Burgess v. United States

ROOSEVELT J. LOUICE BURGESS, Movant, v. UNITED STATES OF AMERICA, Respondent.

CV416-147

CR493-205

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION

April 27, 2017

REPORT AND RECOMMENDATION

Movant Roosevelt Burgess, represented by counsel, moves under 28 U.S.C. § 2255 to vacate the Armed Career Criminal Act (ACCA) enhancement applied to his 1994 sentence for possession of a firearm by a convicted felon. Doc. 122;¹ see docs. 1 (indictment), 22 (superseding indictment), 47 (jury verdict), 59 (judgment for 387 months' imprisonment); United States v. Burgess, 79 F.3d 1159 (11th Cir. 1996) (affirming conviction). He seeks to exploit the new rule announced in Johnson v. United States, 576 U.S. ___, 135 S. Ct. 2551 (2015), and made retroactive by Welch v. United States, 578 U.S. ___, 136 S. Ct. 1257 (2016), to neutralize his 32-year enhanced sentence as a career felon.Doc. 122. The Government has filed a motion to dismiss Burgess' habeas motion, which is DENIED for the reasons that follow. Doc. 133.

I. BACKGROUND

On June 8, 1994, a jury convicted Burgess of bank robbery in violation of 18 U.S.C. § 2113(a)(d), possession and unlawful use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c)(1), and possession of a firearm as a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) & 924(e)(1). See docs. 47 (jury verdict) & 59 (judgment, entered October 19, 1994). His Presentence Investigation Report (PSR) deemed him an armed career criminal, based on three prior convictions for violent felonies. PSR at ¶¶ 18 & 32-34; see also doc. 37 (sentencing enhancement information). Judgment became final when the Eleventh Circuit affirmed the Court's sentence on March 25, 1996. Docs. 70 & 71.

Burgess filed the present § 2255 motion nearly twenty years later, arguing that he no longer qualifies as an armed career criminal. Doc. 122 (filed June 13, 2016); see In re Burgess, No. 16-13208-J (11th Cir. July 1, 2016) (granting him permission to file a successive § 2255 motion). He insists that his enhanced sentence has been undone by the Johnson decision and asks for immediate relief from the remainingyears of his three decade long incarceration. Doc. 122.

II. ANALYSIS

The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g), and (2) have "three prior convictions . . . for a violent felony or a serious drug offense, or both." 18 U.S.C. § 924(e)(1). Plain vanilla, felon-in-possession convictions fetch a maximum 10 year sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement mandates a 15 year minimum (and a maximum of life). 18 U.S.C. § 924(e)(1).

To qualify as an ACCA "violent felony," the crime must be an offense that (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) "is burglary, arson, or extortion, [or] involves the use of explosives"; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B)(i)-(ii). These three definitions are known, respectively, as the (1) elements clause, (2) enumerated crimes clause, and (3) residual clause. Johnson held that that "residual clause" violated due process. See 135 S. Ct. 2551,2557. Offenses that fall under the other two clauses survive. Id. at 2563; United States v. Tinker, 618 F. App'x 635, 637 (11th Cir. 2015).

Burgess' enhancement was based on three "violent felonies": one conviction for "felonious assault" in Michigan and two convictions for assault with a deadly weapon inflicting serious injury in North Carolina. PSR² at 31, 33 & 34; doc. 37. Burgess disputes that these offenses still qualify as ACCA predicates post-Johnson and asks the Court to vacate his enhanced sentence. Docs. 122 & 137. The Government opposes. Doc. 133.

A. Michigan Felonious Assault

As recently set forth by the Sixth Circuit:

In Michigan, any "person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of felonious assault, also called assault with a dangerous weapon. Mich. Comp. Laws § 750.82. That language, reframed as elements,³requires "(1) an assault, (2) with a dangerous weapon, and (3) with the intent to injure or place the victim in reasonable apprehension of an immediate battery." People v. Jackson, N.W.2d 340, 343 n. 2 (Mich. 2010) (emphasis and quotation omitted). The assault must consist of attempted battery or "an act that would cause a reasonable person to fear or apprehend an immediate battery," and that the defendant must have intended to injure or cause fear of immediate battery. People v. Micsak, 2013 WL 275906 at *2 (Mich. Ct. App. Jan. 24, 2013). A battery, in this context, is "a forceful or violent touching," id.; see People v. Datema, 533 N.W.2d 272, 275 n. 8 (Mich. 1995), which Michigan defines as "any use of physical force against another person so as to harm or embarrass" that person, People v. Chandler, 506 N.W.2d 882, 884(Mich. App. 1993). And a dangerous weapon is "any object that is used in a way that is likely to cause serious physical injury or death." People v. Davis, 2002 WL 31117043 at *2 (Mich. Ct. App. Sept. 24, 2002); see People v. Goolsby, 279 N.W. 867, 869 (Mich. 1938).

