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United States v. White

United States District Court, W.D. Louisiana, Lake Charles Division

February 21, 2019

UNITED STATES OF AMERICA
v.
LANE B. WHITE

          KATHLEEN KAY MAGISTRATE JUDGE

          MEMORANDUM RULING

          ROBERT G. JAMES UNITED STATES DISTRICT JUDGE

         Before the Court is a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 filed by the Petitioner, Lane B. White (“White”). [Rec. Docs. 101, 104]. For the reasons assigned herein, Petitioner's motion is hereby DISMISSED.

         BACKGROUND INFORMATION

         On June 9, 2004, White was indicted and charged with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). [Rec. Doc. 1]. On March 10, 2005, White entered a plea of guilty. [Rec. Doc. 46]. On November 1, 2005, White was sentenced to 180 months imprisonment, followed by three years of supervised release. [Rec. Doc. 54]. White's sentence was enhanced under the provisions of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). See Id. The ACCA enhancement was based on White's three prior Louisiana felony convictions, including two convictions for drug distribution, and one conviction for “aggravated battery with a dangerous weapon.” [PSR at ¶¶ 26 - 28]. White filed a direct appeal of his sentence, which was affirmed. [Rec. Docs. 55, 59]. Thereafter, on January 22, 2007, White's petition for writ of certiorari before the United States Supreme Court was denied. [Rec. Doc. 60].

         On July 30, 2007, White filed a Motion to Vacate pursuant to 28 U.S.C. § 2255, alleging ineffective assistance of counsel related to the imposition of the ACCA sentence enhancement. [Rec. Doc. 61]. On January 15, 2009, the Court denied White's motion. [Rec. Doc. 76]. On September 11, 2009, the Fifth Circuit denied White's request for a certificate of appealability. [Rec. Doc. 87].

         In 2016, White requested permission from the Fifth Circuit to file a successive 28 U.S.C. § 2255 petition to challenge his ACCA sentencing enhancement following the Supreme Court's decision in Johnson v. United States, U.S., 135 S.Ct. 2551 (2015). White also requested permission to present a due process argument regarding the sentencing court's evaluation of his criminal history pursuant to United States v. Hernandez-Rodriguez, 788 F.3d 193 (5th Cir. 2015). On May 25, 2016, the Fifth Circuit granted White permission to proceed with respect his Johnson claim, but denied White's request as to Hernandez-Rodriguez. [Rec. Doc. 97]. The Fifth Circuit instructed this Court to dismiss White's motion without reaching the merits if he fails to demonstrate that a new constitutional law, made retroactive, applies to his case pursuant to 28 U.S.C. § 2244(b)(4). See id.

         On July 25, 2016, White filed his successive 28 U.S.C. § 2255 petition with this Court. [Rec. Doc. 101]. On August 12, 2016, White filed an amended petition. [Rec. Doc. 104].[1] The Court issued standard administrative orders applicable to all cases potentially impacted by Johnson, and the federal public defender was appointed to represent White. [Rec. Docs. 107, 108]. Consistent with the Court's standard administrative order, this matter was stayed to allow additional time to develop the record and receive additional instruction from the higher courts. See Id. On May 24, 2018, the government and the petitioner were provided briefing deadlines. [Rec. Doc. 112]. Both parties filed their respective briefs. [Rec. Docs. 113, 114, 115].

         The Court notes that on December 13, 2018, White completed his term of imprisonment and was released from detention. See https://www.bop.gov/inmateloc. However, White remains subject to a three-year term of supervised release. The Fifth Circuit has determined that a petitioner's section 2255 motion is not necessarily moot when he remains on supervised release. See Johnson v. Pettiford, 442 F.3d 917, 918 (5th Cir. 2006) (citation omitted). If a petitioner has served excess prison time a court may choose to reduce the period of supervised release, which prevents a finding that the petition is moot. See Id. “[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir. 2016) (quoting Knox v. Serv. Employees Int'l Union, Local 1000, 567 U.S. 298, 307-08, 132 S.Ct. 2277, 2287 (2012)). Because White has alleged that his sentence was excessive in light of Johnson, White's petition is not moot and the Court will proceed with its analysis.

