United States District Court, S.D. Ohio, Eastern Division
MICHAEL H. WATSON
REPORT AND RECOMMENDATION
MCCANN KING, UNITED STATES MAGISTRATE JUDGE
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.
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).
and Procedural History
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). 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).
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.
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).
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. 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.
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. § ...