Wallace v. USA
OPINION MEMORANDUM AND ORDER IT IS HEREBY ORDERED that this action is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. An Order of Dismissal will be filed separately. Signed by District Judge Henry Edward Autrey on 3/1/17. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JAMES E. WALLACE,
UNITED STATES OF AMERICA,
Case No. 4:16CV985 HEA
OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion to Vacate, Set Aside or
Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255, wherein he asserts
Johnson v. United States, 135 S. Ct. 2551 (2015) is applicable. The United States
of America has responded to the motion. For the reasons set forth below the
Motion will be denied.
Facts and Background
On February 22, 2013, Petitioner entered a plea of guilty to being a felon in
possession of a firearm, in violation of 18 U.S.C. § 922(g)(1) and §924(a)(2) in Case No.
4:12CR00409 HEA. By virtue of the plea agreement he waived “all rights to contest the
conviction or sentence in any post-conviction proceeding, including one pursuant to Title
28, United States Code, Section 2255, except for claims of prosecutorial misconduct or
ineffective assistance of counsel.” [Doc.25]
A Presentence Investigation Report was prepared which found Petitioner to have
the following Missouri prior convictions for (1)
Burglary Second Degree under
Docket No.: CR181-118F: On or about July 31, 1981, in Audrain County, Missouri, the
defendant, acting together, with Gary Dean Bise, knowingly entered unlawfully in a
building located at 400 West Love Street in the City of Mexico, Missouri, possessed by
W.B., for the purpose of committing the crime of stealing therein; (2) Burglary First
Degree, under Docket No.: CR183-50F: On or about June 16, 1983, in Audrain County,
Missouri, the defendant knowingly entered unlawfully in a building located at Missouri
22 Highway west of Mexico approximately one to one and one-half miles, possessed by
R.A., doing business as Ron's Body Shop, for the purpose of committing the crime of
stealing therein; (3) Burglary Second Degree, under Docket No.: 184-81F: On October
14, 1984, the defendant knowingly entered unlawfully in a building located at U.S.
Highway 54 East in Vandiver Village, possessed by R.G. and P.H., for the purpose of
committing the crime of stealing therein; (4) Burglary Second Degree, under Docket
No.: CR184-85F: According to court records, as to Count 1, on July 17, 1984, the
defendant knowingly entered unlawfully in a building located at U.S. Highway 54 South
just south of Route D, possessed by L.D., doing business as Williamsburg Radiator, for
the purpose of committing the crime of stealing therein; (5) Unlawful Use of a WeaponExhibiting, under Docket No.41R01000009: On or about May 10, 1999, in Randolph
County, Missouri, the defendant knowingly exhibited, in the presence of one or more
persons, a baseball bat, a weapon readily capable of lethal use, in an angry or threatening
manner; (6) Sale of Marijuana, under Docket No.: 03CR157175-01: On or about
December 27, 2002, in Montgomery County, Missouri, the defendant knowingly sold
more than five grams of marijuana, a controlled substance, to a law enforcement
officer, knowing that it was a controlled substance. He was, therefore, classified as a
Career Criminal and received a sentence of 84 months. Petitioner did not appeal his
conviction or sentence to the Eighth Circuit Court of Appeals.
Petitioner claims that he is entitled to relief under the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2551 (2015). He argues that since the residual
clause of the Armed Career Criminal statute is unconstitutional, Johnson should have
direct impact upon his sentence as an Armed Career Criminal.
He asserts that, under Johnson, his convictions for burglary and unlawful use
of a weapon (exhibiting) no longer qualify as violent felonies under the ACCA and,
therefore, his sentence should be reduced.
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held that
the residual clause in the definition of a “violent felony” in the Armed Career Criminal
Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally vague. The
Supreme Court has since determined that Johnson announced a new substantive rule of
constitutional law that applies retroactively on collateral review in cases involving
ACCA-enhanced sentences. United States v. Welch, 136 S. Ct. 1257 (2016). The Court’s
holding in Welch makes Johnson applicable retroactively in ACCA cases on collateral
No part of Petitioner's sentence was based upon the residual clause. His prior
convictions for burglaries of buildings, sale of a controlled substance and unlawful use of
a weapon/exhibiting are serious drug offenses or violent felonies under the enumerated or
elements/force clauses of the ACCA, all of which are unaffected by Johnson.
The ACCA provides that a defendant who violates 18 U.S.C. § 922(g) and has
three prior convictions for a violent felony or serious drug offense is subject to a fifteenyear mandatory minimum sentence. 18 U.S.C. § 924(e). There are three specific
“clauses” in the statute defining and delineating what type of prior crime qualifies as a
“violent felony.” The ACCA’s three clauses are: (1) the “elements” clause: “has as an
element the use, or attempted use, or threatened use of physical force against the person
of another”; (2) the “enumerated offenses” clause: “is burglary, arson, or extortion, [or]
involves use of explosives”; and (3) the “residual clause”: “or otherwise involves conduct
that presents a serious potential risk of physical injury to another.” 18 U.S.C. §
The Supreme Court concluded in Johnson that imposing an increased sentence
under ACCA’s residual clause, i.e., the provision that defines a “violent felony” to
include an offense that “involves conduct that presents a serious potential risk of physical
injury to another,” violates the Due Process Clause because the residual clause is
impermissibly vague on its face. Johnson, 135 S. Ct. at 2556. The Court found that the
inability of its own cases to develop a “principled and objective standard” demonstrated
the residual clause’s “hopeless indeterminancy.” Id. at 2558. The Court concluded that
“the indeterminancy of the wide-ranging inquiry required by the residual clause both
denies fair notice to defendants and invites arbitrary enforcement by judges.” Id. at 2557.
As such, the Court held that the residual clause is “vague in all its applications.” Id. at
Here, Petitioner was convicted of second degree burglaries under Missouri law in
violation of Mo. Rev. Stat. § 569.170, which occurs when a defendant “knowingly enters
unlawfully or knowing remains unlawfully in a building or inhabitable structure for the
purpose of committing a crime therein.” Recently, in United States v. Sykes, No. 143139, 2016 WL 7383744 (8th Cir. Dec. 21, 2016), the Eighth Circuit addressed whether
Missouri’s second degree burglary statute constitutes a “generic burglary” such that it
falls within the enumerated clause of § 924(e). Sykes unequivocally held that Missouri’s
second-degree burglary of a building conformed to the elements of a generic burglary.
This is critical in the analysis here as the Supreme Court expressly noted in
Johnson the ruling “does not call into question application of the [ACCA] to *** the
remainder of the Act’s definition of a violent felony,” including a felony offense 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), and a felony offense that “is burglary,
arson, or extortion, [or] involves use of explosives,” 18 U.S.C. § 924(e)(2)(B)(ii).”
Johnson, 135 S. Ct. at 2563.
Since Petitioner has three burglary convictions, the Court Will not elucidate on
the issue of whether his Missouri conviction for Unlawful Use of a Weapon – Exhibiting,
in violation of Mo. Rev. Stat. § 570.030.1(4) qualifies as a violent felony under the force
This classification of his Sale of Marijuana offense is unaffected by Johnson's
determination that the residual clause is unconstitutional. It is clearly a serious drug
offense as defined in 18 U.S.C. § 924(e)(2)(A)(ii).
Based upon the foregoing analysis, Movant has failed to establish he is entitled
to a hearing and has failed to present any basis upon which the Court may grant
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
IT IS HEREBY ORDERED that this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
An Order of Dismissal will be filed separately.
Dated this 1st day of March, 2017.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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