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Walker v. United States

United States District Court, M.D. Florida, Jacksonville Division

June 13, 2019

ANDRE MAURICE WALKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MARCIA MORALES HOWARD, UNITED STATES DISTRICT JUDGE.

         This case is before the Court on Petitioner Andre Maurice Walker's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (Civ. Doc. 1; § 2255 Motion) and Supporting Memorandum (Civ. Doc. 17; Memorandum).[1] Walker pled guilty to one count of being a felon in possession of a firearm. (See Crim. Doc. 30; Plea Agreement). On January 22, 2009, the Court determined that Walker was an armed career criminal under 18 U.S.C. § 924(e) and sentenced him to a term of 151 months in prison. (See Crim. Doc. 51; Judgment).[2] Walker raises a single claim: that the Court incorrectly sentenced him under the Armed Career Criminal Act (ACCA) in light of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The United States has responded (Civ. Doc. 18; Response), and Walker has replied (Civ. Doc. 21; Reply). The Court has also considered Walker's Notice of Supplemental Authority. (Civ. Doc. 22; Notice of United States v. Hart, 684 Fed.Appx. 834 (11th Cir. 2017)). Thus, the matter is ripe for review.

         Pursuant to 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[3], the Court has determined that a hearing is not necessary to resolve the merits. See Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015) (an evidentiary hearing is not required when the petitioner asserts allegations that are contradicted by the record or patently frivolous, or if in assuming the facts that he alleges are true, he still would not be entitled to any relief); Patel v. United States, 252 Fed.Appx. 970, 975 (11th Cir. 2007).[4] For the reasons below, Walker's § 2255 Motion is due to be denied.

         I. The ACCA and Johnson

         Pursuant to 18 U.S.C. § 922(g), a person convicted of being a felon in possession of a firearm is ordinarily subject to a maximum term of imprisonment of 10 years. Under the ACCA, however, that person is subject to an enhanced mandatory minimum sentence of 15 years in prison if he has three or more prior convictions for a violent felony or a serious drug offense, or both. 18 U.S.C. § 924(e)(1). The term “serious drug offense” includes

an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law….

18 U.S.C. § 924(e)(2)(A)(ii). At the time of Walker's offense conduct and sentencing, the term “violent felony” included “any crime punishable by imprisonment for a term exceeding one year” 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) (emphasis added). Subsection (i) of this provision is referred to as the “elements clause, ” the first nine words of subsection (ii) are referred to as the “enumerated clause, ” and the rest of subsection (ii), which is emphasized above, is referred to as the “residual clause.” Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016).

         In Johnson v. United States, the Supreme Court held that the residual clause was unconstitutionally vague. 135 S.Ct. at 2557-58, 2563. However, the Supreme Court made clear that the elements clause and the enumerated clause remained unaffected. Id. at 2563. Later, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that Johnson applies retroactively on collateral review.

         For a prisoner to successfully challenge his ACCA sentence based on Johnson, he must prove “more likely than not” that reliance on the residual clause led the sentencing court to impose the ACCA enhancement. Beeman v. United States, 871 F.3d 1215, 1220-22 (11th Cir. 2017), cert. denied, 139 S.Ct. 1168 (2019).

Only if the movant would not have been sentenced as an armed career criminal absent the existence of the residual clause is there a Johnson violation. That will be the case only (1) if the sentencing court relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause (neither of which were called into question by Johnson) to qualify a prior conviction as a violent felony, and (2) if there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense.

Id. at 1221. “If it is just as likely that the sentencing court relied on the elements or enumerated offenses clause, solely or as an alternative basis for the enhancement, then the movant has failed to show that his enhancement was due to use of the residual clause.” Id. at 1222.

