United States District Court, N.D. Ohio, Eastern Division
ORDER ON MOTION TO VACATE, SET ASIDE, OR CORRECT
SENTENCE UNDER 28 U.S.C. § 2255
R. ADAMS UNITED STATES DISTRICT JUDGE.
matter is before the Court upon Petitioner Jermaine
McBee's Amended Motion to Vacate, Set Aside, or Correct
Sentence under 28 U.S.C. § 2255. (Doc. #43.) The
petition is GRANTED.
STANDARD OF REVIEW
prevail under 28 U.S.C. § 2255, a defendant must show a
‘fundamental defect' in the proceedings which
necessarily results in a complete miscarriage of justice or
an egregious error violative of due process.” Gall
v. United States, 21 F.3d 107, 109 (6th Cir. 1994). A
federal district court may grant relief to a prisoner in
custody only if the petitioner can “demonstrate the
existence or influence on the guilty plea or the jury's
verdict.” Griffin v. United States, 330 F.3d
733, 736 (6th Cir. 2003).
LAW AND ARGUMENT
McBee argues that his Ohio conviction for abduction no longer
qualifies as a predicate offenses to support his armed career
criminal designation under 18 U.S.C. § 924(e) (the
“ACCA”). This Court agrees.
jury indicted Mr. McBee on two counts for (1) possession with
intent to distribute crack cocaine, in violation of 21 U.S.C.
§ 841 (Count 1), and (2) being a felon in possession of
a firearm, in violation of 18 U.S.C. § 922(g)(1) and
924(e) (Count 2). Mr. McBee pled guilty to the indictment
with a written plea agreement. The plea agreement outlined
that Mr. McBee would likely qualify as a career offender with
a base offense level of 37 as to Count 1, and as an armed
career criminal, requiring a mandatory minimum of 15 years on
Count 2. Mr. McBee reserved the right to challenge both
findings on appeal.
to Mr. McBee's sentencing hearing, the U.S. Probation
Office prepared a presentence investigation report
(“PSR”). The PSR identified three qualifying
predicate offenses for the ACCA: (1) felonious assault; (2)
burglary; and (3) abduction. All were Ohio offenses. The
government subsequently cited to four qualifying offenses in
its sentencing memorandum: (1) attempted felonious assault;
(2) felonious assault; (3) burglary; and (4) abduction. These
offenses served as predicates at sentencing to qualify Mr.
McBee as an armed career criminal, as well as a criminal
abduction offense initially had been indicted as a kidnapping
with two firearm specifications. The kidnapping count charged
that Mr. McBee “unlawfully and by force, threat or
deception removed [M.L.] from the place where she was found
or restrained her of her liberty for the purpose of
facilitating the commission of a felony or the flight
thereafter and/or terrorizing or inflicting serious physical
harm on M.L.” (Doc. #46-1, p. 259.) The kidnapping
charge was amended to abduction under R.C. 2905.02. The
amendment did not specify a subsection under R.C. 2905.02.
sentencing on August 6, 2008, this Court found that Mr. McBee
was both a career offender and an armed career criminal. The
Court sentenced him to 262 months on both counts to run
concurrently. Mr. McBee timely appealed the career offender
application. The Sixth Circuit denied the appeal.
McBee filed a motion to vacate, set aside or correct the
judgment in June 2014, more than four years after his appeal
was denied. In December 2015, he filed a motion for the
appointment of counsel to amend his petition to assert claim
under Johnson v. United States__, U.S.__, 135 S.Ct.
2551, 2015 WL 2473450 (June 26, 2015). This Court granted the
motion to amend. Mr. McBee filed an amended petition in March
2016 to timely assert a claim under Johnson. The
government argues, and Mr. McBee appears to concede, that any
other claims in Mr. McBee's petition are untimely.
Accordingly, those claims are denied. Only Mr. McBee's
claim under Johnson remains before the Court.
Johnson, Mr. McBee argues that he no longer
possesses the requisite predicate offenses to qualify as an
armed career criminal under the ACCA. The ACCA establishes a
15-year mandatory minimum sentence for a criminal defendant
charged as a felon in possession of a firearm who had at
least 3 prior convictions that are either (1) serious drug
offenses or (2) violent felonies. 18 U.S.C. § 924(e). A
violent felony had three different possible definitions:
(1) an offense that “has as an element the use,
attempted use, or threatened use of physical force”