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Mitchell v. United States

United States District Court, W.D. Missouri, Southern Division

April 11, 2017

UNITED STATES OF AMERICA, Respondent. Crim. No. 09-03012-03-CR-1-S-RK



         Before 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 is ORDERED.


         On 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. 1.)[2] 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).

         A 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.)

         Because 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.)

         Movant 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.

         Standard of Review

         A 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).


         1. Timeliness of Movant's Motion

         There 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 final;
(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 review; or
(4) the date newly discovered applicable facts were discovered.


         Movant's 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 ...

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