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Jackson v. United States

United States District Court, S.D. Ohio, Eastern Division

June 20, 2017

ROBERT JACKSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Civ. No. 2:16-cv-267

          JUDGE, MICHAEL H. WATSON

          REPORT AND RECOMMENDATION

          NORAH MCCANN KING, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal prisoner, has filed a Motion to Vacate under 28 U.S.C. § 2255 (“Motion to Vacate”). This matter is before the Court on the Motion to Vacate (ECF No. 51), Respondent's Response to Defendant's Petition for Relief under 28 U.S.C. § 2255 (ECF No. 60)(“Government's Response”), Petitioner's Reply to Government's Response (ECF No. 61)(“Petitioner's Reply”), and the exhibits of the parties. For the reasons that follow, it is RECOMMENDED that the Motion to Vacate be GRANTED and that Petitioner be resentenced on his conviction under 18 U.S.C. § 922(g)(1).

         Facts and Procedural History

         On April 8, 2005, Petitioner was indicted on one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). That statute ordinarily authorizes a maximum sentence of 10 years in prison. However, the Indictment also included enhancing allegations under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), i.e., that Petitioner had previously been convicted of three violent felonies: a 1978 robbery conviction and two 1982 breaking and entering convictions, all in the Hamilton County Court of Common Pleas. Indictment (ECF No. 15). Under the ACCA, such a defendant would face, upon conviction, a mandatory minimum term of 15 years in prison to a maximum of life in prison. Petitioner moved to strike the enhancing allegations, taking the position that one of the 1982 breaking and entering convictions, Case No. B 82-3264, could not be considered a “violent felony” within the meaning of the ACCA. Motion to Strike ACCA Provision of the Indictment (ECF No. 20). On October 25, 2005, the Court denied that motion. Order (ECF No. 28). On December 13, 2005, Petitioner pled guilty to the charge pursuant to the terms of a Plea Agreement (ECF No. 32).[1] On August 24, 2006, the Court sentenced Petitioner, as an armed career criminal, to the mandatory minimum term of imprisonment of fifteen years, or 180 months. Judgment (ECF No. 40). Petitioner pursued an appeal from his conviction and sentence; however, his attorney moved to withdraw and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967). The United States Court of Appeals for the Sixth Circuit affirmed the judgment of this Court. United States of America v. Jackson, No. 06-4332 (6th Cir. Sept. 24, 2007).

         Petitioner filed the Motion to Vacate on January 26, 2016. The Motion to Vacate argues that, in view of Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551 (2015), Petitioner's other 1982 breaking and entering conviction, Case No. B 82-0454, does not qualify as a violent felony under the ACCA. Petitioner's Reply, filed on November 28, 2016, argues that, in view of Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), neither of his 1982 breaking and entering convictions qualifies as a violent felony under the ACCA in view of Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2010). According to Petitioner, his 180 month sentence was therefore improperly enhanced. Respondent contends that Petitioner has failed to state a claim, and argues that this action must be dismissed.[2]

         Standard of Review

         In order to obtain relief under 28 U.S.C. § 2255, a defendant must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States, where the trial court lacked jurisdiction, or when the sentence was in excess of the maximum sentence allowed by law or is “otherwise subject to collateral attack.” United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). Apart from constitutional error, the question is “whether the claimed error was a ‘fundamental defect which inherently results in a complete miscarriage of justice, '” Davis v. United States, 417 U.S. 333, 346 (1974)(quoting Hill v. United States, 368 U.S. 424, 428-429 (1962); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006).

         Merits

         Petitioner challenges the Court's determination that he qualified as an armed career offender based on his two 1982 breaking and entering convictions in the Hamilton County Court of Common Pleas.[3] See Presentence Report, ¶¶ 47, 48; Sentencing Transcript (ECF No. 46, PageID# 146). Both convictions were based on alleged violations of O.R.C. § 2911.13, which provides in pertinent part as follows:

(A) No person by force, stealth, or deception, shall trespass in an unoccupied structure, with purpose to commit therein any theft offense, as defined in section 2913.01 of the Revised Code, or any felony.
(B) No person shall trespass on the land or premises of another, with purpose to commit a felony.

O.R.C. § 2911.13.

         Under the ACCA, a criminal defendant who possesses a firearm following conviction on three or more convictions for, inter alia, a “violent felony” is subject to a prison term ranging from 15 years to life. 18 U.S.C. § ...


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