         Whether the sentencing court relied on the residual clause is a “historical fact, ” which is determined by reference to the state of affairs that existed at the time of sentencing. See id. at 1224 n.5. Thus, court decisions made afterward holding that a particular offense does not qualify under the elements clause or the enumerated offense clause “cast[ ] very little light, if any, on th[is] key question of historical fact.” Id. A prisoner can establish that the sentencing court relied on the residual clause in two ways. First, the prisoner can point to “direct evidence: comments or findings by the sentencing judge indicating that the residual clause was relied on and was essential to application of the ACCA in that case.” Id. at 1224 n.4. Alternatively, absent direct evidence, there will

sometimes be sufficient circumstantial evidence to show the specific basis of the enhancement. For example, there could be statements in the PSR [Presentence Investigation Report], which were not objected to, recommending that the enumerated clause and the elements clause did not apply to the prior conviction in question and did not apply to other prior convictions that could have served to justify application of the ACCA. Or the sentencing record may contain concessions by the prosecutor that those two other clauses do not apply to the conviction in question or others.

Id. A prisoner may also circumstantially prove that the ACCA sentence depended on the residual clause “if the law was clear at the time of sentencing that only the residual clause would authorize a finding that the prior conviction was a violent felony.” Id. at 1224 n.5 (emphasis added). However, if “‘the evidence does not clearly explain what happened … the party with the burden loses.'” Id. at 1225 (quoting Romine v. Head, 253 F.3d 1349, 1357 (11th Cir. 2001)).

         II. Timeliness

         Before reaching the merits, the Court addresses the United States' argument that Walker's § 2255 Motion is untimely. Response at 1, 3. The United States asserts that Walker's § 2255 Motion is untimely because “[s]ection 924(e)'s definition of a serious drug offense is entirely unchanged by Johnson” and “Walker has three previous convictions for serious drug offenses.” Response at 4. According to the United States, the three serious drug offenses consist of two prior convictions for possession of cocaine with intent to sell and one prior conviction for trafficking cocaine, each under Florida law. Id. Walker does not dispute that his two convictions for possession of cocaine with intent to sell are serious drug offenses. See Memorandum at 3-4. However, Walker devotes most of his Memorandum to arguing that his prior conviction for trafficking cocaine no longer qualifies as a serious drug offense. See Memorandum at 3-11.

         Under the Antiterrorism and Effective Death Penalty Act (AEDPA), there is a one-year statute of limitations for a federal prisoner to file a motion to vacate, set aside, or correct sentence. 28 U.S.C. § 2255(f). The limitations period runs from the latest of four possible trigger dates. Id. Walker invokes only § 2255(f)(3)'s trigger date. § 2255 Motion at 7. Under § 2255(f)(3), a prisoner may file a motion to vacate within one year of “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). Walker contends that the § 2255 Motion is timely because he filed it within one year of the Supreme Court's decision in Johnson, which the Supreme Court held in Welch to be retroactively applicable on collateral review. § 2255 Motion at 7.

         The Eleventh Circuit's discussion in Beeman about how to apply the statute of limitations is instructive. 871 F.3d at 1219-21. In Beeman, the prisoner filed a § 2255 motion raising three arguments:

First, he contended that the Johnson decision invalidated his ACCA sentences because when he was sentenced in 2009 his Georgia conviction for aggravated assault would have qualified as a violent felony under the residual clause of the ACCA. Second, he pointed out that his aggravated assault conviction was not a violent felony under the enumerated offenses clause because assault is not included in that list of crimes. And third, he argued that a conviction under the Georgia aggravated assault statute does not now qualify as a violent felony under the elements clause. In making that argument about the elements clause he relied heavily on the Supreme Court's 2013 decision in Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), which is one in a line of Supreme Court decisions describing how federal courts should determine whether an offense qualifies as a predicate offense under the ACCA's enumerated offenses and elements clauses. See Mathis v. United States, 579 U.S. ___, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016); Descamps, 133 S.Ct. 2276; Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990).

Beeman, 871 F.3d at 1218.

         The Eleventh Circuit determined that Beeman's § 2255 motion was timely to the extent he raised a Johnson claim, but that it was untimely to the extent he raised a Descamps claim. Id. at 1220. The Eleventh Circuit explained that

[a] Johnson claim and a Descamps claim make two very different assertions. A Johnson claim contends that the defendant was sentenced as an armed career criminal under the residual clause, while a Descamps claim asserts that the defendant was incorrectly sentenced as an ...

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