Green v. USA

Filing 32

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Petitioner David L. Gree's motion to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. §2255 is DENIED. IT IS FURTHER ORDERED that a certificate of appealability shall not be issued. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on September 30, 2019. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID L. GREEN,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:16-cv-00946-AGF

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner David L. Green’s motion filed under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, based on Johnson v. United
States, 135 S. Ct. 2551 (2015). Johnson held that the residual clause of the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e), is unconstitutionally vague. 1 The
government opposes Petitioner’s motion and argues that Johnson does not affect
Petitioner’s sentence because Petitioner’s prior convictions do not fall under the ACCA’s
residual clause. The Court agrees and will therefore deny Petitioner’s motion.

1

The ACCA imposes an increased prison term upon a criminal defendant convicted
of being a felon in possession of a firearm, if that defendant has had three or more
previous convictions for a “violent felony,” a term defined to include any felony that
“involves conduct that presents a serious potential risk of physical injury to another.” 18
U.S.C. § 924(e)(2)(B)(ii). This catch-all part of the definition of a violent felony has
come to be known as the ACCA’s “residual clause.”

BACKGROUND
On June 28, 2013, Petitioner entered into a guilty plea under Federal Rule of
Criminal Procedure 11(c)(1)(A), in which he pled guilty to being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1) and § 924(e). Thereafter, the United
States Probation Office issued a presentence investigation report (“PSR”), which stated
that Petitioner had the following prior felony convictions for offenses qualifying as
violent felonies under the ACCA: (1) three separate convictions for residential burglary,
in violation of 720 ILCS § 5/19-3; (2) three separate convictions for aggravated battery,
in violation of 720 ILCS 5/12-4(b)(1); and (3) one conviction for aggravated robbery, in
violation of 720 ILCS 5/18-5(a). Petitioner filed a statement that he did not object to the
PSR.
On February 20, 2014, the Court adopted the PSR, granted the government’s
motion for a downward departure, and sentenced Petitioner to 110 months in prison.
Petitioner did not appeal his conviction or sentence.
Petitioner now moves to vacate, set aside, or correct his sentence, arguing that, in
light of Johnson, his prior convictions 2 no longer qualify as predicate offenses under the
ACCA. The government responds that Petitioner is barred from appealing his sentence
pursuant to the terms of his plea agreement. The government also contends that all of the
prior convictions remain violent felonies under different clauses of the ACCA, including

2

Petitioner does not specify which of his prior convictions no longer qualify as
predicate offenses under Johnson.
2

the “enumerated offenses clause” and “elements clause”—which were unaffected by
Johnson. 3
DISCUSSION 4
In order to prevail on a § 2255 motion involving an ACCA conviction, “the
movant carries the burden of showing that the Government did not prove by a
preponderance of the evidence that his conviction fell under the ACCA.” Givens v.
United States, No. 4:16-CV-1143 CAS, 2016 WL 7242162, at *2 (E.D. Mo. Dec. 15,
2016) (citations omitted).
As noted above, the ACCA increases the prison term for a person convicted of
being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), to a minimum

3

The government also argues that Petitioner’s § 2255 motion was not filed within
the one-year limitation period set forth in § 2255(f). The government acknowledges that
if Petitioner’s motion asserts a claim based on Johnson, it would be timely under
§ 2255(f)(3), permitting motions to be filed within one year of “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.” However, the government argues that Petitioner’s motion is not truly based on
Johnson, but is instead based on another Supreme Court decision, Descamps v. United
States, 133 S. Ct. 2276 (2013), which did not recognize a new right.
Courts within this District have uniformly rejected this argument. See Redd v.
United States, No. 4:16-CV-1665 CAS, 2017 WL 633850, at *3 (E.D. Mo. Feb. 16,
2017) (collecting cases). Rather than addressing the timeliness argument in detail, the
Court will proceed to address the merits of Petitioner’s claims. See English v. United
States, 840 F.3d 957, 958 (8th Cir. 2016) (holding that § 2255’s one-year limitations
period is not jurisdictional); Trussell v. Bowersox, 447 F.3d 588, 590 (8th Cir. 2006)
(holding that a court may disregard a non-jurisdictional statute of limitations issue in the
interest of judicial economy).
4

Although the Court notes that Petitioner signed a plea agreement waiving his right
to bring this type of § 2255 motion, the Court will nevertheless address the merits of
Petitioner’s claims.
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of 15 years in prison if the person has had three or more previous convictions for a
“violent felony.” 18 U.S.C. § 924(e)(1). The ACCA defines “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year . . .
that—
(i)

has as an element the use, attempted use, or threatened use of
physical force against the person of another; or

(ii)

is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential risk of
physical injury to another[.]