         LAW AND ANALYSIS

         A successive section 2255 petition must meet certain procedural requirements before a district court may reach the merits of the application. See 28 U.S.C § 2244(b), 28 U.S.C. § 2255(h); Reyes-Requena v. United States, 243 F.3d 893, 896-900 (5th Cir. 2001). A petitioner must clear two “gates” before a successive petition may properly be heard on the merits. See Reyes-Requena, 243 F.3d at 899. First, the petitioner must make a prima facie showing that his successive petition relies on either (1) a new constitutional law made retroactive on collateral review, or (2) clear and convincing newly discovered evidence demonstrating that no reasonable fact finder would have found him guilty but for error. See 28 U.S.C. § 2244(b)(2), (3)(A). Second, the petitioner must actually prove that his petition relies upon retroactive constitutional law or new evidence. See 28 U.S.C. § 2244(b)(2), (4). In this instance, the Fifth Circuit has determined that the first gate has been cleared. [Rec. Doc. 97]. It is this Court's task to determine if White can clear the second gate.

         White argues in his petition that he is entitled to relief from his ACCA sentencing enhancement under 18 U.S.C. § 924(e) following the Supreme Court's decision in Johnson. [Rec. Docs. 101, 104]. The ACCA provides that a person who possesses a gun in violation of section 922(g) and has three previous convictions for a “violent felony” or a “serious drug offense” is subject to a higher sentencing range than would originally apply. As defined by 18 U.S.C. § 924(e)(2)(B), “the term ‘violent felony' means any crime […] that-- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B) (emphasis added).

         In Johnson, made retroactively applicable in United States v. Welch, U.S., 136 S.Ct. 1257 (2016), the Supreme Court held that the residual clause (italicized above) is unconstitutionally vague because it invites arbitrary enforcement and fails to give fair notice of the conduct it punishes. See Johnson, 135 S.Ct. at 2557, 2563. Thus, a conviction based on the residual clause of section 924(e)(2)(B)(ii) violates a defendant's right to due process. See Id. at 2563. Importantly, Johnson did “not call into question” the remainder of the ACCA, including the definition of “violent felony” as set forth in the elements clause, or the enumerated offenses (i.e. burglary, arson, extortion, or use of explosives). See id.; United States v. Jeffries, 822 F.3d 192, 193 (5th Cir. 2016). Thus, after Johnson the Court may only apply the ACCA enhancement where a “violent felony is one of a No. of enumerated offenses (i.e. burglary, arson, extortion, or use of explosives) or a felony that ‘has as an element the use, attempted use, or threatened use of physical force against the person of another.'” United States v. Moore, 711 Fed.Appx. 757, 759 (5th Cir. 2017) (quoting section 924(e)(2)(B)).

         To determine whether White is entitled to relief under Johnson, the Court must ascertain whether the sentencing court relied on the residual clause of the ACCA. See United States v. Wiese, 896 F.3d 720, 724 (5th Cir. 2018), petition for cert. filed (Dec. 26, 2018) (No. 18-7252). If the sentencing court relied on the residual clause, then Johnson provides a jurisdictional predicate to consider the merits of the motion. See Id. If the sentencing court relied on the elements clause or if the conviction was properly considered as an enumerated offense (i.e. burglary, arson, extortion, or use of explosives), then Johnson would not offer relief. See Id. In making this determination the Court “must look to the law in place at the time of sentencing to determine whether a sentence was imposed under the [] residual clause.” Id. (citations omitted). To examine whether there was potential reliance on the residual clause, the Court may examine (1) the sentencing record for direct evidence of a sentence, (2) the relevant legal environment existing at the time, (3) the presentence report, and (4) other materials available to the sentencing court. See Id. at 725 (citations omitted). While the Fifth Circuit has ...


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