United States v. James

179 F.Supp.3d 999

United States of America, Plaintiff,

v.Timothy Joe James, Defendant.

Case No. 06-20172-JWL

15-9479-JWL

United States District Court, D. Kansas.

Signed April 6, 2016

Terra D. Morehead, Office of United States Attorney, Kansas City, KS, for Plaintiff.

Michael L. Harris, Office of Federal Public Defender, Kansas City, KS, for Defendant.

MEMORANDUM & ORDER

John W. Lungstrum, United States District Judge

In June 2007, defendant Timothy Joe James pled guilty to the offense of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).

The Presentence Investigation Report (PSR) determined that Mr. James was eligible for sentencing under the Armed Career Criminal Act (ACCA), which authorizes an enhanced penalty for a person who violates § 922(g) and has three previous convictions for crimes that meet the definition of a “violent felony.” See 18 U.S.C. § 924(e). Specifically, the PSR determined that Mr. James, in 1983, pled guilty to three separate counts of second-degree burglary under Missouri law. At sentencing, the court overruled Mr. James' objections relating to the application of the ACCA and imposed the ACCA's mandatory minimum 15-year sentence.¹

This matter is now before the court on Mr. James' motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. In support of his motion, Mr. James contends that, in light of Johnson v. United States , –––U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), his burglary convictions no longer qualify as violent felonies for purposes of the ACCA and the court must vacate his sentence. As will be explained, the motion is granted.

Procedural Posture of Mr. James' Case

In his motion, Mr. James concedes that his conviction became final sometime in 2009 after the Supreme Court denied his petition for writ of certiorari. Nonetheless, he asserts that the one-year statute of limitations for habeas petitions does not bar this initial § 2255 motion because the motion is timely filed pursuant to § 2255(f)(3), which provides that the one-year statute of limitation period may begin to run on “the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review.” 28 U.S.C. § 2255(f)(3). The Tenth Circuit has already determined that the Johnson case recognized a new constitutional right. In re Gieswein , 802 F.3d 1143, 1146 (10th Cir.2015).² Neither the Supreme Court nor the Tenth Circuit has yet determined whether Johnson applies retroactively on collateral review, but the Supreme Court has granted a petition for writ of certiorari on that issue and recently heard argument in the case. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 790, 193 L.Ed.2d 534 (2016). Mr. James urges the court to decide that Johnson is retroactive and it appears that the court is authorized to make that determination. See Browning v. United States , 241 F.3d 1262, 1264 (10th Cir.2001) (suggesting that lower courts are authorized to make retroactivity decisions on initial habeas applications but only Supreme Court can make that determination for purposes of successive petitions).

The court declines to render a decision about whether Johnson is retroactive to cases on collateral review because the government has expressly waived non-retroactivity as a defense and any defense based on the statute of limitations. See United States v. McColley , 2016 WL 1156520, at *2 (W.D.Pa. Mar. 24, 2016) (accepting government's waiver of retroactivity argument); Hardman v. United States , 149 F.Supp.3d 1144, 1148 & n. 1, 2016 WL 878505, at *2 & n. 1 (W.D.Mo. Mar. 7, 2016) (moving directly to substance of defendant's claim where government conceded that Johnson applies retroactively);; Brascomb v. United States , 2015 WL 7300512, at *2 (M.D.Ala. Nov. 18, 2015) (government's waiver of limitations defense under 2255(f)(3) removes from the court's consideration the issue of whether a Supreme Court decision applies retroactively); United States v. Miller , 2014 WL 4693689, at *6 (E.D.Ky. Aug. 28, 2014) (concluding that government's deliberate waiver of nonretroactivity as a defense was “binding” on the court); United States v. Imm , 2014 WL 6774072, at *2 (W.D.Pa. Dec. 1, 2014) (honoring government's affirmative waiver of retroactivity argument despite overwhelming weight of authority interpreting decision as nonretroactive); Thomas v. United States , 2014 WL 1477892, at *2 n. 2 (S.D.Ill. Apr. 15, 2014) (government's waiver of retroactivity under § 2255(f)(3) removes the issue from the case and court could not consider it); United States v. Morrison , 2013 WL 3517333, at *2 n. 3 (W.D.Va. July 11, 2013) (finding that § 2255(f)(3) “does not apply, in light of the government's waiver”). For purposes of this particular case, then, the court may proceed directly to the merits of Mr. James' claim without regard to the retroactivity requirement set forth in § 2255(f)(3).

