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 Donald Slaughter's
amended 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.
October 7, 2009, movant was indicted and charged with being a
felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g)(1). See United States v. Slaughter,
No. 4:09-CR-643 CAS (E.D. Mo.) (Doc. 1).
pleaded guilty on December 29, 2009. (Docs. 16, 17, No.
4:09-CR-643.) A presentence investigation report
(“PSR”) was prepared after the guilty verdict.
(Doc. 38, No. 4:09-CR-643.) The PSR stated that movant met
the Armed Career Criminal provisions of 18 U.S.C. §
924(e) because he “has prior crime of violence felony
convictions including Burglary First Degree under Docket No.
22991-04108 and Burglary Second Degree under Docket Nos.
2100R-00224, 2100R-00219, 2101R-002059, and
2012R-00750[.]” (Id. at 5.)
27, 2010, the Court sentenced movant to 180 months, and a
three-year period of supervised release. Movant appealed,
arguing that the Court erred in refusing to permit him to
withdraw his guilty plea, but the Eighth Circuit Court of
Appeals affirmed. United States v. Slaughter, 407 F.
App'x 83 (8th Cir. 2011).
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 on August 8, 2014. The
Court dismissed the motion as time barred and denied a
certificate of appealability. Slaughter v. United
States, No. 4:14-CV-1389 CAS (E.D. Mo.) (Mem. and Order
of Sept. 23, 2014). Movant did not appeal the dismissal.
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.
Slaughter v. United States, No. 15-3678 (8th Cir.
June 7, 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).
amended motion, movant asserts that none of his Missouri
second-degree burglary convictions qualify as predicate
offenses now that Johnson has declared the
ACCA's residual clause unconstitutional. In his reply
memorandum, movant refines his argument to be that his
Missouri burglary convictions for burglary of an inhabitable
structure no longer qualify as crimes of violence.
See Reply at 2, 5, 8-9. 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
“attacks his second degree burglary convictions based
on Missouri's definition of ‘inhabitable
structure'” which “demonstrates reliance on
the statutory interpretation principles espoused in
Mathis v. United States, 136 S.Ct. 2243 (2016), not
the constitutional holding in Johnson.”
Gov't Response at 6.
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. 1996), and
United States v. Bell, 445 F.3d 1086, 1090 (8th Cir.
2006). Movant correctly observes that at sentencing, the
Court did not specify the basis on which it found the
burglary convictions to be ACCA violent felonies.
The Armed Career Criminal Act
claim for relief relies on the interaction of recent Supreme
Court cases interpreting the ACCA. Ordinarily, the crime of
being a felon in possession of firearms and ammunition 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. Subsequently, the Supreme
Court held that Johnson announced a new substantive
rule that applies retroactively to cases on collateral
review. Welch, 136 S.Ct. at 1268.
Movant Meets the Requirements of 28 U.S.C. §§ ...