United States District Court, E.D. Missouri, Southeastern Division
OPINION, MEMORANDUM AND ORDER
EDWARD AUTREY UNITED STATES DISTRICT JUDGE.
matter is before the Court on Petitioner's motion to
Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to
28 U.S.C. § 2255, wherein he asserts Johnson v.
United States, 135 S.Ct. 2551 (2015) is applicable. The
United States of America has filed a Response to
Petitioner's Habeas Petition [Doc. #8]. Petitioner has
filed a Traverse to Government's Response to Petitioners
28 U.S, C. §2255 [Doc. #9].For the reasons set forth
below the Motion will be denied.
7, 2003, Petitioner entered a plea of guilty to the offense
of Felon in Possession of a Firearm in violation of 18,
U.S.C. § 922(g)(1). A Presentence Investigation Report
was prepared. That report recommended that Petitioner be
sentenced as an Armed Career Criminal (“ACC”)
under the Armed Career Criminal Act (“ACCA”) (18
U.S.C. § 924(e)) and concluded that the Total Offense
Level was 30. His Criminal History Category was determined to
be VI and the resulting sentencing range was 180 to 210
months. He was determined to be an ACC based on the existence
of convictions for Second Degree Burglary, a felony, on
October 5, 1998, in the Circuit Court of Ripley County,
Missouri, in Case Number CR598-612FX; Second Degree Burglary,
a felony, on December 20, 1999, in the Circuit Court of
Ripley County, Missouri, in Case Number CR599-662FX; and
Second Degree Burglary, a felony, on August 19, 2002, in the
Circuit Court of Ripley County, Missouri, in Case Number
CR502-338FX . Offense Level of 31.
court conducted a sentencing hearing on August 5, 2003 and
found Petitioner to be an Armed Career Criminal and sentenced
him to a term of imprisonment of 180 months. There were no
appeals of his conviction or sentence and no previously filed
petitions under § 2255.
claims that he is entitled to relief under the Supreme
Court's decision in Johnson v. United States,
135 S.Ct. 2551 (2015). He argues that the Missouri burglary
statute is overbroad and may not be used to classify a
conviction under that statute as a violent felony. Petitioner
has three convictions for Missouri Second Degree Burglary of
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Supreme Court held that the residual clause in the definition
of a “violent felony” in the Armed Career
Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)
(“ACCA”), is unconstitutionally vague. The
Supreme Court has since determined that Johnson
announced a new substantive rule of constitutional law that
applies retroactively on collateral review in cases involving
ACCA-enhanced sentences. United States v. Welch, 136
S.Ct. 1257 (2016). However, the Court's holding in
Welch that Johnson applies retroactively in
ACCA cases on collateral review does not govern the separate
question of whether Johnson applies retroactively to
claims based on the Sentencing Guidelines.
18, United States Code, Section § 922(g)(1) provides
that a person who has been previously convicted of a felony
is prohibited from possessing a firearm or ammunition that
has affected interstate commerce. Any person who unlawfully
possesses a firearm in violation of this section is subject
to a term of imprisonment of up to ten years. 18 U.S.C.
§ 924(d). However, the ACCA provides that any defendant
convicted in federal court of being a felon in possession of
firearms and/or ammunition and who has three prior
felony convictions for violent felonies and/or serious drug
offenses must receive an enhanced punishment of a maximum of
life and a minimum term of imprisonment of fifteen years. 18
U.S.C. § 924(e).
A “violent felony” is defined as:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, . .
., 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 ...