Mitchell v. United States

          MEMORANDUM OPINION

          KARON OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.

         Alex Nathan Mitchell brings his third motion^[1] under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence by a person in federal custody. (Doc. 1). Prior to filing this motion, Mr. Mitchell obtained authorization from the Eleventh Circuit to file a successive § 2255 petition.

         Mr. Mitchell's motion arises from his June 2, 2009 conviction of one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Cr. Doc. 39).^[2] The court sentenced him to 235 months of imprisonment on September 30, 2009. (Cr. Doc. 54 at 2). The sentence included an enhancement under the Armed Career Criminal Act, 18 U.S.C. § 924(e), based on three underlying convictions for violent felonies. (Cr. Doc. 68 at 11). The predicate convictions were (1) resisting an officer with violence under Florida law; (2) aggravated assault by threat under Florida law; and (3) third degree robbery under Alabama law. (Cr. Doc. 1).

         Mr. Mitchell appealed his § 922(g)(1) conviction and sentence to the Eleventh Circuit on October 10, 2009. (Cr. Doc. 51). In his appeal, he argued that his conviction and sentence were improper because (1) the district court improperly denied his motion to suppress; (2) he was improperly categorized as an armed career criminal; and (3) his sentence was unreasonable. (Cr. Doc. 72). The Eleventh Circuit affirmed Mr. Mitchell's conviction and sentence. (Id.).

         In support of this motion, Mr. Mitchell argues that “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable” applies to his case, under 28 U.S.C. § 2255(h)(2). Specifically, he contends that his underlying convictions for resisting an officer with violence and aggravated assault no longer qualify as violent felonies under the ACCA in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016).

         On July 2, 2016, the court ordered the Government to show cause why the court should not grant Mr. Mitchell's § 2255 motion. (Doc. 3). The Government responded on August 5, 2016. (Doc. 7). Mr. Mitchell filed his reply brief on August 10, 2016. (Doc. 8). The court then allowed supplemental briefing by both Mr. Mitchell and the Government, who filed briefs on December 15, 2016, and January 20, 2017, respectively, regarding whether Mr. Mitchell's conviction for third degree robbery under Alabama law qualifies as a violent felony under the ACCA. (Doc. 10).

         Mr. Mitchell's § 2255 motion is now ripe for review.

         I. Background

         The indictment charged Mr. Mitchell with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). (Cr. Doc. 1). Mr. Mitchell pled not guilty. Following a jury trial on June 1-2, 2009, the jury convicted Mr. Mitchell. (Cr. Doc. 39).

         The presentence report (PSR) recommended an enhancement under the ACCA, 18 U.S.C. § 924(e)(1), because Mr. Mitchell had three prior convictions for violent felonies: (1) aggravated assault by threat under Florida law; (2) resisting an officer with violence under Florida law; and (3) third-degree robbery under Alabama law. (Cr. Doc. 65 at ¶ 19).

         The ACCA provides that a person who violates 18 U.S.C. § 922(g) and has three prior violent felony or serious drug offense convictions shall face an enhanced sentence. 18 U.S.C. § 924(e)(1). A “violent felony” is a crime punishable by imprisonment for more than 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 risk of physical injury to another . . . .

Id. § 924(e)(2)(B). Subsection (i) is commonly referred to as the “elements clause.” Subsection

         (ii) is split into two clauses: the “enumerated offenses clause” refers to “burglary, arson, or extortion, [or] involves use of explosives, ” and the “residual clause” refers to “otherwise involves ...