Brascomb v. United States of America (INMATE 3)
MEMORANDUM OPINION AND ORDER: it is ORDERED as follows: (1) The 29 Recommendation of the Magistrate Judge is ADOPTED to the extent that Petitioner's 28 USC § 2255 motion to set aside, vacate, or correct sentence, as amended, is GRANTED; ( 2) Petitioner's resentencing will be set by a separate order in his criminal case; and (3) Petitioner's motion for a ruling on the pending motions for resentencing (Doc. # 9 ) is DENIED as moot. Signed by Chief Judge William Keith Watkins on 11/18/2015. (Attachments: # 1 Civil Appeals Checklist) (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
RAY JERCONIE BRASCOMB,
UNITED STATES OF
CASE NO. 1:14-CV-1188-WKW
MEMORANDUM OPINION AND ORDER
On July 14, 2015, the Magistrate Judge filed a Recommendation to which no
objections have been filed. (Doc. # 29.) Upon an independent review of the file in
this case and upon consideration of the Recommendation and the applicable law,
the court finds that the Recommendation is due to be adopted to the extent that
Petitioner’s 28 U.S.C. § 2255 petition, as amended, will be granted and a
resentencing hearing will be set.
On September 13, 2007, Petitioner was sentenced based upon his guilty plea
to a charge of being a convicted felon in possession of a firearm in violation of
18 U.S.C. § 922(g)(1). The sentencing court sentenced Petitioner under the Armed
Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), based upon a finding that
Petitioner had three predicate convictions that qualified as violent felonies.
Petitioner did not appeal his sentence.
Nearly six years later, on August 16, 2013, Petitioner initiated this action by
filing a pro se motion for a sentence reduction, which was converted to a 28 U.S.C.
§ 2255 motion with Petitioner’s consent. He argues that, pursuant to the United
States Supreme Court’s decision in Descamps v. United States, 133 S. Ct. 2276
(2013), he no longer has three prior convictions that qualify as violent felonies.
The Supreme Court in Descamps held that, when making a determination about
whether a prior conviction under a criminal statute qualifies as a “violent felony”
under the ACCA, a court cannot apply the “modified categorical approach” to the
elements of a criminal statute if that statute includes “non-divisible” elements that
make it broader than the generic crime enumerated in the ACCA. Id. at 2283.
Petitioner did not file his § 2255 motion within one year of the date on
which his conviction became final; hence, the § 2255 motion falls outside the oneyear statute of limitations established by § 2255(f)(1). Section 2255(f)(3) extends,
however, the one-year statute of limitations to the date upon which the Supreme
Court has recognized a new right, “if that right has been . . . made retroactively
applicable to cases on collateral review.” § 2255(f)(3). Relying on § 2255(f)(3),
Petitioner contends that his § 2255 motion is timely because it was filed within one
year of the Descamps decision, which he asserts recognized a new right that
applies retroactively to cases on collateral review.1
The Recommendation did not reach the issue of whether Descamps applies
retroactively to cases on collateral review. Instead, it found that the Government
had waived reliance on the statute of limitations imposed on Petitioner’s motion by
§ 2255(f): “Although the Government argues that Descamps is not retroactively
applicable to cases on collateral review and that, ordinarily, [Petitioner’s] claim for
relief would be untimely under 28 U.S.C. § 2255(f), the Government has expressly
waived any timeliness argument in [Petitioner’s] case.” (Doc. # 29, at 7.) The
Contrary to Petitioner’s argument, the overwhelming majority of courts have concluded
that Descamps does not rest on a right recognized and made retroactive by a Supreme Court
decision so as invoke § 2255(f)(3). The Eleventh Circuit has concluded in two recent, albeit
unpublished, decisions that Descamps does not apply retroactively because it does not state a
new rule. See King v. United States, 610 F. App’x 825, 828 (11th Cir. 2015); Abney v. Warden,
No. 15-10088, 2015 WL 4546193, at *4 (11th Cir. July 29, 2015). Every other circuit court that
has considered the retroactivity of Descamps also has determined that Descamps does not
announce a new rule and therefore does not apply retroactively on collateral review. Ezell v.
