United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
CHARLES A. SHAW UNITED STATES DISTRICT JUDGE
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
(“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.
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.
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.
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).
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
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).
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. 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
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.
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.
The Armed ...