United States District Court, N.D. Alabama, Eastern Division
VIRGINIA EMERSON HOPKINS United States District Judge.
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.
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. 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).
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Cir. 2008) (per curiam) (unpublished).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.
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).
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.
has filed the Motion (Doc. 1), a Memorandum of Law (Doc. 2),
a Response to Attorney's Motion To Withdraw (Doc.
a Motion To Amend (Doc. 6), and a Request for Judicial Notice
(Doc. 15). 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
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). 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).
Armed Career Criminal Act, 18 U.S.C. § 924
(“ACCA”), defines the term violent felony as
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year,
(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).
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).
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 of his challenged convictions qualified as
a violent felony only under the residual clause of the
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 ...