United States, 778 F.3d 762, 766 (9th Cir. 2015) (“The Supreme Court did not announce a new
rule in Descamps. Descamps did not impose a new obligation nor did it break new ground.”); In
re Jackson, 776 F.3d 292, 296 (5th Cir. 2015) (denying a motion for a successive petition
because “[n]othing in Descamps indicates that its holding announced a new rule that was
constitutionally based, and Descamps did not announce that its holding applied retroactively to
cases on collateral review”); Groves v. United States, 755 F.3d 588, 593 (7th Cir. 2014) (noting
that the Supreme Court “has not made Descamps retroactive on collateral review”).
Additionally, there are a number of district courts in this circuit that have decided that Descamps
does not announce a new rule and, therefore, does not apply retroactively to cases on collateral
review. See Adams v. United States, No. 14-00131, 2014 WL 4685522, at *1 (S.D. Ala. Sept.
19, 2014) (finding that “Descamps does not apply retroactively on collateral review” because it
does not meet either of the Teague exceptions); Blake v. United States, No. 2:14-CV-253, 2015
WL 5081416, at *3 (M.D. Fla. Aug. 27, 2015) (“The Supreme Court has not declared its decision
in the case to be retroactively applicable on collateral review. Moreover, the undersigned has
found no cases in which Descamps was held to be retroactive on collateral review, although
many cases have held to the contrary.”); United States v. Damayo, No. 1:10-CR-190-1, 2015 WL
4092456, at *4 (N.D. Ga. July 6, 2015) (deciding that Descamps is “not retroactively applicable
on collateral review”).
Recommendation further finds that “the Government concedes that [Petitioner]
does not have enough prior convictions for violent felonies to warrant application
of the ACCA in his case.” (Doc. # 29, at 7.) The Recommendation concludes that
Petitioner’s § 2255 motion should be granted and Petitioner resentenced “without
application of the ACCA and with the benefit of any applicable reduction.” (Doc.
# 29, at 8.) This conclusion rests upon the Government’s “express waiver of any
timeliness argument” under § 2255(f), “its further concessions regarding
[Petitioner’s] prior convictions, and its statement that it does not object to
[Petitioner’s] request for resentencing.” (Doc. # 29, at 8.)
“[D]istrict courts are permitted, but not obligated, to consider, sua sponte,
the timeliness of a state prisoner’s habeas petition.” Day v. McDonough, 547 U.S.
198, 209 (2006). But “[a] court is not at liberty . . . to bypass, override, or excuse a
State’s deliberate waiver of a limitations defense.” Wood v. Milyard, 132 S. Ct.
1826, 1830 (2012) (citing Day, 547 U.S. at 202). Wood establishes that a court is
precluded from considering the timeliness of a habeas petition in the face of the
government’s waiver of the affirmative defense of the statute of limitations. In
other words, the court abuses it discretion if it disregards the waiver and dismisses
the petition as untimely. See id. at 1834; see also Gay v. United States, 816 F.2d
614, 616 n.1 (11th Cir. 1987) (“[T]he principles developed in habeas cases also
apply to § 2255 motions.”).
Moreover, in Day, the Supreme Court placed the statute-of-limitations
defense in the same category as other affirmative defenses, including nonretroactivity, for purposes of recognizing that the defenses are non-jurisdictional.
