Battle v. United States of America (INMATE 3)
MEMORANDUM OPINION. Signed by Chief Judge William Keith Watkins on 7/20/16. (djy, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EARNEST D. BATTLE,
UNITED STATES OF AMERICA,
) CASE NO. 2:16-CV-471-WKW
Petitioner Earnest D. Battle (“Battle”) filed this action pursuant to 28 U.S.C.
§ 2255 seeking to vacate, set aside, or correct his sentence based upon Johnson v.
United States, 135 S. Ct. 2551 (2015).1 Before the court is the Joint Proposal for
Proceeding on 28 U.S.C. § 2255 Motion in which the parties agree that Battle is
entitled to sentencing relief and that he likely is eligible for immediate release. (Doc.
# 8.) Battle has filed an affidavit waiving his right to be present for a resentencing
hearing. (Doc. # 9-1.) Upon careful consideration of the Joint Proposal, the record,
and the governing law, Battle’s motion will be granted, his sentence will be vacated,
and he will be resentenced.
A jury convicted Battle on one count of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1). On January 21, 2009, Battle was
This is Battle’s first motion under § 2255.
sentenced to 180 months’ imprisonment pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based on the court’s adoption of the presentence
investigation report (“PSR”), which indicated that Battle had three prior “violent
felony” convictions within the meaning of § 924(e)(2). Battle has three prior
convictions for third-degree burglary under Alabama law, see Ala. Code § 13A-77(a), which by process of elimination are the three felony convictions that were used
to enhance his sentence under the ACCA.2 The mandatory minimum sentence
prescribed by the ACCA is 180 months. Without application of the ACCA, Battle’s
guidelines range is 21 to 27 months, and he is eligible for immediate release.
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held
that the ACCA’s residual clause is unconstitutionally vague. In Welch v. United
States, 136 S. Ct. 1257 (2016), the Supreme Court held that Johnson announced a
new substantive rule of constitutional law that applies retroactively in cases on
collateral review. Under Johnson and Welch, it is clear that Battle’s third-degree
burglary convictions cannot be used as predicate ACCA offenses under
§ 924(e)(2)(B)’s residual clause.
Thus, unless the convictions satisfy another
definition of “violent felony” under either § 924(e)(2)(B)’s elements clause or
The PSR did not indicate which of Battle’s five prior felony convictions served as the
predicate offenses under the ACCA or under which provision of the ACCA. There were no
objections to the PSR, and it was adopted in its entirety.
enumerated-crimes clause, they cannot be used to enhance Battle’s sentence under
The parties agree that, with the Supreme Court’s striking down of the ACCA’s
residual clause as a basis for a sentencing enhancement, Battle is entitled to relief
under Johnson and Welch because third-degree burglary under Alabama law does
not qualify as an ACCA predicate under either the elements or enumerated-crimes
clauses. That agreement, at least as confined to an initial § 2255 motion such as
Battle’s, finds support in Eleventh Circuit precedent. See Mays v. United States, 817
F.3d 728 (11th Cir. 2016) (per curiam). In Mays, the Eleventh Circuit concluded
that “[t]he elements clause clearly is inapplicable” to third-degree burglary
convictions under § 13A-7-7 of the Alabama Code. Id. at 733 n.5. It also reiterated
its prior holding that under Descamps v. United States, 133 S. Ct. 2276 (2013), “a
conviction for third degree burglary cannot qualify as a violent felony under the
enumerated clause because Alabama Code § 13A-7-7 is an indivisible, non-generic
statute.” Mays, 817 F.3d at 733 (citing United States v. Howard, 742 F.3d 1334
(11th Cir. 2014)).
Importantly, the Mays court held that Descamps applied
retroactively “in the first post-conviction context.” Id. at 730.
Descamps was decided after Battle’s conviction and sentence; however, it
applies retroactively because this is Battle’s first § 2255 motion.
§ 924(e)(2)(B)’s enumerated-crimes clause does not apply to Battle’s Alabama
third-degree burglary convictions, and Battle is not an armed career criminal under
Because Battle no longer has three qualifying felony offenses under the
ACCA, his sentence enhancement under the ACCA is illegal and warrants habeas
relief. Battle’s § 2255 motion is due to be granted, and his sentence is due to be
vacated. Having considered all appropriate 18 U.S.C. § 3553(a) factors, the court
finds that a sentence of time served is a reasonable sentence. Accordingly, Battle’s
term of imprisonment will be reduced to a “time served” sentence.
An appropriate judgment in this action will be entered, and an amended
judgment will be entered in the criminal case to reflect a sentence of time served and
a term of supervised release of three years.
DONE this 20th day of July, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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