Pertinent Statutory Framework of the ACCA

The ACCA dictates a minimum fifteen-year sentence if the offender violates § 922(g) and has “three previous convictions... for a violent felony or a serious drug offense.” Id. § 924(e). Under the ACCA,

the term “violent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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)(i)-(ii) (emphasis added). The emphasized language is commonly referred to as the “residual clause.” In re Gieswein , 802 F.3d 1143, 1145 (10th Cir.2015) (citing Johnson, 135 S.Ct. at 2556 ). In Johnson, the Supreme Court held that enhancing a sentence under the residual clause violates a defendant's right to due process because that portion of the ACCA is unconstitutionally vague. Id . (citing Johnson , 135 S.Ct. at 2557, 2563 ).

Mr. James asserts that his three prior convictions for burglary under Missouri law qualify as violent felonies only under the ACCA residual clause. The government, in response to Mr. James' motion, contends that Mr. James' convictions nonetheless qualify for the ACCA enhancement because the surviving definition of “violent felony” under the ACCA includes a felony conviction for “burglary” as one of four enumerated offenses. See id. at 1145 n. 2. “Burglary” is not defined in the ACCA, but the Supreme Court has construed the term to mean “generic burglary”—an “unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Taylor v. United States , 495 U.S. 575, 598, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Missouri's Second-Degree Burglary Statute

If the definition of “burglary” in the Missouri statute under which Mr. James was convicted substantially corresponds to the “generic” definition of burglary, then Mr. James' convictions undoubtedly qualify as violent felonies under the ACCA's enumerated offenses clause. United States v. Ridens , 792 F.3d 1270, 1272 (10th Cir.2015) (under the “categorical approach,” the court looks only at the elements of the statute of conviction when that statute's definition of burglary fits the generic definition of burglary). But if the Missouri statute encompasses a broad array of conduct, some of which would trigger the enhancement and some of which would not, the court must apply the “modified categorical approach,” looking to “reliable judicial records to determine whether a predicate conviction was based on conduct triggering the enhancement.” United States v. Dominguez – Rodriguez , 817 F.3d 1190, 1194, 2016 WL 1258400, at *4 (10th Cir.2016) (citations and quotations omitted).

The record in this case demonstrates that Mr. James pled guilty to three separate counts of an amended complaint charging that he committed burglary in the second degree in violation of Missouri Revised Statutes § 569.170. At the time of his convictions in 1983, that statute provided that a person commits second-degree burglary “when he knowingly enters unlawfully or knowingly remains unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.” V.A.M.S. § 569.170.³ The phrase “inhabitable structure,” in turn, was defined to include “a ship, trailer, sleeping car, airplane, or other vehicle or structure” where people live, conduct business, assemble or stay overnight. V.A.M.S. § 569.010(2).⁴

Application of the Categorical Approach

The Eighth Circuit has held that the basic elements of Missouri's second-degree burglary statute are “the same” as those of the generic burglary offense such that a conviction under the Missouri statute qualifies, as a categorical matter, as a violent felony under the ACCA. See United States v. Olsson , 742 F.3d 855, 856 (8th Cir.2014). In Olsson, however, the Eighth Circuit never addressed the broad definition of “inhabitable structure” found in V.A.M.S. § 569.010(2) and restricted its review to the language of § 569.170. Because a reading of those provisions together reflects that the Missouri statute defines burglary more broadly than generic burglary, the court is not persuaded by the Olsson decision. Moreover, in other decisions, the Eighth Circuit has acknowledged that the Missouri burglary statute is broader than generic burglary as defined in Taylor. See United States v. Owens , 596 F.3d 430, 431 n. 2 (8th Cir.2010) ; United States v. Bell , 445 F.3d 1086, 1090–91 (8th Cir.2006) (burglary under Missouri statute is “broadly defined” to include ships, airplanes and vehicles but PSR revealed that...