Johnson v. United States, 1:08-cr-018

ANTHONY JOHNSON, Petitioner v. UNITED STATES OF AMERICA, Respondent

No. 1:08-cr-018

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

February 28, 2018

(Judge Kane)

MEMORANDUM

Before the Court is Petitioner Anthony Johnson's Motion to Correct Sentence Under 28 U.S.C. § 2255. (Doc. No. 136.) For the reasons that follow, the Court will grant Petitioner's motion.

I. BACKGROUND

On December 23, 2008, Petitioner pled guilty to possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). (Doc. No. 67.)¹ Petitioner was sentenced pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e), (the "ACCA"), which dictated a mandatory minimum term of incarceration of 15 years because he had previously been convicted of three serious drug offenses or violent felonies. 18 U.S.C. § 924(e). The United States Probation Office prepared a Presentence Report ("PSR"), which calculated Petitioner's sentencing guideline range to be 188 to 235 months based on an offense level of 31, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), with a three level reduction for acceptance of responsibility, and a criminalhistory category of VI, pursuant to U.S.S.G. § 4B1.4(c)(2). (PSR ¶¶ 23, 33 and 61.) At sentencing, the Court determined that Petitioner did not possess a firearm in connection with a crime of violence and therefore, U.S.S.G. § 4B1.4(b)(3)(A) was not applicable. (Doc. No. 136 at 2.) Accordingly, his offense level was reduced to 30 and his sentencing guideline term was 180 months' imprisonment, the mandatory minimum term. (Id.) The Court sentenced Petitioner to 180 months' imprisonment on April 8, 2009. (Doc. No. 78.) The United States Court of Appeals for the Third Circuit affirmed on appeal. United States v. Johnson, 592 F.3d 443 (3d Cir. 2010). Petitioner remains in federal custody.

On June 24, 2016, Petitioner filed the instant Motion to Correct Sentence Under 28 U.S.C. § 2255. (Doc. No. 136.) The basis for Petitioner's motion is his argument that pursuant to the United States Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015),² his prior convictions for aggravated assault and robbery in Pennsylvania do not qualify as violent felonies, and therefore, he no longer has three predicate convictions qualifying him for sentencing pursuant to the ACCA, resulting in a sentence that violates his right to due process.³ (Doc. No. 136 at 3.) On September 27, 2016, the Court issued an Order directing the United States to respond to Petitioner's motion. (Doc. No. 142.) The United States filed its Brief in Opposition to Petitioner's Motion to Correct Sentence Under 28 U.S.C. § 2255 on October 17,2016. (Doc. No. 144.) Petitioner submitted his reply brief on October 31, 2016. (Doc. No. 145.) Petitioner subsequently submitted Notices of Supplemental Authority pertaining to his motion on May 4, 2017 (Doc. No. 146), and October 5, 2017 (Doc. Nos. 147, 148). Petitioner's Motion to Correct Sentence is ripe for disposition.

II. DISCUSSION

Pursuant to 28 U.S.C. § 2255, a federal prisoner may move to vacate, set aside, or correct his sentence on the basis "that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). If a prisoner is entitled to relief under Section 2255(a), "the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

As noted above, the basis for Petitioner's motion is his argument that pursuant to the Supreme Court's decision in Johnson, his prior convictions for aggravated assault and robbery in Pennsylvania no longer qualify as violent felonies, and therefore, he lacks the requisite number of predicate offenses for sentencing under the ACCA; accordingly, his April 8, 2009 sentence violates due process.⁴ (Doc. No. 136 at 3.) A previous adult conviction qualifies as a "violentfelony" under the ACCA when it is punishable by imprisonment for more than one year and "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [force clause]; (ii) is burglary, arson, or extortion, involves use of explosives [enumerated offenses]" or "otherwise involves conduct that presents a serious potential risk of physical injury to another [residual clause]." 18 U.S.C. § 924(e)(2)(B). The Supreme Court in Johnson found the "residual clause" unconstitutionally vague; accordingly, that clause no longer serves as a legal basis for a finding that Petitioner has been convicted of a violent felony. 135 S.Ct. at 2557. Rather, pursuant to Johnson, to qualify as violent felonies under the ACCA, Petitioner's prior convictions must either fall within the "force" clause, or constitute an "enumerated" offense. Before addressing the merits of Petitioner's argument, the Court first turns to the Government's argument that Petitioner has procedurally defaulted his ACCA claim.

