United States District Court, E.D. Missouri, Southern Division
PRESTON E. MAXWELL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
RICHARD WEBBER SENIOR UNITED STATES DISTRICT JUDGE
matter is before the Court on Petitioner Preston
Maxwell's “Successive Petition to Vacate Sentence
under 28 U.S.C. § 2255 Based on Johnson v.
U.S.” [ECF No. 1].
August 15, 2002, Petitioner Preston Maxwell
(“Petitioner) was indicted for the federal offense of
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). On March 11, 2003, a jury found
determine Petitioner's sentence, the Court used the 2002
Guidelines Manual and calculated Petitioner's base
offense level under § 2K2.1(a)(4)(A) at 24. Because he
was determined to be an Armed Career Criminal, due to his
prior felony convictions for aggravated battery in Illinois
in 1993, burglary in Illinois in 1998, and aggravated battery
in Illinois in 1996, his base offense level increased to 33.
His total offense level was 33, and his criminal history
category was VI. The guideline range was 235 to 293 months.
The statutory minimum of imprisonment was fifteen years, and
the maximum term was life.
19, 2003, the Court sentenced Petitioner to 235 months
imprisonment, and a five-year term of supervised release.
After the United States Supreme Court decided Johnson v.
United States, 135 S.Ct. 2251 (2015), Petitioner filed
the present motion to correct his sentence asserting he is no
longer an armed career criminal in light of the Supreme
Court's decision in Johnson.
asserts his conviction for burglary in Illinois in 1998 no
longer qualifies as a violent felony for purposes of the
Armed Career Criminal Act (“ACCA”), because it no
longer qualifies as a crime of violence under the
“enumerated clause” of the ACCA. The United
States argues Petitioner does not qualify for
Johnson relief, because he was not sentenced under
the residual clause of the ACCA, he cannot apply
Descamps and Mathis to his claim because
they are not retroactive, and even if he was eligible, his
burglary conviction qualifies as a violent felony.
Johnson, the Supreme Court determined the residual
clause in the definition of “violent felony” in
the ACCA was unconstitutionally vague. 135 S.Ct. 2551.
Subsequently, in United States v. Welch, the Supreme
Court ruled Johnson was a substantive new rule,
retroactive on collateral review. 136 S.Ct. 1257 (2016).
Therefore, defendants who were determined to be armed career
criminals under the residual clause of the ACCA may seek
collateral review of their sentences within one year of the
Supreme Court's Johnson decision. The United
States asserts Petitioner does not qualify for collateral
review under Johnson because he cannot prove he was
sentenced under the residual clause.
Court cannot determine whether Petitioner was sentenced under
the residual clause of the ACCA. The presentence report filed
at the time of his sentencing does not indicate under which
clause he received the ACCA enhancement, and the Statement of
Reasons adopts the presentence report without change. In past
cases, the Court held, in situations where the Court could
not determine under what clause the prior offenses were
determined to be predicate offenses, the better approach was
to find relief was available, because the Court may have
relied on the unconstitutional residual clause. See Bevly
v. United States, No. 4:16CV00965 ERW, 2016 WL 6893815
(E.D. Mo. Nov. 23, 2016) (J. Webber); Givens v. United
States, No. 4:16-CV-1143 CAS, 2016 WL 7242162 (E.D. Mo.
Dec. 15, 2016) (J. Shaw); Johnson v. United States,
No. 4:16-CV-00649-NKL, 2016 WL 6542860 at *2 (W.D. Mo. Nov.
3, 2016). The United States cites two appellate decisions
which state a district court must deny a petition, and may
not reach the merits of the petition, where the petitioner
cannot prove he was sentenced under the residual clause of
the ACCA. See In re Moore, 830 F.3d 1268 (11th Cir.
2016); Stanley v. United States, 827 F.3d 562 (7th
Cir. 2016). However, the Court does not find the reasoning of
the Eleventh and Seventh Circuits, in the respective
opinions, to be persuasive.
Eleventh Circuit's decision in Moore, was
published on July 27, 2016. On August 2, 2016, a different
panel on the Eleventh Circuit decided In re Chance,
directly contradicting the decision in Moore. 831
F.3d 1335, 1339 (11th 2016). In Chance, the panel
stated the language in Moore, concerning a district
court's denial of a petition, if the petitioner is unable
to prove he was sentenced under the residual clause, is dicta
and need not be followed. Id. Further, the panel
determined a petitioner does not have to prove he was
sentenced under the residual clause for his petition to be
decided on the merits. Id. The panel stated, if the
district court denied a petitioner's petition on this
basis, the district court would be required to ignore Supreme
Court precedent determined after Johnson.
Id. Further, the panel found there was, and is,
nothing in the law which requires a district judge to state
the clause on which it relied on at sentencing, so judges
have not made it clear under which clause the defendant was
being sentenced. Id. Therefore, two similarly
situated defendants, one who was told at sentencing he was
being sentenced under the residual clause, and one who was
not, would not be treated the same and would receive
different final sentences. Id. The panel concluded
by stating a petitioner need only show the ACCA may no longer
authorize his sentence. Id.
Court finds the second panel decision by the Eleventh Circuit
to be persuasive. Further, this complies with the Court's
prior rulings in similar cases. Because there is no way to
determine whether Petitioner was sentenced under the residual
clause of the ACCA, but realizing he may have been sentenced
under the residual clause, the Court will analyze the merits
of his Petition.
Requirements of 28 U.S.C. §§ ...