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 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
(“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.
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).
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,  (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.
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).
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).
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.
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 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.
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.
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. ...