Tompkins v. Feather
Filing
19
OPINION AND ORDER. Petitioner's request for the appointment of counsel in the conclusion of his Reply brief 18 is denied. For the reasons identified above, the Petition for Writ of Habeas Corpus 2 is DENIED. The court declines to is sue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.§ 2253 (c) (2). IT IS SO ORDERED. Signed on 10/20/2014 by Judge Marco A. Hernandez. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DAN C. TOMPKINS,
Case No. 3:14-cv-00465-HZ
Petitioner,
v.
MARION FEATHER,
OPINION AND ORDER
Respondent.
Dan C. Tompkins, 70424-065
FCI Sheridan
P.O. Box 5000
Sheridan, OR 97378
Petitioner, Pro Se
S. Amanda Marshall
United States Attorney
Douglas W. Fong, Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902
Attorneys for Respondent
1 - OPINION AND ORDER
HERNANDEZ, District Judge.
Petitioner brings
U.S.C.
§
2241
this
habeas
corpus
case pursuant
to
28
challenging the legality of his 2009 sentencing
enhancement under the Armed Career Criminal Act ("ACCA").
For the
reasons that follow, the Petition for Writ of Habeas Corpus (#2) is
denied.
BACKGROUND
On November 2, 2007, the Government charged petitioner with
The Indictment also
being a felon in possession of a firearm.
alleged that petitioner had at least three qualifying felonies
under the ACCA such that he faced a mandatory minimum 15-year
sentence.
Following a two-day trial, a jury found petitioner guilty of
being a
felon
in possession of
a
firearm.
He
proceeded to
sentencing where the parties argued as to whether his criminal
history included three prior violent felonies so as to qualify him
for a
sentencing enhancement under the ACCA.
The trial
judge
determined that petitioner had five predicate offenses under the
ACCA,
including two second-degree burglary convictions from the
State of Oklahoma that occurred in 1984.
As a result, the court
sentenced petitioner to 15 years in prison.
Petitioner took a direct appeal where he claimed that he did
not have enough qualifying convictions to justify his 15-year ACCA
sentence,
but
the
Ninth
2 - OPINION AND ORDER
Circuit
disagreed
and
specifically
concluded that
the
two second-degree burglary convictions
from
Oklahoma constituted generic burglaries sufficient to support the
15-year ACCA sentence. 1
67
(9 ~
United States v.
Tompkins,
365 Fed.Appx.
Cir.), cert. denied, 130 S.Ct. 3435 (2010).
Petitioner next filed a 28 U.S.C.
§
2255 motion seeking to
vacate his sentence on the basis that his criminal history did not
justify his 15-year sentence under the ACCA.
denied the
§
The District Court
2255 motion on the basis that the Ninth Circuit had
affirmed its finding that he was an armed career criminal, and the
Ninth Circuit declined to issue a certificate of appealability.
On March 20,
2 014,
petitioner filed this 28 U.S. C.
§
2241
habeas corpus action asserting that sentence is unlawful because
his
1984
burglary convictions
from Oklahoma do
predicate offenses under the ACCA.
not
constitute
He claims that pursuant to the
Supreme Court's recent decision in Descamps v. United States, 133
S.Ct.
2276
(2013),
the trial judge overreached his authority by
taking extra-statutory documents into consideration and applying
the modified categorical approach to the Oklahoma burglary statute
which is overbroad, and not a divisible statute, and therefore not
subject to the modified categorical approach.
Respondent argues
this case only on its merits, waiving any procedural argument as to
Petitioner did not dispute that his 2003 conviction for
Delivery of a Controlled Substance constituted a predicate
offense for purposes of the ACCA.
3 - OPINION AND ORDER
whether petitioner's
§
2241
§
Petition
constitutes
a
successive
2255 motion without Circuit permission.
DISCUSSION
The ACCA provides for a 15 - year mandatory minimum sentence
for certain defendants who have three or more prior convictions for
a violent felony such as burglary, arson, or extortion.
§
924 (e) .
