United States District Court, M.D. Louisiana
RULING AND ORDER
A. JACKSON CHIEF JUDGE.
the Court is the Motion to Vacate under 28 U.S.C. § 2255
(Doc. 65) and the Amended Motion to Vacate under 28 U.S.C.
§ 2255 (Doc. 72) by Petitioner Timothy Washington. Also
before the Court is the Motion to Expand the Record (Doc. 80)
by the United States. Petitioner requests that the Court vacate
his sentence in light of Johnson v. United States, 576 U.S.
___, 135 S.Ct. 2551 (2015). In Johnson, the Supreme Court
held that the Armed Career Criminal Act's
("ACCA") residual clause is unconstitutionally
vague. For the following reasons, the Motion to Vacate (Doc.
65) is DENIED AS MOOT, and the Amended Motion to Vacate (Doc.
72) and the Motion to Expand the Record (Doc. 80) are
December 10, 2008 Petitioner pled guilty to possession of a
firearm by a convicted felon under 18 U.S.C. § 922(g)(1)
before the Honorable Frank J. Polozola. (Docs. 16). On
November 18, 2009, the Court sentenced Petitioner to a
fifteen year term of imprisonment. (Doc. 44). At the
sentencing hearing, the Court adopted the factual findings in
the presentence report. (Doc. 49 at 3:12-15). At sentencing,
the Court explained that based on Petitioner's
"prior record" the Court was required to sentence
Petitioner to a fifteen year mandatory minimum as an armed
career criminal under 18 U.S.C. § 924(e). (Doc. 49 at
4:4-8, 6:6-10). Petitioner appealed, and the United States
Court of Appeals for the Fifth Circuit affirmed. (Doc. 63).
November 20, 2015, Petitioner proceeding pro se
filed a Motion to Vacate under 28 U.S.C. § 2255. (Doc.
65). Petitioner argues that he did not voluntarily plead
guilty because his attorney did not properly inform him about
the "ACCA enhancement requirements" and that he is
actually innocent of possession of a firearm by a convicted
felon because he is not a "state recidivist offender
under state law." (Doc. 65-1 at p. 3). On May 31, 2016,
Petitioner filed a supplemental memorandum in support of his
Motion to Vacate, arguing that he is entitled to relief in
light of Johnson. (Doc. 71). On July 22, 2016,
Petitioner now represented by the Office of the Federal
Public Defender filed an Amended Motion to Vacate under
§ 2255. (Doc. 72). The Office of the Federal Defender
argues that Petitioner is not an armed career criminal as
defined in Johnson. Id. On October 6, 2017, the
Government filed a Motion to Expand the Record, (Doc. 80),
and an opposition to Petitioner's motions to vacate.
(Doc. 81). The Court ordered the Petitioner to file
supplemental briefing, (Doc. 83), and the Petitioner did so.
2255 provides that a federal prisoner serving a court-imposed
sentence may move the court to vacate, set aside or correct
his sentence. 28 U.S.C. § 2255(a). Only a narrow set of
claims are cognizable on a Section 2255 motion. The statute
identifies four grounds on which a motion may be made: (1)
the sentence was imposed in violation of the Constitution or
laws of the United States; (2) the court was without
jurisdiction to impose the sentence; (3) the sentence exceeds
the statutory maximum sentence; or (4) the sentence is
"otherwise subject to collateral attack."
ACCA prohibits convicted felons from possessing firearms. 18
U.S.C. § 922(g). This crime ordinarily carries a maximum
sentence often years. Id. §924(a)(2). But if
the defendant has three previous convictions for a
"violent felony or a serious drug offense" then the
ACCA elevates the statutory sentencing range to a minimum of
fifteen years and a maximum of life. Id. §
ACCA defines "violent felony" in three ways:
• The elements clause defines a violent felony as a
crime that "has as an element the use, attempted use, or
threatened use of physical force against the person of
another." Id. § 924(e)(2)(B)(i).
• The enumerated clause provides that a violent felony
includes "burglary, arson, or extortion, [or a crime
that] involves use of explosives! 1" Id. §
• The residual clause defines a violent felony as a
crime that "otherwise involves conduct that presents a
serious potential risk of physical ...