United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior Judge
action, Defendant was convicted of violating 18 U.S.C.
§§ 922(g)(1) and 924(e), and 26 U.S.C. §
5861(d). On January 16, 2013, Defendant was sentenced to a
term of imprisonment of 262 months at Count 1 and 120 months
at Count 2, to run concurrently, followed by a term of
supervised release. Defendant's sentence was based, in
part, on the Armed Career Criminal Act (“ACCA”),
18 U.S.C. § 924(e). Before the Court is Defendant's
Motion pursuant to 28 U.S.C. § 2255, arguing that his
enhanced sentence is invalid. Also pending is the
Government's Motion to Dismiss the Section 2255 Motion as
untimely, and as a prohibited second or successive
petition. For the following reasons, the Motions
filed by both Defendant and the Government will be denied.
prisoner in federal custody may move to vacate his or her
sentence under 28 U.S.C. § 2255(a) if such
"sentence was imposed in violation of the Constitution
or laws of the United States." 28 U.S.C. § 2255(a).
"[R]elief under § 2255 is available only when
'the claimed error of law was a fundamental defect which
inherently results in a complete miscarriage of justice, and
... present[s] exceptional circumstances where the need for
the remedy afforded by the writ ... is apparent.'"
United States v. Travillion, 759 F.3d 281, 288 (3d
Cir. 2014) (quoting Davis v. United States, 417 U.S.
333, 346, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974)). 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 F. App'x 402, 404 (3d Cir.
2004). In this case, an evidentiary hearing is unnecessary,
and the Motion will be disposed of on the record.
the Government contends that Defendant's Motion is a
second or successive petition, prohibited absent appropriate
certification by the Court of Appeals, and is also untimely.
Defendant filed his first Motion to Vacate, pro se,
on January 11, 2013, which was denied without prejudice
because Defendant was represented by counsel at the time. At
that point, Defendant had not yet been sentenced. He filed
another Motion to Vacate, pro se, on July 10, 2015.
In accordance with Miller notice, which tolled the
limitations period for 120 days, Defendant elected to
withdraw the July 10 Motion and file a new one. He then filed
the Motion at bar, which was postmarked December 21, 2015 and
docketed on January 6, 2016. Counsel was appointed on January
15, 2016, and was directed to file a supplemental brief. A
supplemental brief was filed on May 5, 2016. The Government
suggests that Defendant's Motion is untimely because it
arises under Johnson v. United States, 559 U.S. 133,
130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (“Johnson
2010”), rather than Johnson v. United States,
135 S.Ct. 2551, 192 L.Ed.2d 569 (2015)
(“Johnson 2015”). The Motion, however,
is fairly read as raising an argument under Johnson
2015. Under the circumstances, the pending
Motion will neither be deemed a prohibited second or
successive petition, nor untimely.
argument is limited to the contention that his prior
convictions for Pennsylvania robbery, 18 Pa.C.S. § 3701,
no longer support an ACCA sentence, because they could only
have qualified as predicates under the residual clause
invalidated by Johnson v. United States, __ U.S. __,
135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). The Government
responds that Defendant's robbery convictions qualify as
predicate offenses under ACCA's “force” or
“elements” clause, 18 U.S.C. §
924(e)(2)(B)(i), rather than under the now-invalid residual
clause. In this context, the Government bears the
burden of demonstrating that a sentencing enhancement is
valid. E.g., United States v. Sunday, No.
8-393, 2017 U.S. Dist. LEXIS 8264, at *2 (W.D. Pa. Jan. 20,
2017). Contrary to the Government's suggestion, Defendant
does not bear the burden of demonstrating that he was
sentenced under ACCA's residual clause. Id.
prior convictions arose under Pennsylvania's robbery
statute, 18 Pa.C.S. § 3701, which has been held
divisible and subject to a modified categorical approach.
United States v. Blair, 734 F.3d 218, 225 (3d Cir,
2013). "[T]he 'modified categorical approach'
[applicable to a divisible statute] permits a court to
determine which statutory phrase was the basis for the
conviction." Johnson v. United States, 559 U.S.
133, 144, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (citation
case, the parties agree that Defendant's ACCA sentence
rested on prior convictions for violating either 18 Pa.C.S.
§ 3701(a)(1)(i) or (a)(1)(ii), obviating the need for a
full modified categorical analysis and its attendant inquiry
into underlying judicial records if both subsections support
qualifying predicate offenses. Other courts within this
Circuit have found that both subsections do, indeed, qualify
as predicate offenses under ACCA's force clause.
United States v. Harris, No. 6-268, 2016 U.S. Dist.
LEXIS 117070, at *44 (M.D. Pa. Aug. 31, 2016) (citing
United States v. Dobbin, 629 F. App'x 448, 452
(3d Cir. 2015) (nonprecedential)); United States v.
Maldonado, No. 10-288, 2016 U.S. Dist. LEXIS 105356, at
**10, 13-14 (E.D. Pa. Aug. 9, 2016). I am persuaded by this
precedent, and will do likewise. Defendant's Motion must