United States District Court, N.D. Alabama, Southern Division
OWEN BOWDRE CHIEF UNITED STATES DISTRICT JUDGE.
Nathan Mitchell brings his third motion 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.
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.
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.
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.
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).
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).
Mitchell's § 2255 motion is now ripe for review.
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).
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).
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
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