United States District Court, W.D. Pennsylvania
Donetta W. Ambrose United States District Court
action, Defendant pleaded guilty to one Count of possession
of a firearm by a convicted felon, in violation of 18 U.S.C.
922(g)(1). On August 11, 2011, he was sentenced to a term of
180 months imprisonment. His sentence rested, in part, on the
Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). Before the Court is Defendant's Amended
Motion to Vacate pursuant to 28 U.S.C. § 2255, arguing
that his sentence is no longer valid under Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551, 192 L.Ed.2d
569 (2015), and its progeny.
is available under Section 2255 only under exceptional
circumstances, when the claimed errors of law are "a
fundamental defect which inherently results in a complete
miscarriage of justice, " or "an omission
inconsistent with the rudimentary demands of fair
procedure." Hill v. United States, 368 U.S.
424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). A district
court need not hold an evidentiary hearing on a Section 2255
motion if the motion, files, and records show conclusively
that the defendant is not entitled to relief. United
States v. Ritter, 93 Fed.Appx. 402 (3d Cir. 2004). In
this case, a hearing is unnecessary, and the Motion will be
disposed of on the record.
Government first contends that Defendant bears the burden to
demonstrate that his sentence was, in fact, based on
ACCA's residual clause, and that he cannot so demonstrate
in this case because the record is silent on the issue. In a
variety of contexts, courts have declined to impose on habeas
petitioners the type of burden that the Government urges in
this case. See, e.g., Dixson v.
United States, 2016 U.S. Dist. LEXIS 172933 (S.D. Fla.
Dec. 12, 2016) (collecting cases); see also United States
v. Evans, 2015 U.S. Dist. LEXIS 172471, at *6 (W.D. Pa.
Dec. 29, 2015). Indeed, I would be leery of imposing such a
burden, which poses the danger of "hing[ing] an
inmate's entitlement to relief not on whether
Johnson affected his sentence but on whether the
sentencing judge uttered certain 'magic words' it was
not even required to use." In re
Eusebio-Berroa, 2016 U.S. App. LEXIS 18839, at *9
(11th Cir. Aug, 25, 2016) (Pryor, J., concurring).
In any event, in this case, it appears that Defendant's
burglary convictions could only have qualified as predicates
under the residual clause. United States v. Wolf,
2016 U.S. Dist. LEXIS 150230, at *14 (M.D. Pa. Oct. 31,
terms of substance, the Government appears to concede that
Defendant's burglary conviction is not a legitimate
predicate. Instead of responding to Defendant's
argument regarding the burglary conviction, it argues that
even absent the burglary offense, Defendant has additional
prior convictions that would support his ACCA sentence. Those
other convictions, however, were not identified in the
Presentence Report (“PSR”) as the basis for
career offender status, and thus were not adopted by the
Court as a basis for an ACCA sentence. Instead, the PSR
clearly identified three predicate offenses, referred to by
their County Court docket numbers, on which the enhancement
was based: one for robbery, one for burglary, and one for a
drug offense. The Court expressly adopted the factors
relevant to sentencing contained in the PSR. As I have stated
elsewhere, “[i]t may well be that these [other]
convictions would support the same sentence as that
originally imposed, but they did not in fact form the basis
of Defendant's sentence. Accordingly, to that extent,
Defendant has not had the benefit of a full and fair hearing,
or other proceedings that typically occur prior to
sentencing.” United States v. McColley, 2016
U.S. Dist. LEXIS 38760, at *7 (W.D. Pa. Mar. 24, 2016).
Motion is granted, to the extent that his ACCA sentence was
not based on three valid predicate offenses. Accordingly, his
sentence is vacated. The Clerk of Courts shall transfer this
matter to Judge Cercone, who will determine and conduct the
appropriate proceedings going forward.
NOW, this 20th day of January, 2016, IT IS SO ORDERED.
 The cases on which the Government
relies are inapposite. In United States v. Dobbin,
629 Fed.Appx. 448 (3d Cir. 2015), the record did not indicate
that the sentencing court relied on the residual clause of
U.S.S.G. 4B1.2(a), and the challenged prior
conviction qualified under the “force” clause.
United States v. King, 2016 U.S. Dist. LEXIS 108799
(W.D. Pa. Aug. 17, 2016), has been vacated. United States
v. King, 2016 U.S. Dist. LEXIS 166081 (W.D. Pa. Sept.
 Within this Circuit, it has been held
that under the categorical approach, Pennsylvania burglary
statute, 18 Pa.C.S.A. § 3502, does not qualify under
ACCA's enumerated offense clause. E.g.,
United States v. Harris, 2016 U.S. Dist. LEXIS
117070, at *26 (M.D. Pa. Aug. 31, 2016). Further, Section
3502 has been held ...