547 U.S. at 205; see also id. at 208 (observing that the “statute of limitations is
explicitly aligned with [non-retroactivity and] other defenses under the current
version of Habeas Rule 5(b)”). Because Day procedurally aligned the affirmative
defenses of non-retroactivity and the statute of limitations, one court has concluded
that “Day stands for the proposition that a deliberate waiver of the defense of nonretroactivity is equally binding on this court.” United States v. Miller, No. 6:137324, 2014 WL 4693689, at *6 (E.D. Ky. Aug. 28, 2014) (finding that the
government’s waiver of the defenses of statute of limitations and non-retroactivity
were binding on the court); see also United States v. Imm, No. 2:03-CR-63, 2014
WL 6774072, at *2 (W.D. Pa. Dec. 1, 2014) (honoring the government’s
affirmative waiver of “any argument that Descamps is not retroactive” and
“assum[ing] that Descamps recognized a new right that applies retroactively and
that it restarted the limitations period, such that [the petitioner’s] motion [was]
timely under 28 U.S.C. § 2255(f)(3)”); United States v. Morrison, No. 1:08cr24015, 2013 WL 3517333, at *2 n.3 (W.D. Va. July 11, 2013) (finding that
§ 2255(f)(3) did “not apply, in light of the government’s waiver”); but see United
States v. Wilson, No. 14-797, 2015 WL 4489926, at *6 (W.D. Pa. July 23, 2015)
(concluding that a government waiver of a defense that Descamps is not retroactive
did not preclude the court from considering whether Descamps newly recognized a
Based upon the interplay under § 2255(f)(3) between the statute of
limitations and the issue of retroactivity, Day and Wood support the conclusion that
a government’s waiver of the limitations defense under § 2255(f)(3) removes, not
only the issue of timeliness from the court’s consideration, but also the issue of
whether a Supreme Court’s decision applies retroactively.2
Wood defined “waiver” as “the intentional relinquishment or abandonment
of a known right.” Wood, 132 S. Ct. at 1835 (citation and internal quotation marks
The Supreme Court held that “the State’s conduct . . . fit[ ] that
description.” Id. The State “was well aware of” the statute of limitations defense
and believed the defense to be viable, but yet informed the district court twice that,
although “not conceding” the issue, it “w[ould] not challenge” the timeliness of the
petition. Id. at 1834 (internal quotation marks omitted). The Court found a waiver
because, “[i]n short, the State knew it had an ‘arguable’ statute of limitations
defense, yet it chose, in no uncertain terms to refrain from interposing a timeliness
Whether the non-retroactivity defense is subject to waiver has not been clear in this
circuit. See, e.g., Clisby v. Jones, 960 F.2d 925, 929 n.6 (11th Cir. 1992) (declining to decide
whether the state can waive Teague retroactivity, but noting that the issue is “much contested”
‘challenge’ to [the petitioner’s] petition.” Id. at 1835. Although in Wood the
government expressly indicated to the court that it would not argue that the petition
was time barred, Wood’s definition of “waiver” does not require such an express
statement as the only avenue to finding a waiver.3
The Government has made three representations and one omission that are
pertinent to the issue of waiver. First, on September 4, 2013, the Government
indicated that, “[b]ased on the Descamps case and guidance issued to the U.S.
Attorney’s Office from the Department of Justice regarding the Descamps case, the
government does not object to a review of the defendant’s case . . . .” (Doc. # 4,
Second, however, more than a year later on November 17, 2014, the
Government changed course. Responding to the court’s order to address whether
Descamps applies retroactively to Petitioner’s § 2255 motion and whether the
§ 2255 motion is timely, the Government represented that, “if a meritorious claim
for relief under Descamps was made by [Petitioner],” then “the government would
waive its right to assert a statute of limitation[s] defense.”4 (Doc. # 15, at 7.) But it
Wood noted the distinction between a waived defense and a forfeited defense. It
explained that a waived defense “is one that a party has knowingly and intelligently
relinquished” as compared to a forfeited defense, which “is one that a party has merely failed to
preserve.” Wood, 132 S. Ct. at 1832. The Wood decision was based on a waiver, not a
forfeiture, of a defense.
