United States District Court, District of Columbia
MEMORANDUM OPINION [Dkts. # 57, 60]
RICHARD J. LEON UNITED STATES DISTRICT JUDGE.
Matthew West ("defendant" or "West")
moves to vacate and correct his sentence under 28 U.S.C.
§ 2255. See Suppl. Mot. to Vacate J. Under 28
U.S.C. § 2255 ("Pet.'s Suppl. Mot.") [Dkt.
# 60]; Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence ("Pet.'s Mot.") [Dkt. #
57]. Following his conviction for possessing a firearm as a
convicted felon, West was sentenced as an armed career
criminal pursuant to the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e). In his §
2255 pleadings, West argues that his sentence is invalid in
light of the Supreme Court's decision in Johnson v.
United States, 135 S.Ct. 2551 (2015), which struck down
as unconstitutionally vague a provision of ACCA known as the
the residual clause invalidated, West contends that he no
longer qualifies as an armed career criminal under ACCA.
Specifically, West asserts that his prior felony convictions
for New Jersey second-degree aggravated assault, third-degree
aggravated assault, and second-degree robbery do not
constitute "violent felon[ies]" under ACCA's
remaining applicable provision, known as the "elements
clause." Pet.'s Suppl. Mot. 2; see 18
U.S.C. § 924(e)(2)(B). Thai is so, according to West,
because: 1) the New Jersey assault statute requires only that
a defendant act recklessly; and 2) the relevant provision of
the New Jersey robbery statute does not require the use of
violent physical force. See Pet.'s Suppl. Mot.
16-20. West therefore asks this Court to vacate and correct
Government counters that West's motion should be
dismissed on the procedural grounds that it does not satisfy
the requirements for second or successive petitions, is
time-barred, and is procedurally defaulted. See
U.S.'s Opp'n to Def.'s Mot. & Suppl. Mot.
Vacate J. Under 28 U.S.C. § 2255 ("U.S.'s
Opp'n") 11-19 [Dkt. # 64]. On the merits,
the Government argues that West's prior convictions for
assault and robbery qualify as violent felonies under
ACCA's elements clause and that West's sentence
should therefore stand. Id. at 19-32. Upon
consideration of the pleadings and the relevant law, and for
the reasons discussed below, 1 agree with the Government that
West's motion to vacate and correct his sentence is
procedurally barred and, in any event, fails on the merits.
law prohibits convicted felons, such as West, from possessing
firearms, See 18 U.S.C. § 922(g)(1). On October
1, 2004, a jury convicted West of violating that prohibition.
See 10/1/2004 Minute Entry. Generally, prior felons
found guilty of unlawfully possessing a handgun in violation
of § 922(g)(1) face up to 10 years' imprisonment.
See 18 U.S.C. § 924(a)(2). That sentencing
calculus changes, however, if the individual qualifies for a
sentencing enhancement under ACCA, As relevant here, ACCA
provides that a defendant convicted of violating §
922(g)(1) is subject to a mandatory minimum prison term of 15
years if the defendant has three prior convictions for a
"violent felony." Id. § 924(e)(1).
ACCA defines "violent felony" as "any crime
punishable by imprisonment for a term exceeding one
year" that (1) "has as an element the use,
attempted use, or threatened use of physical force against
the person of another"; (2) "is burglary, arson, or
extortion, [or] involves use of explosives"; or (3)
"otherwise involves conduct that presents a serious
potential risk of physical injury to another."
Id. § 924(e)(2)(B). Those provisions,
respectively, have come to be known as ACCA's
"elements clause," "enumerated clause,"
and "residual clause." See United Slates v.
Booker, 240 F.Supp.3d 164, 167 (D.D.C. 2017).
time of his § 922(g)(1) conviction in this Court,
West's prior felony record included New Jersey state
convictions for second-degree aggravated assault,
third-degree aggravated assault, and second-degree robbery.
Pet.'s Suppl. Mot. 2; see 2/8/2005 Revised
Presentence Investigation Report ("PSR") 6-8. Based
on that record, both the Government and West agreed with the
Probation Office's conclusion that West was subject to a
mandatory minimum of 15 years' imprisonment under ACCA.
