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 Ortez Jones' 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. For the reasons below, the Court will grant
January 16, 2008, movant was indicted on one count of being a
previously-convicted felon in possession of a firearm and an
Armed Career Criminal, in violation of 18 U.S.C. §§
922(g)(1) and 924(e). See United States v. Jones,
No. 4:08-CR-26 CAS (E.D. Mo.) On January 28, 2008, the
Federal Public Defender was appointed to represent movant.
Ultimately, movant opted to plead guilty.
Court ordered the preparation of a presentence investigation
report (“PSR”) by the U.S. Probation Office. The
PSR concluded that movant was an Armed Career Criminal, due
to his prior convictions for two counts of robbery second
degree, stealing a motor vehicle, and two counts of domestic
assault second degree. PSR at ¶ 22 (Doc. 34 in Case No.
4:08-CR-26 CAS). The Court reluctantly concluded that movant
was an Armed Career Criminal based on the robbery and
domestic assault and sentenced him to 180 months in prison,
the statutory mandatory minimum sentence. Movant's
sentence was affirmed on direct appeal. See United States
v. Jones, 574 F.3d 546 (8th Cir. 2009). On October 25,
2010, movant filed a motion to vacate, set aside, or correct
sentence pursuant to 28 U.S.C. § 2255, which the Court
denied in all respects on February 9, 2011. Jones v.
United States, 4:10-CV-2037 CAS (E.D. Mo.).
October 20, 2016, movant was granted authorization by the
Eighth Circuit Court of Appeals to file a second motion to
vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. Jones v. United States, No.
16-2357 (8th Cir. Oct. 20, 2016). In the instant motion,
movant alleges that under Johnson, the four
predicate violent felony convictions no longer qualify him as
an armed career offender.
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, 191
F.Supp.3d 989, 992-93 (W.D. Mo. 2016) (denying
government's motion for reconsideration on the issue of
the burden of proof).
instant motion, movant asserts that his two 2001 Missouri
convictions for second-degree robbery - incurred at the age
of sixteen - and two 2005 Missouri convictions for domestic
assault second degree no longer qualify as predicate offenses
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 for several reasons: (1)
the Supreme Court's Johnson decision does not
apply to movant's claims because movant's status as
an armed career offender does not rest on the ACCA's
residual clause, in that movant's robbery convictions
were classified as violent felonies under the elements/use of
force clause of the ACCA, not the residual clause; (2)
movant's claims are not cognizable in a successive habeas
action because they are not based on a new rule of
constitutional law as required by 28 U.S.C. §
2255(h)(2), and instead are based on a statutory
interpretation case, Johnson v. United States, 130
S.Ct. 1265, 1269 (2010) (“Johnson I”);
and (3) even if the Court were to reach the merits of
movant's claim, the Eighth Circuit's decision in
United States v. Bell, 840 F.3d 963 (8th Cir. 2016),
which held that a defendant's Missouri conviction for
second-degree robbery was not a crime of violence under the
Sentencing Guidelines, was wrongly decided.
claim for relief relies upon the Supreme Court's decision
in Johnson that the residual clause of the ACCA is
unconstitutional. Ordinarily, the crime of being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g) is subject to a maximum punishment of fifteen years.
18 U.S.C. § 924(a). The ACCA enhances the sentence and
requires a fifteen-year minimum sentence if a person who
violates § 922(g) has three previous convictions for a
“violent felony.” The statute defines violent
felony as any felony that: “(i) has as an element the
use, attempted use, or threatened use of physical force
against the person of another; or (ii) is burglary, arson, or
extortion, involves 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 language,
commonly known as the “residual clause, ” is the
portion of the statute invalidated by Johnson,
see 135 S.Ct. at 2556-57. The remaining clauses,
§ 924(e)(2)(B)(i) (the “elements clause”),
and the first clause of § 924(e)(2)(B)(ii) (the
“enumerated offenses clause”), are still
effective. Id. at 2563. Recently, the Supreme Court
held that Johnson announced a new substantive rule
that applies retroactively to cases on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1268 (2016).
Movant's Robbery Convictions Were Not “Elements/Use
of Force” Convictions
government contends, without citation to any support, that
movant's second-degree robbery convictions were
“elements/use of force” convictions and not
residual clause violent felonies. The Court has reviewed the
indictment, the presentence report, and the sentencing
transcript in the underlying criminal case. There is no
mention in any of these documents as to the specific basis
for movant's sentence under the ACCA. This is not
surprising, as “[n]othing in the law requires a judge
to specify which clause of § 924(c) . . . it relied upon
in imposing a sentence.” In re Chance, 831
F.3d 1335, 1340 (11th Cir. 2016). At the time of movant's
sentencing there was no need to distinguish between the
different clauses of the ACCA, and no need to invoke any
specific clause when the Court found that movant qualified as
an armed career criminal. Givens v. United States,
2016 WL 7242162, at *4 (E.D. Mo. Dec. ...