Lewis v. United States

EDWARD LEE LEWIS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 2:16-cv-05565

Criminal Action No. 2:02-cr-00042

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

October 24, 2017

MEMORANDUM OPINION AND ORDER

Pending before the court is Edward Lee Lewis's Motion to Correct Sentence Under 28 U.S.C. § 2255 [ECF No. 252]. This matter is referred to the Honorable Dwane L. Tinsley, United States Magistrate Judge, for submission of proposed findings and a recommendation for disposition, pursuant to 28 U.S.C. § 636(b)(1)(B). For reasons appearing to the court, it is hereby ORDERED that the referral of this matter to the Magistrate Judge is WITHDRAWN.

I. Procedural History and Positions of the Parties

On August 16, 2002, following a jury trial, Mr. Lewis was convicted of four counts of mailing threatening communications in violation of 18 U.S.C. § 876; one count of mailing threatening communications to the President in violation of 18 U.S.C. § 871; and one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). Mr. Lewis had previously been convicted in the Circuit Court of Putnam County, West Virginia of three counts of daytime burglary in violation of W. Va. Code § 61-31-11.

At sentencing, which occurred on November 7, 2002, this court found that Mr. Lewis's three prior daytime burglary convictions were "violent felonies" as defined by 18 U.S.C. § 924(e)(2)(B).¹ As a result of these prior convictions, Mr. Lewis was classified as an armed career criminal under 18 U.S.C. § 924(e) (the "Armed Career Criminal Act" or "ACCA"). The ACCA provides for a sentencing enhancement for a felon possessing a firearm or ammunition when the defendant has three prior convictions for violent felonies and/or serious drug offenses. With this enhancement, Mr. Lewis was subject to a mandatory minimum sentence of fifteen years of imprisonment.² Mr. Lewis was sentenced to serve 192 months in prison, followed by a three-year term of supervised release. J., No. 2:02-cr-42 [ECF No. 88]. Mr. Lewis's sentence was affirmed on appeal. United States v. Lewis, 75 F. App'x 164 (4th Cir. 2003).

On September 16, 2004, Mr. Lewis, proceeding pro se, filed a Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255. Mot. Vacate, No. 2:02-cr-42 [ECF No. 126]. This motion was denied on November 30, 2005. Mem. Op. & Order, No. 2:02-cr-00042 [ECF No. 146].³ Mr. Lewis was denied a certificate of appealability, and his appeal of the decision denying his § 2255 motion was dismissed on August 25, 2006. United States v. Lewis, No. 05-7936, 2006 WL 2467337 (4th Cir. Aug. 25, 2006). Mr. Lewis subsequently filed a number of other motions that are not relevant to the instant matter.

On June 26, 2015, the Supreme Court decided United States v. Johnson, 135 S. Ct. 2551, 2557 (2015), holding that the residual clause⁴ of the ACCA is unconstitutionally vague and further holding that the imposition of an increased sentence thereunder violates due process. As noted by the United States, the Supreme Court specifically excluded the remainder of the ACCA from its holding in Johnson. The Court stated, "[t]oday's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony." Id. at 2563. Thus, a prior conviction may still qualify as a violent felony if it meets the element of force criterium contained in §924(e)(2)(B)(i) ("the force clause") or is one of the enumerated offenses contained in § 924(e)(2)(B)(ii) ("theenumerated offense clause"), namely burglary, arson, extortion, or a crime involving explosives.

On April 18, 2016, the Supreme Court decided Welch v. United States, 136 S. Ct. 1257, 1265 (2016), in which the Court determined that Johnson was a substantive, rather than a procedural, decision because it affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied. Therefore, the Court held that Johnson announced a new substantive rule that applies retroactively to cases on collateral review. Id.

On May 6, 2016, attorney W. Michael Frazier was appointed to represent Mr. Lewis for the purpose of determining whether he qualifies for federal habeas relief under § 2255 in light of Johnson. Order [ECF No. 246]. On June 21, 2016, Mr. Lewis was authorized by the United States Court of Appeals for the Fourth Circuit to file a second § 2255 motion asserting a Johnson claim. Notice [ECF No. 250]; Order [ECF No. 251]. That same date, the court docketed the instant Motion to Correct Sentence [ECF No. 252], and subsequently permitted Mr. Lewis to file a Supplemental Brief addressing his Johnson claim, which was filed on August 11, 2016. Suppl. Br. [ECF No. 258]. Mr. Lewis's brief asserts that, after Johnson, his prior daytime burglary offenses no longer qualify as "violent felonies" under the ACCA.