The Government noted that, “[p]ursuant to Department of Justice policy, if an inmate
could not qualify as an armed career criminal because the predicate convictions used to establish
that status were not violent felonies under Descamps, the government is to waive any timeliness
argument under 28 U.S.C. § 2255(f)(1) and (3).” (Doc. # 15, at 7); see also Parker v. Walton,
concluded, “after a review of [Petitioner’s] case and prior convictions, . . . that
[Petitioner] still qualifies as an armed career criminal,” and, thus, the Government
“assert[ed] the statute of limitations as a bar to [Petitioner’s] claim for relief.”
(Doc. # 15, at 7.) Third, on March 20, 2015, in response to Petitioner’s amended
§ 2255 motion, the Government reverted back to its original position: “Given
petitioner’s arguments made in the district court, extensive review of guidance
from the Department of Justice, repeated efforts to acquire necessary documents
and conversations with the office’s Appellate Chief, the United States does not
object to petitioner’s request to be resentenced.” (Doc. # 28, at 2 (internal footnote
Fourth, as to the Government’s omission, the Recommendation
expressly provided a time period for interposing objections, but the Government
did not file an objection to the Recommendation’s findings that it had “expressly
waived any timeliness argument under 28 U.S.C. § 2255(f).” (Doc. # 29, at 4, 8.)
Here, ironically, the Government’s only express mention of the statute-oflimitations was in November 2014 in conjunction with its initial reliance on this
Nonetheless, the court finds that the Government’s
subsequent conduct amounts to an abandonment of its reliance on the statute-oflimitations defense, including any reliance on an argument pertaining to the nonNo. 13-CV-1110, 2014 WL 1242401, at *2 (S.D. Ill. Mar. 26, 2014) (noting that the government,
when ordered to address the retroactivity of Descamps, stated that the Department of Justice “has
issued a nation-wide directive instructing federal prosecutors to refrain from asserting that
Descamps is not retroactive on collateral review”).
retroactivity of Descamps, and otherwise satisfies Wood’s definition of a waiver.
Id. Aware that the court wanted to know its position on the issues of the § 2255
motion’s timeliness and Descamps’ retroactivity, the Government affirmatively
represented in March 2015 that it did not oppose the court’s conducting a
resentencing hearing. It necessarily follows that, by that point, with no objection
from the Government for a merits determination, the Government no longer was
relying upon the statute of limitations defense under § 2255(f) or a defense that
Descamps is not retroactively applicable to Petitioner’s § 2255 motion.
Government later confirmed its relinquishment of these defenses when it did not
object to the Recommendation’s findings of a waiver.
On this record, it is
Recommendation’s findings represented a deliberate and tactical decision to forego
timeliness and non-retroactivity defenses.
Based upon the Government’s stated non-opposition to a resentencing
hearing and its failure to file any objections to the Recommendation’s findings, the
court finds that the Government intentionally chose to relinquish reliance on
§ 2255(f)’s time barriers, including (f)(1) and (f)(3), and on a non-retroactivity
defense. The court is obliged to honor that waiver.5 Accordingly, given the
Government’s waiver, no finding is made with respect to the timeliness of the
A clear and straightforward waiver would have simplified the analysis.
§ 2255 petition or the retroactivity of Descamps. Instead, the court will proceed as
if the § 2255 motion is timely and as if Descamps applies retroactively to the
calculation of Petitioner’s sentence. As to the Recommendation’s finding of the
Government’s waiver, the Recommendation is due to be adopted.
reserves judgment, however, on the grounds for resentencing—in particular,
whether Petitioner has three qualifying felonies under the ACCA—until the
resentencing hearing itself.
Accordingly, it is ORDERED as follows:
The Recommendation of the Magistrate Judge (Doc. # 29) is
ADOPTED to the extent that Petitioner’s 28 U.S.C. § 2255 motion to set aside,
vacate, or correct sentence, as amended, is GRANTED;
Petitioner’s resentencing will be set by a separate order in his criminal
Petitioner’s motion for a ruling on the pending motions for
resentencing (Doc. # 9) is DENIED as moot.
DONE this 18th day of November, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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