Taken together, these elements entail "the use, attempted use, or threatened use of physical force" . . . . And our cases since Johnson show why that conclusion remains sound. When a felony must be committed with a deadly weapon and involves some degree or threat of physical force, it is a crime of violence under the elements clause. [United States v. Rede-Mendez, 680 F.3d 552, 558 (6th Cir. 2012)]; see United States v. Rafidi, 829 F.3d 437, 446 (6th Cir. 2016). Michigan felonious assault meets that threshold because there is no way to commit it without intentionally attempting or threatening physical force against another with a dangerous weapon.

Harris, ___ F.3d ___, 2017 WL 1228556 at 1-2 (holding "felonious assault" to be a "violent felony" under the Sentencing Guidelines, and reaffirming United States v. Mosley, 339 F. Appx. 568, 575 (6th Cir. 2009),⁴ which held pre-Johnson that Michigan felonious assault was a "violent felony" under the ACCA). Burgess' 1978 conviction for felonious assault⁵ (see doc. 133-2 at 3-5 (information, order of conviction, and sentence for felonious assault in violation of M.C.L.A.§ 750.82)) remains a qualifying "violent felony" for ACCA sentence-enhancing purposes. That's one violent felony.⁶

B. North Carolina Assault with a Deadly Weapon Inflicting Serious Injury

Burgess' North Carolina convictions are more problematic. Under North Carolina law, assault with a deadly weapon can occur in any oneof several ways: (a) assault with a deadly weapon with intent to kill (AWDWIK); (b) assault with a deadly weapon inflicting serious injury (AWDWISI); and (c) assault with a deadly weapon with intent to kill and inflict serious injury (AWDWIKISI). N.C.G.S.A. § 14-32;⁷ see Jackson v. United States, 2017 WL 455395 at *3 (E.D.N.C. Feb. 2, 2017). Movant has two convictions⁸ for AWDWISI, neither of whichsurvive Johnson as qualifying ACCA-enhancement predicates.⁹

1. "Violent Felonies"

Post-Johnson, ACCA violent felonies must either (1) have "as an element the use, attempted use, or threatened use of physical force against the person of another" (elements clause), or (2) be "burglary, arson, or extortion, [or] involve [ ] the use of explosives" (enumerated (property) crimes clause). 18 U.S.C. § 924(e)(2)(B)(i); see Taylor, 495 U.S. at 585-97 (reviewing legislative history of the ACCA). Felonies that previously qualified under the residual clause -- those that "otherwise involve[d] conduct that presents a serious potential risk of physical injury to another" -- no longer count. Johnson, 135 S. Ct. 2551, 2557.

To determine whether a felony remains an ACCA predicate, the Court looks first to the statute itself. If it sets forth a single crime committed in one fashion it is "indivisible," and the Court applies the "categorical approach" of examining the statutory definition andcontrolling judicial interpretations of it. Descamps, 133 S.Ct. at 2284. Only if the statute sets forth various alternative elements to committing the crime does it become "divisible," so that the Court may apply the "modified categorical approach" to look beyond the statute itself to the individual defendant's conviction. Id.

The three assault crimes set forth in § 14-32¹⁰ are all indivisible. Each consists of a single, indivisible set of elements: AWDWIKISI requires (1) an assault (2) with a deadly weapon (3) with intent to kill (4) inflicting serious injury (5) not resulting in death. State v. King, 468 S.E.2d 232, 237 (N.C. 1996). AWDWIK requires (1) an assault (2) with a deadly weapon (3) with the intent to kill. State v. Garris, 663 S.E.2d 340, 349 (N.C. 2008). And AWDWISI requires (1) an assault (2) with a deadly weapon (3) inflicting serious injury (4) not resulting in death. State v. Jones, 538 S.E.2d 917, 922 (N.C. 2000). There are noalternatives here.

Thus, just as with Michigan's "felonious assault," see supra, the Court applies the "categorical approach" to determine whether § 14-32 assaults involve the "use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i); see Welch, 136 S.Ct. at 1262; Descamps, 133 S.Ct. at 2284.; United States v. Brown, 379 F. App'x 872, 874 (11th Cir. 2010) ("To determine whether a crime constitutes a violent felony, a court must follow a categorical approach in which it looks 'only to the statutory definitions of the prior offenses, and not to the particular facts underlying those convictions.'") (quoting Taylor, 495 U.S. at 600).

2. Not the Elements Clause, Thus the Residual

The Government...