimum term of 180 months and a three-year period of supervised release.

         Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on August 18, 2008. The Court denied the motion as both time barred and without merit, and denied a certificate of appealability. Givens v. United States, No. 4:08-CV-1207 CAS (E.D. Mo.) (Order of Oct. 21, 2008).

         After the Supreme Court decided Johnson, movant filed a successive motion to vacate, set aside or correct sentence which this Court denied without prejudice because movant had not obtained permission from the Eighth Circuit Court of Appeals, as required by 28 U.S.C. § 2255(h). The Court transferred the motion to the Eighth Circuit, which granted movant's petition for authorization to file a successive habeas application. Givens v. United States, No. 15-2973 (8th Cir. June 24, 2016). This Court then directed the Clerk of the Court to open movant's successive motion to vacate as a new civil case bearing the instant case number.

         II. Legal Standard

         A district court may vacate, set aside, or correct a federal sentence if “the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). Movant bears the burden to show he is entitled to relief. Day v. United States, 428 F.2d 1193, 1195 (8th Cir. 1970). In a case involving an ACCA conviction such as this one, “the movant carries the burden of showing that the Government did not prove by a preponderance of the evidence that his conviction fell under the ACCA.” Hardman v. United States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016); see also Hardman v. United States, __ F.Supp.3d __, 2016 WL 3702798, at *2-3 (W.D. Mo. June 3, 2016) (denying government's motion for reconsideration on the issue of the burden of proof).

         III. Discussion

         In the instant motion, movant asserts that his 1994 Missouri second-degree conviction for burglary of an inhabitable structure no longer qualifies as a predicate offense now that Johnson has declared the ACCA's residual clause unconstitutional.[2] The government responds that despite Johnson, movant is still subject to the armed career criminal enhancement because his status does not rest on the ACCA's residual clause. The government asserts that movant's burglary conviction was classified as a violent felony under the enumerated clause of the ACCA, not the residual clause. The government relatedly asserts that movant fails to establish his sentence was infected by constitutional - i.e., residual-clause - error, because he points to nothing in the record indicating that the Court decided his prior convictions were ACCA predicate felonies based on the residual clause rather than the enumerated clause.

         The government also asserts that movant's claims are not cognizable in a successive § 2255 habeas action, as his motion fails to meet 28 U.S.C. § 2255(h)(2)'s requirement that a successive motion be based on a new rule of constitutional law. The government argues that movant relies on the “statutory interpretation principles espoused in Mathis, . . . not the constitutional holding in Johnson.” Response at 6-7.

         Movant replies that his motion meets the requirements of § 2255(h)(2) as it is based on Johnson's new rule of constitutional law that is retroactive to cases on collateral review, Welch v. United States, 135 S.Ct. 2551 (2015), and which was previously unavailable to him. Movant states that because the definition of inhabitable structure used in Missouri's burglary statute is broader than generic burglary as defined in Taylor v. United States, 495 U.S. 575 (1990), his burglary conviction does not qualify as an ACCA enumerated predicate offense, but at the time of sentencing it qualified under the ACCA's residual clause based on Eighth Circuit precedent such as Bell v. United States, 445 F.3d 1086, 1090 (8th Cir. 2006). Movant notes that at sentencing, the Court did not specify why the second-degree burglary convictions qualified as ACCA violent felonies.

         A. The Armed ...


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