Evans v. United States

DERRICK EVANS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 4:16-CV-1185 CAS

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

June 5, 2018

MEMORANDUM AND ORDER

This matter is before the Court on movant Derrick Evans's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255, as supplemented, based on Johnson v. United States, 135 S. Ct. 2551 (2015), and Mathis v. United States, 136 S. Ct. 2243 (2016).¹ Johnson held that the Armed Career Criminal Act's² ("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 either enumerated clause convictions (Missouri burglary first degree and burglary second degree) orelements/use of force convictions (Missouri domestic assault second degree), and not residual clause violent felonies. The government also argues that movant's motion is not cognizable in a successive habeas action to the extent it attacks his Missouri burglary convictions because he seeks relief based on statutory interpretation principles set forth in Mathis, as opposed to the constitutional holding in Johnson. Thus, the government contends movant 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 finds that movant has shown the ACCA no longer authorizes his sentence, and will grant the motion to vacate.

I. Background

On February 8, 2007, 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. Evans, No. 4:07-CR-87 CAS (E.D. Mo.) (Doc. 1). Movant pleaded guilty on July 6, 2007. (Docs. 31, 32, No. 4:07-CR-87.) A presentence investigation report ("PSR") was prepared after the guilty verdict. (Doc. 76, No. 4:07-CR-87.) The PSR stated that movant met the Armed Career Criminal provisions of 18 U.S.C. § 924(e) as he "has prior convictions for Burglary Second Degree (Docket No. 01CR-4161), Burglary First Degree (Docket No. 01CR-2357), two counts of Burglary Second Degree (Docket No. 01CR-2360), Burglary Second Degree (Docket No. 01CR-2275), and two counts of Domestic Assault Second Degree (Docket No. 04CR-1586)." (Id. at 6, ¶ 26.)

On September 25, 2007, the Court sentenced movant to 180 months imprisonment and a three-year period of supervised release. Movant appealed, arguing that four prior convictions for offenses he committed at age 17 should not have been used to enhance his sentence under 18 U.S.C.§ 924(e). The Eighth Circuit Court of Appeals rejected this argument and affirmed. United States v. Evans, 317 F. App'x 580, 581 (8th Cir. 2009).

Movant filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on August 9, 2010. The Court dismissed the action as time barred. Evans v. United States, No. 4:10-CV-1490 CAS (E.D. Mo.) (Mem. and Order of Sept. 20, 2010). Movant did not appeal the dismissal. Movant filed a second pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on December 1, 2011. The Court dismissed the motion without prejudice after movant failed to comply with the Court's order requiring him to file an amended motion to vacate on a court-provided form. Evans v. United States, No. 4:11-CV-2112 CAS (E.D. Mo.) (Order of Apr. 17, 2012). Movant did not appeal the dismissal.

After the Supreme Court decided Johnson, movant filed a third pro se motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Evans v. United States, 4:16-CV-218 CAS (E.D. Mo.). Through counsel, movant filed a petition for authorization with the Eighth Circuit Court of Appeals to file a successive motion under 28 U.S.C. § 2255, which was granted. Evans v. United States, No. 16-1676 (8th Cir. June 30, 2016). Counsel subsequently filed an amended motion to vacate, but the Court dismissed the case without prejudice because jurisdiction was lacking at the time the action was filed, and directed the Clerk to open a new case with the amended motion to vacate filed by counsel along with the judgment and mandate from the Court of Appeals, with the filing date of June 30, 2016. Evans, 4:16-CV-218 CAS (Order of July 19, 2016). The instant case was opened on June 30, 2016.

II. Legal Standard

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).

III. Discussion

In the motion to vacate, movant asserts that after Johnson declared the ACCA's residual clause unconstitutional, his domestic assault and burglary convictions no longer qualify as predicate offenses, as they do not qualify as violent felonies under the enumerated offenses or force clauses of the ACCA. 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 ACC convictions were either classified as violent felonies under the enumerated clause of the ACCA (the first- and second-degree burglary convictions), or the elements/use of force clause (domestic assault second), and not the residual clause.

The 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 "attackshis 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." Response at 6.

Movant 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.

A. The Armed Career Criminal Act

Movant's 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, involvesuse 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.

B. Movant Meets the Requirements of 28 U.S.C. §§ 2244 and 2255(h)(2)

Section 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 argues that movant's motion does not present a cognizable claim because it is not based on a new rule of constitutional law as required by 28 U.S.C. § 2255(h)(2). The government contends that movant attacks his burglary convictions using a means/elements analysis of the Missouri burglary statute, and is therefore based on statutory interpretation principles set forth in Mathis, and not on the constitutional holding in Johnson that announced a new rule of federal law.

In Mathis, the Supreme Court held that in...