See PSR ¶ 15 ("[T]he defendant has at
least 3 prior convictions for 'violent felonies' as
defined under 18 U.S.C. § 924(e)(2)."); see
Id. ¶ 67 & p. 16. I accepted that assessment
and, on March 24, 2005, sentenced West to a prison term of
216 months. See Judgment 1-2 [Dkt. # 29], Over a
decade later, during which West tried but failed to set aside
his conviction and sentence both on direct appeal and through
multiple collateral challenges,  the Supreme Court issued its
2015 decision in Johnson v. United States
("Johnson 2015"). 135 S.Ct. 2551 (2015). In
that decision, for reasons this Court need not detail, the
Supreme Court struck down ACCA's "residual
clause" as unconstitutionally vague. See Id. at
2563. The next year, in Welch v. United States, 136
S.Ct. 1257 (2016), the Supreme Court held that
Johnson 2015 announced a new, substantive
constitutional rule and, as such, applied retroactively to
cases on collateral review. See Id. at 1265.
after the decision in Welch, the Chief Judge of our
Court issued a Standing-Order containing procedures to be
followed by defendants asserting post-Johnson 2015
challenges to their sentences. See generally
6/2/2016 Standing Order. The Standing Order appointed the Office
of the Federal Public Defender for the District of Columbia
to represent eligible defendants who may qualify for relief
from their sentences under Johnson 2015 and
Welch. Id. at 1. Pursuant to the Standing
Order's instructions, West, through counsel, filed an
abridged motion under 28 U.S.C. § 2255 to vacate and
correct his sentence in light of Johnson 2015.
See generally Pet.'s Mot. After receiving
permission to file a second or successive § 2255 motion
from D.C. Circuit, see In re Matthew West, No.
16-3049 (D.C. Cir. July 1, 2016) ("Circuit Order")
[Dkt. # 58], West filed the supplemental § 2255
motion currently pending before the Court, see
Pet.'s Suppl. Mot.
U.S.C. § 2255 permits a federal prisoner such as West to
file a motion to "vacate, set aside or correct" a
sentence that "was imposed in violation of the
Constitution or laws of the United States" or "was
in excess of the maximum authorized by law."
Id. § 2255(a). In his supplemental motion, West
argues that he is entitled to relief under the terms of
§ 2255 because he no longer qualifies as an armed career
criminal under ACCA-and thus cannot lawfully be subjected to
ACCA's 15-year mandatory minimum-following
Johnson 2015's invalidation of the residual
clause. See Pet.'s Suppl. Mot. 2. That is so,
West asserts, because his prior felony convictions for New
Jersey second-degree aggravated assault, third-degree
aggravated assault, and second-degree robbery do not qualify
as violent felonies under the remaining applicable ACCA
provision known as the elements clause. See Id. at
13-21. West therefore asks this Court to grant his §
2255 motion, vacate his original mandatory-minimum sentence,
and either resentence or discharge him. Id. at
Government opposes West's motion on both procedural and
substantive grounds. To start, the Government argues that
West's motion does not satisfy the statutory requirements
for a second or successive § 2255 motion-specifically,
the requirement that his claim ''relies on a new rule
of constitutional law." 28 U.S.C. § 2244(b)(2)(A);
see U.S.'s Opp'n 11-15. In the alternative,
the Government argues that West's motion is untimely
under § 2255(f)'s one-year statute of limitations
and is procedurally defaulted due to West's failure to
raise his ACCA claims at trial or on direct appeal.
See U.S.'s Opp'n 15-19. On the merits, the
Government asserts that Johnson 2015 does not
entitle West to relief because West's prior convictions
for New Jersey aggravated assault and robbery qualify as
violent felonies-and thus expose him to ACCA's 15-year
mandatory minimum sentence-under ACCA's still-valid
elements clause. See Id. at 19-32. Having considered
those arguments, I agree with the Government that West's
§ 2255 petition should be DENIED. A discussion of the
various procedural and substantive issues presented by
West's motion will quite clearly demonstrate why.
law erects several procedural hurdles that federal habeas
petitioners must clear before their claims may be considered
on the merits. The Government argues that West's motion
fails to clear two such procedural hurdles.
the Government argues that West's motion fails to satisfy
the threshold standard for a second or successive motion
under 28 U.S.C. § 2255. That standard, in relevant part,
authorizes a district court to entertain a second or
successive § 2255 motion only when the applicant shows
that the claim relies on "a new rule of constitutional
law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable."
