United States District Court, W.D. Missouri, Southern Division
ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT
the Court is Movant Michael Mitchell's
(“Movant”)'s motion to vacate and correct his
sentence as an armed career criminal 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 (“ACCA”)'s 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 serious drug offenses or violent
felonies under the enumerated offenses clause, not under the
residual clause. The Government also argues that Movant's
motion is not timely because Movant seeks relief based on
statutory interpretation principles set forth in Mathis
v. United States, 136 S.Ct. 2243 (2016), and does not
rely on the new rule of law announced in Johnson.
For the reasons stated below, Movant's motion is GRANTED,
Movant's sentence is VACATED, and a resentencing hearing
February 24, 2009, a grand jury returned a one-count
indictment, charging Movant with being a felon unlawfully in
possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1), 924(a)(2), and 924(e)(1). (Crim. doc.
On May 13, 2009, Movant pleaded guilty to Count One (crim.
doc. 16) pursuant to a plea agreement, wherein Movant agreed
“that he [was] an armed career criminal under 18 U.S.C.
§ 924(e)” (crim. doc. 15 at 1).
presentence investigation report (“PSR”) was
prepared on August 10, 2009. (Crim. doc. 18.) The PSR stated
that Movant met the armed career criminal provisions of
United States Sentencing Guidelines (“U.S.S.G.”)
§ 4B1.4, and then listed six of Movant's Missouri
convictions. The six convictions listed were as follows: (1)
a 1991 conviction for second-degree burglary; (2) a 1996
conviction for sexual assault; (3) a 2000 conviction for
possession of ephedrine with intent to manufacture
methamphetamine; (4) a 2001 conviction for first-degree
burglary; (5) a 2001 conviction for manufacturing
methamphetamine; and (6) a 2001 conviction for second-degree
burglary. (Crim. doc. 18 at 6.)
the sentencing Court and Movant agreed that at least three of
those convictions were “violent felonies” or
“serious drug offenses, ” (see crim.
doc. 15 at 3), Movant was classified as an armed career
criminal under Section 924(e)(1) of the ACCA and subject to
an enhanced statutory-mandated sentence of no less than
fifteen years' imprisonment. On September 9, 2009, Movant
was sentenced to a fifteen-year term of imprisonment, and a
five-year period of supervised release. (Crim. doc. 21 at 2.)
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 on July 29, 2011, arguing
that 18 U.S.C. § 922(g)(1) violated the Second Amendment
and due process of law. The Court denied the motion on
October 4, 2011, in Mitchell v. United States, No.
11-03280-01-CV-S-RED-P. 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 on May 17, 2016.
Mitchell v. United States, No. 15-2395. 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).
Timeliness of Movant's Motion
is a one-year statute of limitation period for a defendant to
file a § 2255 habeas action. 28 U.S.C. § 2255(f).
This one-year period runs from the latest of the following
four possible events:
(1) the date on which the judgment of conviction becomes
(2) the date on which an applicable impediment made by the
government is removed;
(3) the date on which a new rule of law was handed down if
deemed retroactively applicable to cases on collateral
(4) the date newly discovered applicable facts were
conviction became final on September 23, 2009. Movant's
initial unsuccessful motion under § 2255 was dismissed
with prejudice on October 4, 2011. Johnson was
decided on June 26, 2015. Movant filed this ...