United States v. Mitchell

218 F.Supp.3d 360

UNITED STATES of America

v.Helene MITCHELL, Defendant.

CRIMINAL NO. 1:06–CR–353

United States District Court, M.D. Pennsylvania.

Signed November 10, 2016

Michael A. Consiglio, U.S. Attorney's Office, Harrisburg, PA, for United States of America.

MEMORANDUM

Christopher C. Conner, Chief Judge

Defendant Helene Mitchell ("Mitchell") pled guilty in December of 2006 to possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e). Because Mitchell had three or more qualifying prior convictions under the Armed Career Criminal Act ("ACCA" or "the Act"), she received a mandatory minimum sentence of fifteen years' imprisonment. See 18 U.S.C. § 924(e). Mitchell presently moves the court for vacatur of her fifteen-year sentence in light of the United States Supreme Court's decision in Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), which invalidated the ACCA's residual clause as unconstitutionally vague. Id. at 2557. For the reasons that follow, the court will grant Mitchell's motion (Doc. 83) and schedule resentencing forthwith.

I. Factual Background & Procedural History

On October 18, 2006, a federal grand jury sitting in Harrisburg, Pennsylvania, returned a two-count indictment against Mitchell and a codefendant, Robert Allen Boswell ("Boswell"). (Doc. 1). The indictment charged Mitchell in Count II with possession of firearms by a convicted felon in violation of 18 U.S.C. §§ 922(g) and 924(e), to wit: a New England Firearms shotgun, a Stevens Brand shotgun, and two Marlin rifles. (Id. ) Count I charged Boswell with the same offense. (Id. )

Mitchell executed a written plea agreement on December 14, 2006. (Doc. 29). During a guilty plea proceeding on December 20, 2006, the court advised Mitchell that her guilty plea would carry, inter alia , a mandatory minimum term of fifteen years' imprisonment pursuant to the ACCA. Mitchell stated that she understood her sentencing exposure and entered a plea of guilty to Count II. (Doc. 38).

The United States Probation Office prepared a presentence report ("PSR") which calculated Mitchell's offense level and criminal history category pursuant to the United States Sentencing Guidelines. The PSR initially reflected a total offense level of 23. However, Mitchell was subject to the ACCA and thus designated an armed career criminal pursuant to Guidelines § 4B1.4(b)(3)(B). Hence, the PSR upwardly adjusted her offense level to 30. With a criminal history category of V, Mitchell's Guidelines range at sentencing was 180 to 188 months. On May 3, 2007, the court sentenced Mitchell to the bottom of her Guidelines range, corresponding with the ACCA's mandatory minimum sentence of fifteen years' imprisonment. (Doc. 60).

Mitchell did not appeal her conviction or sentence to the United States Court of Appeals for the Third Circuit.

Mitchell filed the instant motion (Doc. 83) to vacate her sentence on June 16, 2016, through appointed counsel. The motion is fully briefed and ripe for disposition. On October 24, 2016, Mitchell moved the court for immediate release on bond pending resolution of her underlying § 2255 motion. (Doc. 92). Mitchell contends that, but for the ACCA's sentencing enhancement, she would have been subject to a maximum sentence of ten years' imprisonment. (Id. ) Mitchell submits that, as of October 30, 2016, she has been in continuous custody for more than ten years. (Id. ) Given the exigencies identified in Mitchell's bond request, the court expedited its review and consideration of Mitchell's underlying motion.

II. Standard of Review

Under 28 U.S.C. § 2255, a federal prisoner may move the sentencing court to vacate, set aside, or correct the prisoner's sentence. 28 U.S.C. § 2255. Courts may afford relief under § 2255 on a number of grounds including, inter alia , "that the sentence was imposed in violation of the Constitution or the laws of the United States." 28 U.S.C. § 2255(a) ; see also R. GOVERNING § 2255 CASES 1(a). The statute provides that, as a remedy for an unlawfully-imposed sentence, "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).

III. Discussion

The ACCA compels a mandatory minimum sentence of fifteen years' imprisonment for defendants convicted under 18 U.S.C. § 922(g) who have acquired three prior, adult convictions for a "violent felony" or a "serious drug offense." 18 U.S.C. § 924(e)(1). The Act defines the term "violent felony" to include any offense punishable by imprisonment for more than one year which falls within one of three categories: (1) crimes having "as an element the use, attempted use, or threatened use of physical force against the person of another"; (2) crimes of burglary, arson, or extortion, or which involve use of explosives; and (3) crimes which "otherwise involve[ ] conduct that presents a serious potential risk of physical injury to another." Id. § 924(e)(2)(B)(i)–(ii). Courts refer to the first clause as the "force clause," the second as the "enumerated offenses clause," and the third as the "residual clause."

