United States District Court, W.D. Pennsylvania
OPINION AND ORDER
Donetta W. Ambrose Senior Judge, U.S. District Court
action, Defendant pleaded guilty to a single count of
possession of a firearm by a convicted felon, in violation of
18 U.S.C. 922(g)(1). On February 12, 2010, he was sentenced
to a term of imprisonment of 211 months, followed by a term
of supervised release. His sentence was based, 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arguing that his ACCA sentence is no longer valid. For the
following reasons, Defendant's Motion will be granted,
and this matter transferred to Judge Cercone for further
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 amended Motion
will be disposed of on the record.
Government first challenges the timeliness of Defendant's
Motion. In so doing, the Government asserts that
Defendant's Motion does not actually rely on Johnson
v. United States, __ U.S. __, 135 S.Ct. 2551, 192
L.Ed.2d 569 (2015) (“Johnson II”)
because his predicate crimes implicated the so-called
“force” or “elements” clause of
Section 924(e), rather than merely the residual clause
invalidated in Johnson II. Thus, it argues, his
claim actually and impermissibly relies on Johnson v.
United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d
1 (2010) (“Johnson I”). The
Government's timeliness argument, in essence, would place
the burden on Defendant to demonstrate that his sentence
actually rested on the residual clause. This Court has
rejected such a burden allocation. See, e.g.,
United States v. Wilson, No. 12-09, 2017 U.S. Dist.
LEXIS 42175, at **3-4 (W.D. Pa. Mar. 23, 2017). Moreover,
Defendant raises a valid Johnson II claim, as he
contends that his convictions are not valid predicates
because the residual clause is no longer an option; he raises
Johnson I to demonstrate that they also fail to
fulfill ACCA's force clause. Cf., e.g.,
Thrower v. United States, No. 4-903, 2017 U.S. Dist.
LEXIS 45776, at **15-18 (E.D.N.Y. Feb. 13, 2017). Therefore,
Defendant's Motion timely raises a Johnson II
argues that his sentence exceeds the ten-year statutory
maximum for his Section 922(g) conviction, and also that his
three prior convictions for attempted robbery, robbery, and
second-degree assault, all under New York law, no longer
qualify as predicate offenses. In response, the Government
argues that Defendant's convictions did not involve the
now-invalid residual clause, but instead the
“force” provision of 924(e)(2)(B)(i). The
Government submits three prior convictions to support its
position: those for first-degree robbery, under New York
Penal Law § 160.15(4); second-degree assault, under New
York Penal Law § 120.05(2); and attempted robbery, under
New York Penal Law §§ 160.15(2) and 110.00. For
present purposes, I will assume that the Government has
established the fact of all three prior convictions.
sentence must be based on three convictions for "violent
felonies, " the definition of which includes a crime
that "has as an element the use, attempted use, or
threatened use of physical force against the person of
another." 18 U.S.C. § 924(e)(2)(B)(i). It is not
enough, however, that force be an element of the crime;
instead, in this context, "'physical force'
means violent force - that is, force capable of causing
physical pain or injury to another person." Johnson
I, 559 U.S. at 140. “Therefore, a crime that
requires less-than "violent" …cannot qualify
as a violent felony under the ACCA.” United States v.
Johnson, No. 15-32, 2016 U.S. Dist. LEXIS 156841, at *13
(E.D.N.Y. Nov. 12, 2016) (quoting Johnson I, 559
U.S. at 140).
assume that Defendant's convictions under Sections
120.05(2) and 160.15(4) both qualify as violent felonies
under this clause. See Morris v. Holder, 676 F.3d
309 (2d Cir. 2012) (quoting United States v. Walker,
442 F.3d 787, 788 (2d Cir. 2006)) (§ 120.05(2));
United States v. Mariano, 636 F. App'x
532, 542 (11th Cir. 2016) (same); Stuckey v. United
States, 2016 U.S. Dist. LEXIS 166291, at **15-16
(S.D.N.Y. Dec. 1, 2016) (§ 160.15(4)).
third potential conviction, however, presents a more
difficult question. The parties agree that Defendant was
convicted under New York Penal ...