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Davis v. United States

United States District Court, M.D. Alabama, Northern Division

September 26, 2019

WILLIE GENE DAVIS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         After obtaining authorization under 28 U.S.C. §§ 2252(h)(2) and 2244(b)(3) from the Eleventh Circuit Court of Appeals to file a second or successive 28 U.S.C. § 2255 motion, Petitioner Willie Gene Davis filed this 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence under Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. # 1.)[1] In Johnson, which applies retroactively to cases on collateral review, see Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court voided for vagueness the residual clause of the “violent felony” definition in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). Through counsel, [2] Davis challenges his designation as an armed career criminal and argues that, under Johnson, he no longer has three prior convictions that qualify as ACCA predicates. He seeks resentencing without application of the ACCA. For the reasons that follow, Davis’s § 2255 motion is due to be denied.

         II. BACKGROUND

         A. Davis’s Criminal Case

         On May 13, 2008, a jury found Davis guilty of possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). A conviction under § 922(g)(1) normally carries a sentence of not more than ten years’ imprisonment. 18 U.S.C. § 924(a)(2). However, under the ACCA, an individual who violates § 922(g) and has three or more prior convictions for a “violent felony, ” a “serious drug offense, ” or both, is subject to an enhanced sentence of not less than fifteen years. 18 U.S.C. § 924(e)(1); see also Descamps v. United States, 570 U.S. 254, 258 (2013) (noting the typical statutory maximum sentence and the ACCA’s heightened mandatory minimum for § 922(g) convictions).

         In 2008, when Davis was sentenced, the ACCA provided three definitions of “violent felony.” The “elements clause” covered any offense that “ha[d] as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i). The next subsection in the statute contained the other two definitions. See 18 U.S.C. § 924(e)(2)(B)(ii). That subsection defined “violent felony” as any offense that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” The first nine words made up the “enumerated-offenses clause, ” and the last fifteen composed the catchall (and now void) “residual clause.” See, e.g., In re Sams, 830 F.3d 1234, 1236–37 (11th Cir. 2016). Of importance to the issues presented in Davis’s § 2255 motion, the enumerated-offenses clause encompassed (and still encompasses) only “generic” versions of the listed offenses - that is, offenses comporting with the way “in which the term [e.g., burglary] is now used in the criminal codes of most [s]tates.” Taylor v. United States, 495 U.S. 575, 598 (1990).

         1. Davis’s Presentence Investigation Report

         The U.S. probation officer indicated in Davis’s presentence investigation report (“PSR”) that he had the requisite number of predicate convictions to subject him to the ACCA enhancement. (Doc. # 6-5, at 5–6, ¶¶ 27–28; at 18, ¶ 2.) The probation officer provided that Davis had three prior convictions that qualified as violent felonies for purposes of an ACCA enhancement: (1) a 1977 Alabama conviction for second-degree burglary; (2) a 1981 Alabama conviction for third-degree burglary; and (3) a 1992 Alabama conviction for second-degree escape. (Doc. # 6-5, at 18, ¶ 2; see Id . at 7–8, ¶¶ 38, 44–45.) The probation officer noted that § 924(e)(2)(B)(ii) specifically referenced burglary as a crime of violence. (Doc. # 6-5, at 18, ¶ 2.) The probation officer did not specify under which clause of the ACCA definition of violent felony Davis’s Alabama second-degree escape conviction fell. The probation officer also provided that Davis had prior Alabama convictions, obtained in 1996, for five counts of unlawful distribution of a controlled substance. (Doc. # 6-5, at 18, ¶ 2; Doc. # 6-5, at 9, ¶ 47.) The PSR indicates that the drug purchases occurred “on five separate occasions” on two different dates. (Doc. # 6-5, at 9 ¶ 47.) The probation officer indicated that a conviction for drug distribution qualified as a serious drug offense for purposes of an ACCA enhancement, but it did not matter whether Davis’s five drug-distribution convictions were counted separately or as only one prior conviction because even one drug distribution conviction, when coupled with Davis’s prior convictions for violent felonies, would yield a total of four qualifying predicate convictions for purposes of an ACCA enhancement. (Doc. # 6-5, at 18, ¶ 2.)

         2. Sentencing Hearing

         Davis’s sentencing hearing was held on November 6, 2008. (Doc. # 6-8.) There, the Government argued that, as indicated in the PSR, Davis was subject to an ACCA-enhanced sentence because he had three or more prior convictions for either a violent felony or a serious drug offense, or a combination of both. (See Doc. # 6-8, at 10–17.) The Government offered into evidence certified copies of the conviction reports and indictments for Davis’s Alabama convictions for second-degree and third-degree burglaries, second-degree escape, and five counts of unlawful distribution of a controlled substance. (Doc. # 6-8, at 10–11.) Davis’s counsel objected to application of the ACCA, arguing that neither of Davis’s prior Alabama burglary convictions was a violent felony for purposes of the ACCA and that Davis’s five Alabama drug distribution convictions should be counted as only one prior conviction because they were the result of sales to the same person during the same drug investigation. (Doc. # 6-8, at 8–10 & 20–21.)