18 U.S.C. § 924(e)(2)(B) (emphasis added).
The italicized language is the “residual clause” invalidated by Johnson, in a rule
that applies retroactively to cases on collateral review. Welch v. United States, 136 S. Ct.
1257, 1268 (2016). But the remaining clauses, including subsection (i) (the “elements
clause”) and the first part of subsection (ii) (the “enumerated offenses clause”) are still
effective. Johnson, 135 S. Ct. at 2563 (“Today’s decision does not call into question
application of the [ACCA] to the four enumerated offenses, or the remainder of the
[ACCA’s] definition of a violent felony.”).
Here, the Court concludes that Petitioner’s prior convictions of aggravated battery
qualify him as an armed career criminal. Specifically, aggravated battery under Illinois
law contains an element of use, attempted use, or threatened use of physical force against
another, such that it falls under the elements clause of the ACCA.
Under Illinois law, “A person who, in committing a battery, intentionally or
knowingly causes great bodily harm, or permanent disability or disfigurement
commits aggravated battery.” 720 ILCS 5/12-4 (West 1994). Thus, to be guilty of
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aggravated battery, Petitioner must have necessarily committed a simple battery. Simple
battery in Illinois is a divisible statute with varying levels of offense conduct. United
States v. Roman, 917 F.3d 1043, 1046 (8th Cir. 2019) (citing United States v. Lynn, 851
F.3d 786, 797 (7th Cir. 2017), which concluded that because there is more than one way
of committing simple battery, the statute is divisible). A conviction under the first prong
of the Illinois battery statute, 5 which requires that the person ‘causes bodily harm,’ has as
an element ‘the use, attempted use, or threatened use of physical force.’” Lynn, 851 F.3d
at 797.
Looking to the underlying court documents, as appropriate when considering a
divisible statute like this, see Mathis v. United States, 136 S. Ct. 2243 (2016), it appears
that Petitioner was involved in three separate altercations resulting in three separate
convictions: one in which he struck a victim with a baseball bat and pool cue, another in
which he struck a victim in the jaw with his hands and kicked the victim while the victim
was on the ground, and a third in which he bludgeoned a victim with an iron barbell. See
PSR, ECF No. 73, United States v. Green, 4:13-cr-00134-AGF (E.D. Mo.).
In all three underlying criminal court proceedings, Petitioner was convicted of
aggravated battery under Illinois law, which included the element of “causing bodily
harm.” Accordingly, it appears that Petitioner’s convictions satisfy the elements clause
of the ACCA. See United States v. Roman, 917 F.3d 1043 (8th Cir. 2019) (holding that
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“A person commits battery if he intentionally or knowingly without legal
justification and by any means, (1) causes bodily harm to an individual or (2) makes
physical contact of an insulting or provoking nature with an individual.” 720 ILCS 5/123 (West 1994).
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the defendant’s conviction of aggravated battery under Illinois law constituted crime of
violence for purposes of classification as career offender); Coleman v. United States, No.
1:16CV00121 SNLJ, 2016 WL 5390933, at *5 (E.D. Mo. Sept. 27, 2016) (“This Court
finds that Illinois Aggravated Battery is an elements clause violent felony as defined
by 18 U.S.C. § 924(e)(2)(B)(i).”).
Petitioner’s three prior aggravated battery convictions constitute violent felony
offenses and permitted the Court classify Petitioner as an armed career offender under the
enumerated clause of the ACCA. Accordingly, Petitioner’s motion will be denied. 6
CONCLUSION
The Court concludes that Petitioner is not entitled to relief. Further, the Court
does not believe that reasonable jurists might find the Court’s assessment of the
procedural or substantive issues presented in this case debatable or wrong, for purposes
of issuing a Certificate of Appealability under 28 U.S.C. § 2253(c)(2). See Buck v.
Davis, 137 S. Ct. 759, 773 (2017) (standard for issuing a Certificate of Appealability).
Accordingly,
IT IS HEREBY ORDERED that Petitioner David L. Green’s motion to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. §2255 is DENIED. ECF No. 1.

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Petitioner claims that none of his prior convictions qualify as violent felonies
under the enumerated clause of the ACCA. The Court need not address his claims related
to his residential burglary and aggravated robbery charges because Petitioner’s three
aggravated battery convictions constitute the requisite predicate convictions to qualify
him as an armed career offender. However, the residential burglary convictions also
qualify under the enumerated clause, see Dawkins v. United States, 809 F.3d 953, 955
(7th Cir. 2016), and the aggravated robbery conviction qualifies under the elements
clause, see United States v. Chagoya-Morales, 859 F.3d 411, 421 (7th Cir. 2017).
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IT IS FURTHER ORDERED that a certificate of appealability shall not be
issued.
A separate Judgment shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 30th day of September, 2019.

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