In
order
to
determine
whether
a
prior
18 U.S.C.
conviction
constitutes a qualifying offense for the sentencing enhancement, a
trial court can use the
"categorical approach"
to
elements
forming
the
of
the
statute
the
conviction with the elements of the
offense as commonly understood."
basis
of
'generic'
"compare the
defendant's
crime--i.e.,
Descamps, 133. S. Ct. at 2281.
the
In
this way, under the categorical approach, courts are restricted to
reviewing only the elements of the crime without looking to any
documents from the defendant's case.
Where a defendant has been convicted of a criminal statute
that sets forth alternative pathways to culpability where not all
of those pathways match the generic version of the crime,
the
statute is termed "divisible" and courts may use something called
the "modified categorical approach" to determine if the particulars
of
the
defendant's
crime
purposes of the ACCA.
Id.
constitute
a
predicate
In such an instance,
offense
for
"the modified
categorical approach permits sentencing courts to consult a limited
class of documents, such as indictments and jury instructions, to
4 - OPINION AND ORDER
determine which alternative formed the basis of the defendant's
prior conviction."
Id.
A court is not,
however,
permitted to
review such additional documentation when a defendant is convicted
under an indivisible statute that "criminalizes a broader swath of
conduct than the relevant generic offense."
Id.
The issue this case presents is whether the District Court
properly
applied
the
"modified
categorical
approach"
to
petitioner's second-degree burglary convictions from Oklahoma so as
to enhance his sentence.
this
very
question,
categorical
The Ninth Circuit previously ruled on
determining
approach
that
"[u]nder
Tompkins's
the
convictions
modified
qualify
as
violent felonies.
The Information, a charging document, alleged
each
generic
element
'unlawfully'
of
entered with
burglary
by
'burglarious
stating
intent'
that
Tompkins
into a
'certain
building' located at a specific address and owned by a particular
business."
that
Tompkins, 365 Fed.Appx. at 69.
Petitioner's assertion
the Ninth Circuit misapplied existing precedent
does
not
entitle him to relief in this court.
Petitioner also argues that because he pleaded guilty and
waived his right to a jury trial as to the second-degree burglary
convictions,
dates
the
the Supreme Court's Descamps decision
Ninth
Circuit's
analysis
of
the
(which post-
statute
at
issue)
precludes application of the modified categorical approach to those
prior convictions.
But Descamps only precludes use of the modified
5 - OPINION AND ORDER
categorical approach in the context of indivisible statutes that
are either overbroad or missing an element of the generic offense.
Descamps,
133 S.Ct. at 2292.
By contrast,
the Oklahoma second-
degree burglary statute is plainly divisible:
Every person who breaks and enters any building or any
part of any building, room, booth, tent, railroad car,
automobile, truck, trailer, vessel, or other structure or
erection, in which property is kept, or breaks into or
forcibly opens, any coin operated or vending machine or
device with intent to steal any property therein or to
commit any felony, is guilty of burglary in the second
degree.
21 Okl. St.
§
1435.
Where the Oklahoma statute was divisible, use of the modified
categorical approach was proper.
As the State narrowly tailored
its Information such that the charged conduct mirrored the generic
definition of burglary,
petitioner did not
plead guilty to an
offense that was different than that contemplated by the generic
definition of burglary.
See Government
Sentencing Exhibit 2-1
(Oklahoma Information charging petitioner with limited portions of
the second-degree burglary statute) .
Accordingly, relief on the
Petition is denied.
CONCLUSION
Petitioner's request for the appointment of counsel in the
conclusion of his Reply brief
(#18)
is denied.
For the reasons
identified above, the Petition for Writ of Habeas Corpus (#2)
DENIED.
is
The court declines to issue a Certificate of Appealability
on the basis that petitioner has not made a substantial showing of
6 - OPINION AND ORDER
the
§
denial
of
a
constitutional
right
pursuant
2253 (c) (2).
IT IS SO ORDERED.
DATED this
1JJ
day of October, 2014.
7 - OPINION AND ORDER
to
28
U.S.C.
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