         After considering the parties’ arguments, the district court found that Davis’s two prior Alabama burglary convictions were for “generic burglaries” that qualified as violent felonies under the ACCA’s enumerated-offenses clause. (Doc. # 6-8, at 12–19 & 34.) The district court further found that Davis had “at least two” prior qualifying predicate convictions for serious drug offenses because the evidence established that two of the underlying drug sales took place on separate dates. (Doc. # 6-8, at 21–24 & 34–35.) Finally, the district court found that Davis’s prior Alabama conviction for second-degree escape qualified as a violent felony, accepting the Government’s argument (apparently under the ACCA’s residual clause) that Davis’s escape from a penal facility involved an increased inherent risk. (Doc. # 6-8, at 24–26 & 32–35.) Concluding that Davis had a total of five qualifying predicate convictions, the district court sentenced Davis under the ACCA to 220 months in prison. (Doc. # 6-8, at 35, 40 & 44.)

         3. Direct Appeal

         Davis appealed his conviction, arguing that the district court erred in denying his motion to suppress evidence. In March 2010, the Eleventh Circuit Court of Appeals affirmed the judgment of conviction. United States v. Davis, 598 F.3d 1259 (11th Cir. 2010); (see Doc. # 6-10.) Davis’s petition for certiorari review with the United States Supreme Court was granted, and on June 16, 2011, the Supreme Court affirmed the judgment of the Eleventh Circuit. Davis v. United States, 564 U.S. 229 (2011); (Doc. # 6-11.)

         4. Davis’s First § 2255 Motion

         In January 2012, Davis filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, in which he asserted various claims of ineffective assistance of counsel. See Davis v. United States, No. 2:12-cv-38-WKW (M.D. Ala. Jan. 12, 2012). In September 2014, this court denied Davis relief on the claims in his § 2255 motion. The Eleventh Circuit denied Davis’s application for a certificate of appealability in April 2015. See Davis, No. 2:12-cv-38-WKW (Doc. # 30).

         B. The Supreme Court’s Decision in Johnson

         In June 2015, after Davis’s first § 2255 motion was rejected, the Supreme Court struck down the ACCA’s residual clause as unconstitutionally vague. Johnson v. United States, 135 S.Ct. 2551 (2015). The Court reasoned: “[T]he 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.” Id. at 2557. However, the Court “d[id] not call into question application of the [ACCA] to . . . the remainder of the Act’s definition of a violent felony.” Id. at 2563 (alterations added). Subsequently, in Welch v. United States, 136 S.Ct. 1257 (2016), the Supreme Court held that the Johnson decision announced a new substantive rule of constitutional law that applies retroactively to cases on collateral review.

         C. Davis’s Johnson Claim

         In May 2016, Davis filed an application with the Eleventh Circuit seeking authorization to file a second or successive § 2255 motion based on Johnson. See In re Davis, No. 16-12458 (11th Cir. 2016). In that application, Davis argued that he received the ACCA enhancement based on prior convictions - specifically, his Alabama convictions for second-degree burglary, third-degree burglary, and second-degree escape - that qualified as violent felonies under the ACCA’s now-void residual clause and thus his ACCA-enhanced sentence is invalid. Id. On June 3, 2016, the Eleventh Circuit authorized Davis to file a second-or-successive § 2255 motion under 28 U.S.C. §§ 2255(h) and 2244(b)(3)(A), finding he had made a prima facie showing that his ACCA-enhanced sentence is invalid under Johnson. (Id.; see Doc. # 6-14.)

         On June 21, 2016, Davis filed this § 2255 motion arguing he is entitled to be resentenced without the ACCA enhancement because, after Johnson, his Alabama convictions for second-degree burglary, third-degree burglary, and second-degree escape no longer qualify as violent felonies under the residual clause of the ACCA. He contends that, without the residual clause, the classification of his burglary and escape convictions under the remaining ACCA definitions of violent felony is also incorrect. Davis maintains that, when his burglary and escape convictions are excluded from use as predicate violent felonies for purposes of the ACCA, he no longer has the minimum number of qualifying prior convictions (i.e., three) to qualify as an armed career criminal under 18 U.S.C. ยง 924(e). (Doc. # ...


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