On September 12, 2016, the United States ("the Government") filed a Response to Mr. Lewis's § 2255 motion and Supplemental Brief. Answer to Def.'s Suppl. Br. [ECF No. 268]. The Government's Response asserts that, in order to prevail on hissecond § 2255 motion, Mr. Lewis has the burden of proving by a preponderance of the evidence that his claim for relief is based upon a new rule of constitutional law and, thus, "is unlawful on one of the specified grounds." Id. at 4 (quoting United States v. Pettiford, 612 F.3d 270, 277 (4th Cir. 2010)).

The Government's Response further contends that because "the defendant's challenge is nominally based on Johnson, he must prove that he was sentenced under the residual clause of the ACCA and that the use of that clause made a difference in sentencing." Id. at 4. Relying upon authority from the Seventh and Eleventh Circuits, the Government asserts that, unless it is clear from the record that the District Court specifically found Mr. Lewis's prior crimes to be "violent felonies" under the residual clause, his convictions remain unaffected by Johnson and his § 2255 motion must be denied. Id. at 4-5 (citing Stanley v. United States, No. 15-3728, 2016 WL 3514185, at *3 (7th Cir. June 27, 2016); In re Moore, No. 16-13993-J & 16-14361-J, 2016 WL 4010433, at *3-4 (11th Cir. July 27, 2016)). The Government further contends that Mr. Lewis cannot meet this burden because the record fails to indicate the basis for the finding that Mr. Lewis's three prior daytime burglary convictions were convictions for "violent felonies." Id. at 6-10.

On September 14, 2016, Mr. Lewis filed Movant's Response to Government's Argument, in which he concedes that he has to prove that he is entitled to the relief he seeks, but further contends that "it would be a rare case where a district judgeexpressly states 'I hereby sentence you under the residual clause.'" Movant's Resp. to Gov't's Arg. 1 ("Reply") [ECF No. 269]. The Reply further states:

We have no direct evidence of how the judge arrived at his enhancement, as the judge merely recited statutory terms. But to qualify Movant for an ACCA sentence, the judge had to use one of three avenues; the force clause, the enumerated offense clause, or the residual clause. He could not have used the force clause, because his prior felonies do not qualify under that, as discussed in the initial brief. He could not have used the enumerated offense clause as West Virginia burglary is broader than the "generic" definition, and thus would not qualify. So the only way the judge could have arrived at the ACCA enhancement is via the residual clause, which Johnson invalidated.

* * *

Movant believes it is obvious his argument is based on a "new rule . . . that was unavailable to him at trial or on direct appeal." The recent case of United States v. Desmond Ra'Keesh White, ___ F.3d ___, 2016 WL 4717943 (4th Cir. Sept. 9, 2016) effectively closed this argument for the Government. "It would have been futile for [Mr. Lewis] to argue that those [burglary] convictions did not qualify as ACCA violent felonies because they fell under the residual clause." [Id.] at Page 16. That is the case here precisely. Movant could not have argued the residual clause was vague, because the Supreme Court had previously said it was not. Sykes v. United States, 564 U.S. 1 (2014). Johnson expressly overruled Sykes.

Id. at 2-3.

On September 22, 2016, Mr. Lewis filed a Notice of Additional Authority [ECF No. 270], providing notice of a decision by a district judge in the United States District Court for the Western District of Virginia. The decision diverged from the reasoning of the Eleventh Circuit's decision in Moore (relied upon by the Government) and heldthat a movant in a second § 2255 proceeding need only show that the district court "may" have used the residual clause in finding a crime to be a "violent felony" in order to be able to pursue relief under Johnson. See United States v. Winston, 207 F. Supp. 3d 669, 675 (W.D. Va. 2016). The United States Court of Appeals for the Fourth Circuit affirmed this portion of the holding, although it vacated the decision on other grounds. See United States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017). The Fourth Circuit's decision will be discussed below.

II. Discussion

A. As a threshold matter, the record need not conclusively prove that the District Court relied upon the residual clause in finding the previous offenses to be "violent felonies."

Following the Supreme Court's retroactive decision in Johnson, the residual clause can no longer be used to qualify a prior crime as a "violent felony." Furthermore, in light of the Fourth Circuit's recent decision in United States v. Winston, the court is not persuaded by the Government's argument that Mr. Lewis must prove that the sentencing court found his prior convictions to be violent felonies based upon the residual clause in order to obtain relief under Johnson.

In Winston, the petitioner challenged the classification of a...