A. Procedural Default

The Government argues that Petitioner has procedurally defaulted his claim under the ACCA because the issues raised in this motion were previously available to him, yet he failed to pursue a challenge to his ACCA status. (Doc. No. 144 at 29-30.) Further, the Government maintains that Petitioner cannot demonstrate "cause" and "prejudice" excusing his procedural default. (Id. at 30.) A defendant who fails to raise a claim on direct review "procedurally defaults" that claim for purposes of collateral review. United States v. Bousley, 523 U.S. 614, 622 (1998). Procedural default can be overcome by demonstrating cause for the default and resulting prejudice to the Petitioner. United States v. Doe, 810 F.3d 132, 153 (3d Cir. 2015).Petitioner argues that the cause prong is satisfied here "because a unanimous body of Supreme Court and Circuit precedent foreclosed [Petitioner's] challenge to his armed career criminal classification under the residual clause," and that the prejudice prong is satisfied because Petitioner was sentenced to more than the statutory maximum term for a violation of 18 U.S.C. § 922(g) in the absence of the application of the ACCA. (Doc. No. 145 at 15.)

The Court agrees with Petitioner. Under the circumstances present here, Petitioner has demonstrated cause and prejudice sufficient to overcome his procedural default of his ACCA claims. See United States v. Mitchell, 218 F. Supp. 3d 360, 367-68 (M.D. Pa. 2016) (finding cause and prejudice to excuse a procedural default for an ACCA petitioner who raised a Johnson claim); United States v. Harris, 205 F. Supp. 3d 651, 658 (M.D. Pa. 2016) (finding that ACCA petitioner had cause for his procedural default of his Johnson claim where a vagueness challenge was not reasonably available to him at the time of his sentencing in 2006); see also United States v. Doe, 810 F.3d 132, 153 (3d Cir. 2015) (holding that cause existed excusing procedural default of challenge based on Begay v. United States, 533 U.S. 137 (2008) to career offender sentence because "legal basis for claim was not reasonably available to counsel" before Begay). Accordingly, the Court will address the merits of Petitioner's motion.

B. The Merits

Petitioner argues that his prior convictions for aggravated assault and robbery in Pennsylvania do not qualify as predicate offenses under the ACCA after Johnson, as they do not satisfy the force clause and are not enumerated offenses; accordingly, he maintains that in the absence of convictions for aggravated assault and robbery as predicate offenses, he no longerqualifies for sentencing under the enhanced penalties of the ACCA, entitling him to relief under 28 U.S.C. § 2255.⁵ (Doc. No. 136 at 5-15.) The Court addresses each conviction in turn.

1. Pennsylvania Aggravated Assault

Petitioner was charged with aggravated assault in Philadelphia in 1987, pled guilty to the offense, and was sentenced the following year. (Id.) Petitioner argues that at his sentencing, this Court apparently determined that Petitioner's aggravated assault conviction was a "violent felony," although the record does not demonstrate under which clause of Section 924(e)(1)(B) the Court did so. (Id.) Petitioner argues that in the absence of the residual clause after Johnson, his conviction under Pennsylvania's aggravated assault statute does not qualify as a violent felony under either the enumerated clause (as it is not one of those listed), or the force clause. (Id.)

At the time of Petitioner's aggravated assault conviction, Pennsylvania's aggravated assault statute contained six subsections, permitting the Government to prove the crime in one of six ways. The statute provided:

A person is guilty of aggravated assault if he:

(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life;

(2) attempts to cause or intentionally, knowingly or recklessly causes serious bodily injury to any of the officers, agents, employees or other persons enumeratedin subsection (c) or to any employee of an agency, company or other entity engaged in public transportation, while in the performance of duty;

(3) attempts to cause or intentionally or knowingly causes bodily injury to any of the officers, agents, employees or other persons enumerated in subsection (c), in the performance of duty;

(4) attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon;

(5) attempts to cause or intentionally or knowingly causes bodily injury to a teaching staff member, school board member or other employee, including [various school employees] . . . ; or

(6) attempts by physical menace to put any of the officers, agents, employees or other

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