Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Toyer v. United States

United States District Court, N.D. Alabama, Eastern Division

June 2, 2017

MARK ANTHONY TOYER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          VIRGINIA EMERSON HOPKINS United States District Judge.

         This case is before the Court on the motion filed by Mark Anthony Toyer (“Movant”) on or about June 2, 2016, pursuant to 28 U.S.C. § 2255 to vacate or set aside the sentence he received on May 18, 2007. (Doc. 1; Crim. Doc. 60). The Movant is in federal custody. (Doc. 1). The motion invokes Johnson v. United States, 135 S.Ct. 2551 (2015) as the basis for the relief sought.

         Background

         Movant was indicted on August 30, 2006, on two counts of violating in violation of Title 18, United States Code, Section 922(g)(1): felon in possession of a firearm (Count One) and felon in possession of ammunition (Count Two). On January 31, 2007, he was convicted by a jury of both counts. On May 18, 2007, he was sentenced by the undersigned as to each count to be imprisoned by the Bureau of Prisons for 235 months, separately and concurrently.[1] In the PSR, it is stated that the Movant had been convicted of three “violent felonies” and one “serious drug offense.” The three violent felonies are listed as one conviction for manslaughter (CC- 94-428) and two separate convictions each for second degree assault (CC 97-730 and CC 98-1036). These four convictions were all counted in the PSR and accepted by the Court as qualifying for the Armed Career Criminal Act (“ACCA”) enhancement. The ACCA enhancement requires that anyone who is convicted of violating 18 U.S.C. § 922(g) and who has three previous convictions for a violent felony or a serious drug offense, or both, must be imprisoned for a minimum of 15 years. 18 U.S.C. § 924(e)(1)(providing that a defendant who violates 18 U.S.C. 922(g) and who has at least three prior convictions for a violent felony or serious drug offense is subject to a fifteen-year statutory minimum sentence).

         Movant's direct appeal was denied on the merits on April 23, 2008. United States v. Toyer, 274 F. App'x 844 (11th Cir. 2008) (per curiam) (unpublished). He did not seek a writ of certiorari from the United States Supreme Court.

         On or about November 14, 2008, Movant filed a motion to vacate or set aside sentence pursuant to 28 U.S.C. § 2255 (the “First Petition”). This Court denied the First Petition on November 17, 2009. (See Mark Anthony Toyer v. United States, 1:08-cv-08046-VEH at Docs. 14, 15). Movant's appeal of that denial was dismissed by the Eleventh Circuit Court of Appeals on April 29, 2010, for lack of prosecution. (Id., Doc. 25).

         On or about August 17, 2015, Movant again filed a motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255 (the “Second Petition”) (see Mark Anthony Toyer v. United States, 1:15-CV-8019-VEH). The undersigned dismissed the Second Petition as second or successive “without prejudice to allow [Movant] the opportunity to seek authorization from the Eleventh Circuit to file a second or successive § 2255 motion.” Toyer v. United States, No. 1:06-CR-361-VEH-JEO, 2016 WL 1046241, at *1 (N.D. Ala. Mar. 16, 2016). The Eleventh Circuit Court of Appeals subsequently granted such authorization. (In re: Mark Toyer, No. 16-11431-E; see also Doc. 1 at 14). This motion followed.

         Issues Presented

         Movant has filed the Motion (Doc. 1), a Memorandum of Law (Doc. 2), a Response to Attorney's Motion To Withdraw (Doc. 4)[2], a Motion To Amend (Doc. 6), and a Request for Judicial Notice (Doc. 15).[3] In the Motion, Movant alleges that his sentence was unconstitutionally excessive. Specifically, he argues that his sentence should not have been enhanced under the ACCA because his manslaughter and second degree assault convictions are not proper predicate offenses to support such an enhancement. In his Motion To Amend, he makes further arguments in support of these assertions. In his Request for Judicial Notice, he challenges the sufficiency of the evidence at sentencing and states that the Government had the burden to “prove [that each predicate conviction was] actually violent and that the drugs offenses [sic] were in fact serious drug offenses.” (Doc. 15 at 1).[4], [5]

         The Government argues that the Motion “should be dismissed [as second or successive] because [Movant] was sentenced on the basis of not only the ACCA's residual clause but also its use-of-force clause, which was left unaffected by Johnson.” (Doc. 10 at 3-4). It further argues that Movant's Johnson claim is procedurally defaulted. (Doc. 10 at 6).[6] Finally, it argues that the Motion is wrong “on the merits ... because his manslaughter and assault offenses remain violent felonies under the use-of-force clause.” (Doc. 10 at 7).

         Analysis

         The Armed Career Criminal Act, 18 U.S.C. § 924 (“ACCA”), defines the term violent felony as follows:

(B) the term “violent felony” means 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.A. § 924(e)(2)(B) (West).

         (B)(i) is referred to as the “elements” clause of the ACCA. The first portion of (B)(ii) (“is burglary, arson, or extortion, involves use of explosives”) is referred to as the “enumerated” clause of the ACCA, and the last portion of (B)(ii) (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) is referred to as the “residual” clause of the ACCA. Mays v. United States, 817 F.3d 728, 731 (11th Cir. 2016).

         Johnson held that the residual clause of the ACCA is unconstitutionally vague. That Court held, “We are convinced that the indeterminacy of the wide-ranging inquiry required by the residual clause both denies fair notice to defendants and invites arbitrary enforcement by judges. Increasing a defendant's sentence under the clause denies due process of law.” Johnson, 135 S.Ct. at 2557. In that decision, the Supreme Court clearly stated that, in holding that the residual clause is void, it did not call into question the application of the elements clause or the enumerated crimes set out in the ACCA's definition of a “violent felony.” 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.”). Thus, the question for this Court to decide is whether, under the record now before me, which includes the PSR, the sentencing transcripts, and merits arguments from both sides, does Movant have at least two convictions that count as violent felonies under the ACCA's definitions that are unaffected by Johnson (that is, they are violent felonies under either the elements clause or the enumerated offenses clause). Because the predicate convictions are for Alabama manslaughter and Alabama second-degree assault, it is clear that they do not fall within the enumerated offenses clause. Accordingly, this Court must necessarily analyze each of the challenged convictions to determine whether, at the time Movant was sentenced, any two[7] of his challenged convictions qualified as a violent felony only under the residual clause of the ACCA.[8]

         Movant argues that the elements of the Alabama statutes applicable to his prior convictions are broader than the ACCA's provision defining a violent felony, because a conviction under either of the statutes at issue could be for reckless (as opposed to intentional) conduct under different alternative elements of each statute. This Court agrees. Further, the Eleventh Circuit has held “that a conviction predicated on a mens rea of recklessness does not satisfy the ‘use of physical force' requirement under [United States Sentencing Guidelines] § 2L1.2's definition of ‘crime of violence.'” United States v. Palomino Garcia, 606 F.3d 1317, 1336 (11th Cir. 2010). Accordingly, this ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.