United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER NUNC PRO TUNC 
CHARLES A. SHAW, UNITED STATES DISTRICT JUDGE.
matter is before the Court on movant Vince Byers' 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. Movant asserts that his prior Missouri
convictions for offering violence to an inmate and for
second-degree assault are no longer violent felonies, and
that he is not properly subject to an enhanced sentence under
the ACCA. 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 involved the use of force. For the reasons stated
below, the Court will grant movant's motion in part and
vacate his conviction.
27, 2008, a United States Magistrate Judge issued a criminal
complaint against movant, charging him with being a felon in
possession of a firearm in violation of 18 U.S.C. §
922(g)(1). A single-count indictment charging movant with the
same crime was filed on July 10, 2008. See United States
v. Byers, 4:08-CR-416 CAS (E.D. Mo.) (Docs. 1, 7).
elected to proceed to trial, and after a three-day jury trial
was found guilty of the crime charged on January 28, 2009. A
presentence investigation report (“PSR”) was
prepared, which stated that movant met the Armed Career
Criminal provisions of United States Sentencing Guidelines
(“U.S.S.G.”) § 4B1.4 and was subject to an
enhanced sentence under 18 U.S.C. § 924(e) based on
three prior convictions for crimes of violence: Missouri
felony offenses of (1) Attempted Burglary First Degree; (2)
Assault First Degree, and (3) Assault Second
Degree. On April 16, 2009, the Court sentenced
movant to the mandatory minimum term of 180 months and a
two-year period of supervised release.
filed a direct appeal, but his conviction and sentence were
upheld by the Eighth Circuit Court of Appeals. United
States v. Byers, 603 F.3d 503 (8th Cir. 2010). Movant
filed a petition for writ of certiorari with the United
States Supreme Court which was denied on November 4, 2010.
Byers v. United States, No. 10-5740 (2010).
filed a motion to vacate, set aside, or correct his sentence
pursuant to 28 U.S.C. § 2255 on October 11, 2011.
Byers v. United States, No. 4:11-CV-1765 CAS (E.D.
Mo.). The Court denied the motion on January 24, 2014, and
the Eighth Circuit denied movant's application for a
certificate of appealability on May 29, 2014.
the Supreme Court decided Johnson, movant filed a
petition with the Eighth Circuit for authorization to file a
successive application under § 2255, which was granted
on June 6, 2016. Byers v. United States, No. 16-2308
(8th Cir. June 6, 2016). Movant then filed the instant
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).
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
Movant Meets the Requirements of 28 U.S.C. §§ 2244
2244(b)(4) of Title 28 states that a “district court
shall dismiss any claim presented in a second or successive
application that the court of appeal has authorized to be
filed unless the applicant shows that the claim satisfies the
requirements of this section.” Separately, Section
2255(h)(2) requires that a second or successive habeas motion
must contain “a new rule of constitutional law, made
retroactive to cases on collateral review by the Supreme
Court, that was previously unavailable.” The Government
does not dispute that movant meets the requirements of these
Movant's Claimed Basis for Relief and the
Byers asserts that his 1983 conviction for Offering Violence
to an Inmate under § 217.385, Mo. Rev. Stat. (1982), and
his 2006 conviction for Assault Second Degree under §
565.060.1, Mo. Rev. Stat. (2000), no longer qualify as
violent felonies and predicate offenses now that
Johnson has declared the ACCA's residual clause
unconstitutional. The Government responds 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 both
of movant's convictions are violent felonies under the
“elements/use of force” clause of the ACCA.
Movant's Conviction for Offering Violence to an Inmate is
Not a Crime of Violence
contends that his 1983 conviction for Offering Violence to an
Inmate is no longer a predicate conviction under the ACCA. At
the time Byers was convicted, the statute's language
provided: “No offender shall commit or offer to commit
violence to an employee of the department or to another
offender housed in a department correctional facility, or
attempt to do injury to any building or other property.
Violation of this section shall be a class C felony.”
§ 217.835, Mo. Rev. Stat. (1982).
asserts that Missouri courts found the statutory phrase
“offers to commit violence” applied to both
completed and attempted assaults, citing State v.
Bailey, 783 S.W.2d 490, 491 (Mo.Ct.App. 1990), and held
that the statute required no culpable mental state and was a
strict liability offense, citing State v. East, 817
S.W.2d 521, 522 (Mo.Ct.App. 1991), and State v. Lee,
708 S.W.2d 229, 232 (Mo.Ct.App. 1986). Byers argues that to
qualify as a predicate under the ACCA's force clause, 18
U.S.C. § 924(e)(2)(B)(i), an offense must require the
intentional use or threat of violent force, based on
the Supreme Court's holding in Leocal v.