Id. § 2255(h)(2); see also Id. §
2244(b)(2)(A). The Government contends that West has failed
to carry his threshold burden to show that his motion in fact
"relies" upon Johnson 2015. Id.
§ 2255(h)(2). That conclusion follows, the Government
asserts, because West has not demonstrated that his mandatory
minimum sentence was indeed rendered pursuant to ACCA's
now-invalid residual clause, as opposed to the
constitutionally permissible elements clause.
the Government argues that West's motion runs afoul of
the one-year statute of limitations period applicable to
§ 2255 motions. See Id. §2255(1). When a
habeas petitioner asserts a challenge based upon a right
"newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review,"
the one-year limitations period begins running on "the
date on which the right asserted was initially recognized by
the Supreme Court." Id. § 2255(f)(3). The
Government concedes that Johnson 2015 triggered a
new one-year period for the filing of § 2255 motions,
see U.S.'s Opp'n 16; West's initial
post-Johnson 2015 petition, moreover, was filed
within that one-year period. See generally
Pet.'s Mot. Notwithstanding those considerations. the
Government maintains that West's claim is untimely
because, without demonstrating that he was sentenced pursuant
to the residual clause (as opposed to the elements clause),
West cannot show that his claim is "in fact predicated
on" Johnson. 2015's invalidation of the
residual clause. U.S.'s Opp'n 17.
above discussion indicates, the Government's procedural
arguments are largely premised on West's alleged failure
to demonstrate that he was sentenced pursuant to the
now-defunct residual clause (as opposed to the elements
clause). Whether and to what extent a defendant must make
that showing to overcome procedural objections under §
2244 and § 2255 is a question that has divided courts
fielding the influx of post-Johnson 2015 habeas
side of the issue, several courts-including some of my
colleagues-have held that, to overcome the various procedural
hurdles applicable to collateral habeas challenges, a
post-Johnson 2015 habeas petitioner need only show
that his sentence "may have been predicated on
application of the now-void residual clause." United
States v. Winston, 850 F.3d 677, 682 (4th Cir. 2017)
(emphasis added); see also, e.g., United States v.
Geozos, 870 F.3d 890, 896 (9th Cir. 2017);
Booker, 240 F. Supp; 3d at 169: United States v.
Wilson, 9 F.Supp.3d 305');">249 F.Supp.3d 305, 311-13 (D.D.C. 2017);
United States v. Butler, 253 F.Supp.3d 133, 140-41
(D.D.C. 2017). Under that framework, for which West
advocates, a sentencing court's "silence regarding
the basis of the defendant's sentence" is
"construed ... in the petitioner's favor."
Dimott v. United States, 881 l;.3d 232,
240n.6(l st Cir. 2018) (citing In re Chance, 831
F.3d 1335, 1341 (11th Cir. 2016)). Such a rule is necessary,
according to the courts that have adopted it, to avoid an
"absurd" scheme under which "certain criminal
defendants would be barred from raising an otherwise
cognizable claim under Johnson (2015) because the
sentencing judge did not specify which clause she was relying
on at a time when that was not required."
Butler, 253 F.Supp.3d at 140 (internal quotation
marks omitted). "To require more," some courts have
cautioned, "would render Johnson relief
virtually impossible to obtain." Booker, 240
F.Supp.3d at 169 (internal quotation marks omitted).
courts have adopted a more stringent threshold rule under
which a-post-Johnson 2015 habeas petitioner
"bears the burden of establishing that it is more
likely than not that he was sentenced solely pursuant to
ACCA's residual clause." Dimott, 881 F.3d
at 243 (emphasis added) (dismissing Johnson 2015
claim as untimely); see also Beeman v. United
States,871 F.3d 1215, 1223-25 (11th Cir. 2017)
(dismissing Johnson 2015 claim because petitioner
"failed to prove-that it was more likely than not-he in
fact was sentenced as an armed career criminal under the
residual clause"); United States v. Washington,890 F.3d 891, 896 (10th Cir. 2018) (rejecting argument that
defendant need only show that the "district court
could have relied on the residual clause" and
instead holding that "the burden is on the defendant to
show by a preponderance of the evidence-i.e., that
it is more likely than not-his claim relies ...