The Supreme Court in Johnson invalidated only the residual clause of the ACCA as unconstitutionally vague. Johnson , 135 S.Ct. at 2557. Consequently, a defendant may still qualify for an enhanced sentence under the ACCA if they have three or more prior, adult convictions which qualify under the force clause or the enumerated offenses clause. Id. at 2563. Johnson is retroactively applicable to cases on collateral review. Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1265, 194 L.Ed.2d 387 (2016). Whether Mitchell's prior offenses fall within either of the ACCA's vestigial clauses is the central dispute sub judice.

Mitchell adjures that, in the wake of Johnson , her fifteen-year sentence violates the Constitution and laws of the United States and is in excess of the otherwise-applicable maximum sentence of ten years. (See Doc. 83 at 4). Mitchell concedes that her prior conviction for unlawful distribution of crack cocaine is a "serious drug offense" as defined in 18 U.S.C. § 924(e)(2)(A), constituting the first of three qualifying strikes against her under the ACCA. (Id. at 2 n.2). She maintains, however, that her three prior convictions for arson under Pennsylvania law are beyond the reach of both the enumerated offenses clause and the force clause. (Id. at 5–9). It is on this basis that Mitchell challenges her enhanced sentence under the Act.

The government renders a threefold response, asserting first , that Mitchell's enumerated offenses claim was cognizable at her 2007 sentencing hearing and is thus untimely; second , that Mitchell procedurally defaulted any challenge to her ACCA designation; and third , that Mitchell's Pennsylvania arson convictions fall within the enumerated offenses clause. (See generally Doc. 89).

A. Statute of Limitations

The government asserts as a threshold issue that Mitchell's enumerated offenses challenge is barred by the one-year statute of limitations applicable to § 2255 motions. (Doc. 89 at 6–7); see 28 U.S.C. § 2255(f). The government posits that Mitchell could have challenged her career criminal status under the enumerated offenses clause based on pre-Johnson case law and, consequently, her post-Johnson petition raising those arguments is untimely. (See id. ) Government counsel acknowledges that the sentencing record contains no indication of whether Mitchell's prior convictions qualified under the residual clause or the enumerated offenses clause. (See id. at 6). The court cannot be certain now—a decade later—which clause applied.

Post-Johnson jurisprudence flatly rejects application of a time bar. Courts resolving this question observe that the now-defunct residual clause would have swept up any conviction successfully challenged under the enumerated offenses clause.¹ It is sufficient for purposes of § 2255 review to show that the court might have applied the residual clause when it imposed the enhanced sentence. See Ladwig , 192 F.Supp.3d at 1158–59, 2016 WL 3619640, at *3. The court adopts the ratio decidendi of this emerging consensus. As set forth below, two of Mitchell's predicate offenses no longer qualify as violent felonies under the ACCA. Mitchell filed her petition within a year of Welch , in which the Supreme Court held that Johnson is retroactively applicable. Therefore, Mitchell's petition is timely. See 28 U.S.C. § 2255(f)(3).

B. Procedural Default

The government contends that Mitchell's claim is procedurally defaulted. (See Doc. 89 at 22). Specifically, the government asseverates that "[t]he status of arson, as an enumerated offense, was available for review at the time of [Mitchell's] plea." (Id. ) Mitchell responds that any effort to challenge her ACCA designation at the time of her guilty plea or at sentencing "would have been futile" because Pennsylvania arson was a qualifying conviction under the residual clause. (Doc. 90 at 5–6).

When a defendant fails to raise a claim on direct review, she "procedurally defaults" that claim for purposes of collateral review. United States v. Bousley , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998). A defendant may surmount a default by showing cause, as well as resulting prejudice should the default be given preclusive effect. United States v. Doe , 810 F.3d 132, 153 (3d Cir. 2015). Cause has been found to exist when a subject "constitutional claim is so novel that its legal basis is not reasonably available to counsel" in earlier proceedings. Bousley , 523 U.S. at 622, 118 S.Ct. 1604 (quoting Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ). In Reed , the Supreme Court specified three circumstances that trigger a novelty exemption: (1) the Court overrules one of its precedents; (2) the Court overturns a "longstanding and widespread [and] near-unanimous body of lower court authority"; or (3...