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United States v. Jones

United States District Court, W.D. Pennsylvania

May 11, 2017

UNITED STATES OF AMERICA,
v.
ANTHONY JEROME JONES

          OPINION AND ORDER

          Donetta W. Ambrose Senior Judge, U.S. District Court

         SYNOPSIS

         In this 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).[1] 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the Court is Defendant's Amended Motion to Vacate pursuant to 28 U.S.C. § 2255, arguing that his ACCA sentence is no longer valid.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 proceedings.

         OPINION

         I. APPLICABLE STANDARDS

         Relief 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.

         II. DEFENDANT'S MOTION

         A. Timeliness

         The 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 claim.

         B. ACCA

         Defendant 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.

         An ACCA 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).

         I will 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)).

         Defendant's third potential conviction, however, presents a more difficult question. The parties agree that Defendant was convicted under New York Penal ...


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