Ashcroft, 543 U.S. 1 (2004), that convictions for
accidental or negligent conduct, or for conduct lacking any
mens rea, do not qualify as crimes of violence under
the “use of force” clause of 18 U.S.C. §
notes that Section 16(a) is “nearly identical” to
the ACCA's force clause, § 924(e)(2)(B)(i), as both
require that an offense have “as an element the use,
attempted use, or threatened use of physical force.”
Byers asserts that like § 16(a), the ACCA's force
clause does not apply to accidental or negligent offenses, or
to offenses entirely lacking in mens rea, citing
United States v. McMurray, 653 F.3d 367, 374-75 (6th
Cir. 2011) (stating the Supreme Court “has applied the
reasoning in Leocal to the context of interpreting
the ACCA's ‘use of force' clause, ” and
determining that the phrase “use of physical
force” in § 924(e)(2)(B)(i) “requires more
than reckless conduct.”); United States v.
Moore, 203 F.Supp.3d 854, 861 (N.D. Ohio 2016) (stating
that “for the force prong of the ACCA to be
constitutional, any qualifying criminal statute . . . must
require mens rea” and finding that the strict liability
crime of aggravated robbery lacks the mens rea
necessary to qualify as a predicate offense under ACCA.).
Government does not address Byers' arguments that §
217.385 lacked a mens rea element, or that
Leocal applies to the ACCA's force clause.
Instead, the Government responds that under Missouri law, the
term “violence” in § 271.385 has been
defined to mean “exertion of any physical force so as
to injure or abuse, ” citing State v. Mack, 12
S.W.3d 349, 351-52 (Mo.Ct.App. 2000), and State v.
Lee, 708 S.W.2d at 231; and that the ACCA's
“elements/use of force” clause provides a violent
felony is any crime that “has as an element the use,
attempted use, or threatened use of physical force against
the person of another.” 18 U.S.C. §
924(e)(2)(B)(i). The Government asserts that § 271.385
“clearly . . . has as an element the use, attempted
use, or threatened use of physical force against the person
of another” and concludes that, as such, it is a
violent felony under the elements clause. This argument is
insufficient to resolve the question presented by Byers'
Leocal, the Supreme Court addressed 18 U.S.C. §
16(a)'s language stating that a crime of violence
involves the “use . . . of physical force
against” another's person or property. The Court
found the word “use” requires active employment,
and “most naturally suggests a higher degree of intent
than negligent or merely accidental conduct.” 543 U.S.
at 9. The Court concluded that state DUI offenses with no
mens rea component or that require only a showing of
negligence in the operation of a vehicle are not crimes of
violence under Section 16(a). Id.; see also
United States v. Torres-Villalobos, 487 F.3d 607, 614-17
(8th Cir. 2007) (concluding under Leocal that a
state law manslaughter offense with no mens rea
element did not meet the use-of-force requirement of 18
U.S.C. § 16(b)). Thus, the use of force
requires its active employment rather than negligent or
accidental conduct. Leocal, 543 U.S. at 9-10,
Villalobos, 487 F.3d at 616; see also United
States v. Castleman, 134 S.Ct. 1405, 1415 (2014)
(“[T]he knowing or intentional application of force is
a ‘use' of force.”).
Byers asserts, the crime of violence definition at issue in
Leocal and Torres-Villalobos is identical
to the language in the force clause at issue here.
Compare 18 U.S.C. § 924(e)(2)(B)(i) and 18
U.S.C. § 16(a). The Eighth Circuit has not had the
opportunity to determine whether it will apply
Leocal to the ACCA as some other courts have done.
See, e.g., McMurray, 653 F.3d at
374-75; United States v. Dixon, 805 F.3d 1193, 1197
(9th Cir. 2015). As the Sixth Circuit stated in
McMurray, the Supreme Court quoted Leocal
and applied its reasoning in the context of interpreting the
ACCA's use of force clause in Johnson, 599 U.S.
at 1271, where it “focused on the question of the
degree of physical force required to qualify as a
‘violent felony'-the ‘violent' aspect of
the Leocal Court's ‘violent, active
crimes' characterization[.]” 653 F.3d at ...