James v. United States of America
Filing
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ORDER re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Joseph Hagan James. The Court will hear from the Government within 30 days after the date this Order is served. The Probation Office shall file, under seal, its PSR, PSR Addendum (showing no objection by either party) and Sentencing Recommendation in the record. (Compliance due by 9/30/2016.) Signed by Magistrate Judge G. R. Smith on 8/30/16. (jlm)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
JOSEPH HAGAN JAMES,
Movant,
v.
Case No. CV416-169
CR405-263
UNITED STATES OF AMERICA,
Respondent.
ORDER
Having pled guilty to possession of a firearm by a convicted felon
and sentenced as an armed career criminal under 18 U.S.C. § 924(e) (the
Armed Career Criminal Act, or “ACCA”), (doc. 16 (plea agreement), 1 doc.
17 (judgment) (entered January 18, 2006)), Joseph Hagan James moves
under 28 U.S.C. § 2255 for resentencing without the career criminal
enhancement. Doc. 24 at 14. The Court is preliminarily reviewing his
motion under § 2255 Rule 4(b).
On January 18, 2006, the Court sentenced James to 180 months’
imprisonment and he took no appeal. His conviction thus became final 7
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All citations are to the criminal docket unless otherwise noted and all page
numbers are those imprinted by the Court’s docketing software.
days later, on January 25, 2006. Fed. R. App. P. 4(b)(1)(A)(i) (notices of
appeal in criminal cases had to be filed within 7 days of entry of
judgment -- 14 days after this Rule was changed in 2009);
Adams v.
United States , 173 F.3d 1339, 1343 n. 2 (11th Cir. 1999). Under §
2255(f), James had until January 25, 2007, to file his § 2255 motion. He
signature-filed his § 2255 motion on June 22, 2016, doc. 24 at 13, nearly
a decade too late per § 2255(f)’s one-year statute of limitations.
See
Saunders v. United States , 2016 WL 4007677 at *2 (S.D. Ga. July 26,
2016).
James argues that Johnson v. United States , ___ U.S. ___, 135 S.
Ct. 2551 (2015), voids his ACCA enhancement, and thus restarts the oneyear clock under § 2255(3) (clocks begins to tick from “the date on which
the right asserted was initially recognized by the Supreme Court, if that
right has been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review.”). Doc. 24 at 12, 14.
And Johnson is retroactively applicable. Welch v. United States , 136 S.
Ct. 1257, 1265 (2016) ( Johnson is a new substantive rule and thus
applies retroactively to cases on collateral review).
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That delves the Court into ACCA -- the statute Johnson addressed - which provides enhanced penalties for defendants who are (1) convicted
of being felons in possession of firearms in violation of 18 U.S.C. § 922(g)
and (2) have “three prior convictions . . . for a violent felony or a serious
drug offense, or both.” It defines “violent felony” as, among other
things, a felony that “otherwise involves conduct that presents a serious
potential risk of physical injury to another.”
Id. at § 924(e)(2)(B).
Johnson found that “residual” clause so vague that it violates due
process.
See 135 S. Ct. at 2557. It said nothing about ACCA
enhancements predicated on convictions for “violent felonies” classed as
such under ACCA provisions other than the residual clause. See, e.g. , id.
at 2563 (“Today's decision does not call into question application of the
Act to the four enumerated offenses, or the remainder of the Act's
definition of a violent felony. . . .”). Enhancements based on those
offenses remain valid. See United States v. Tinker , 618 F. App’x 635, 637
(11th Cir. 2015) (convictions that qualify as violent felonies under the
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“elements” clause 2 of the ACCA rather than the “residual” clause survive
Johnson).
The question that thus arises here is, on what basis was James
sentenced? Johnson’s limited reach led the Eleventh Circuit, at least in
the successive § 2255 context, to conclude that “it is not enough for a
federal prisoner to simply identify Johnson and the residual clause as the
basis for the claim or claims he seeks to raise in a second or successive §
2255 motion, but he also must show that he was sentenced under the
residual clause in the ACCA and that he falls within the scope of the new
substantive rule announced in Johnson .” In re Griffin , 823 F.3d 1350,
1354 (11th Cir. 2016) (cites omitted); see also In re Moore , ___ F.3d ___,
2016 WL 4010433 at * 4 (11th Cir. July 27 2016) (“[T]he district court
cannot grant relief in a § 2255 proceeding unless the movant . . . proves
that he was sentenced using the residual clause.”); but see In re Chance ,
F.3d ___, 2016 WL 4123844 at * 4 (11th Cir. Aug. 2, 2016)
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That provision defines “violent felony” to include “any crime punishable by
imprisonment for a term exceeding one year . . . 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).
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(concurrence criticizing that directive as “wrong” and reminding that it
is just “dicta”).
James does not identify a “ Griffin ” basis for his Johnson claim. On
the other hand, this is his first § 2255 motion. Is Griffin’s requirement
properly imposed here? Setting that question aside for the moment,
there is another hurdle that James arguably must overcome: Even if a
prior felony is invalid under the residual clause, what if it nevertheless
can be supported under another, ( e.g. , enumerated crimes) clause? See
Ziglar v. United States , ___ F. Supp. 3d ___, 2016 WL 4257773 at * 6
(M.D. Ala. Aug. 11, 2016) (“In other words, if, at the time of sentencing,
Ziglar's third-degree burglary convictions qualified as violent felonies
under the enumerated-crimes clause (even if they also qualified under
the residual clause), Ziglar does not fall within the scope of the
substantive ruling in Johnson , and that settles the matter for Johnsonresidual clause purposes regardless of whether those convictions would
count were [Ziglar] sentenced today.”) (quotes and alterations omitted)
(citing In re Hires, ___ F.3d at ___, 2016 WL 3342668 at * 5 (11th Cir.
June 15, 2016) and Moore , 2016 WL 4010433 at * 2). The Probation
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Office’s PSR is silent on this, and its Sentencing Recommendation
justified its 180-month recommendation on the fact that “he is an armed
career criminal as defined by 18 U.S.C. § 924(e).” Id. at 1.
The Court will hear from the Government within 30 days after the
date this Order is served. The Probation Office shall file, under seal, its
PSR, PSR Addendum (showing no objection by either party) and
Sentencing Recommendation in the record.
SO ORDERED, this 30th day of August, 2016.
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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