Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Redd v. United States

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

February 16, 2017

KENNETH REDD, 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 Kenneth Redd's 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 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 July 15, 2005, movant was charged by criminal complaint and on August 11, 2005 was indicted and charged with: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); (2) tampering with evidence in violation of 18 U.S.C. § 1512(b)(2)(B); and (3) obstructing justice by tampering with a witness, victim or informant violation of 18 U.S.C. § 1512(c)(2). See United States v. Redd, No. 4:05-CR-458 CAS (E.D. Mo.) (Doc. 13).

         Movant proceeded to trial and was found guilty by a jury of all three counts on December 7, 2005. (Docs. 57, 62, No. 4:05-CR-458.) A presentence investigation report (“PSR”) was prepared after the guilty verdict. (Doc. 68, No. 4:05-CR-458.) The PSR stated that movant met the Armed Career Criminal provisions of United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.4(a) because he had at least six 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 July 25, 1983, (2) first-degree robbery and Armed Criminal Action committed August 20, 1983, [2] (3) second-degree burglary committed September 1, 1983, (4) first-degree burglary, first-degree robbery, and Armed Criminal Action committed September 11, 1983, (5) second-degree burglary committed September 16, 1983, and (6) second-degree burglary committed September 21, 1983.

         On February 23, 2006, the Court sentenced movant to 240 months on Count I, 120 months on Count II, and 240 months on Count III, all to be served concurrently, and a three-year period of supervised release. Movant appealed his sentence, but the Eighth Circuit Court of Appeals affirmed. United States v. Redd, No. 06-1637 (Mar. 15, 2007).

         Movant filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on September 22, 2008. The Court denied the motion as without merit and denied a certificate of appealability. Redd v. United States, No. 4:08-CV-1459 CAS (E.D. Mo.) (Order of Mar. 10, 2010). The Eighth Circuit declined to issue a certificate of appealability. Redd v. United States, No. 10-2398 (Oct. 4, 2010).

         After the Supreme Court decided Johnson, movant filed a petition for authorization to file a successive motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255, which the Eighth Circuit Court of Appeals granted. Redd v. United States, No. 16-1969 (8th Cir. Oct. 24, 2016). The instant case was then filed.

         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, 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).

         III. Discussion

         In the instant motion, movant asserts that none of his Missouri second-degree convictions for burglary of an inhabitable structure qualify as predicate offenses now that Johnson has declared the ACCA's residual clause unconstitutional. It is undisputed that movant has two convictions for Missouri first-degree robbery, which are ACCA crimes of violence. The issue is whether any of movant's second-degree burglary convictions supply the necessary third crime of violence. The government opposes the motion, responding 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 convictions were classified as violent felonies under the enumerated clause of the ACCA, not the residual 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's “attack on his burglary convictions relates to a means/elements analysis of the Missouri burglary statute and is therefore not rooted in” Johnson, but instead is “rooted in Mathis, . . . a statutory interpretation case, not a case announcing a new rule of constitutional law.” Gov't Response at 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), see United States v. Bess, 655 F. App'x 518, 519 (8th Cir. 2016) (unpublished per curiam), 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 United States v. Hascall, 76 F.3d 902, 906 (8th Cir. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.