United States District Court, W.D. Louisiana, Lake Charles Division
KATHLEEN KAY MAGISTRATE JUDGE
G. JAMES UNITED STATES DISTRICT JUDGE
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.
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].
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].
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).
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]. 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,
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.
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.
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).
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)).
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 ...