United States District Court, S.D. Georgia, Dublin Division
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNI LED STALES MAGISTRATE JUDGE
an inmate at the Federal Correctional Institution in Jesup,
Georgia, after receiving permission from the Eleventh Circuit
Court of Appeals, has filed with this Court a second motion
under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence. For the reasons set forth below, the Court
REPORTS and RECOMMENDS the § 2255 motion be DENIED
without an evidentiary hearing or appointment of counsel,
this civil action be CLOSED, and a final judgment be ENTERED
in favor of Respondent.
Indictment and Agreement to Plead Guilty
6, 2012, the grand jury in the Southern District of Georgia
charged Petitioner under the Armed Career Criminal Act
(“ACCA”) with one count of possession of a
firearm and ammunition by a convicted felon, in violation of
18 U.S.C. §§ 922(g)(1), 922(g)(9), and 924(e).
United States v. Walker, CR 312-002, doc. no. 1
(S.D. Ga. June 6, 2012) (hereinafter “CR
312-002”). The Court appointed attorney Charles C.
Butler under the Criminal Justice Act to represent
Petitioner. Id., doc. no. 24.
August 16, 2012, Petitioner appeared with counsel before
United States District Judge Dudley H. Bowen, Jr., and pled
guilty to the single-count indictment. Id., doc.
nos. 31-33. In exchange for the guilty plea, the government
agreed to (1) not oppose a two-point acceptance of
responsibility reduction and move for an additional one-point
reduction under U.S.S.G. § 3E1.1(b); and (2) consider
filing a motion, based on any “substantial
assistance” provided by Petitioner, for downward
departure under U.S.S.G. § 5K1.1 or a reduction of
Petitioner's sentence under Fed. R. Crim. P. 35.
Id., doc. no. 32, pp. 2-3.
part, Petitioner admitted the factual basis for his guilty
plea, including “having been previously convicted of
crimes punishable by imprisonment for a term exceeding one
year, which include at least three violent felony offenses
committed on occasions different from one another. . . and
having been previously convicted of a misdemeanor crime of
domestic violence.” Id. at 7-8. The twelve
felonies and one misdemeanor listed in the plea agreement are
the same crimes listed in count one of the indictment, and
include three burglaries, obstruction of a law enforcement
officer by violence, armed robbery, and aggravated assault.
CR 312-002, doc. no. 1, pp. 1-2; doc. no. 32, pp. 7-8. As
part of the plea agreement, Petitioner also agreed to waive
the right to file a direct appeal and the right to
collaterally attack his conviction and sentence unless his
sentence exceeded the statutory maximum, the sentencing court
upwardly departed from the advisory Guideline range, or the
government appealed the sentence. Id., doc. no. 32,
the change of plea hearing, Judge Bowen established
Petitioner's competence to enter a guilty plea if he so
desired. Id., doc. no. 44 (“Rule 11
Tr.”), pp. 19-22. Petitioner also testified under oath
that he was satisfied with the services rendered by Mr.
Butler. Id. at 22. Judge Bowen reviewed the charge
and heard a factual basis for Petitioner's guilty plea
from Special Agent Tyra Cunningham with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives. Id. at
23, 27-30. SA Cunningham testified as to the circumstances of
Petitioner's arrest which led to discovery of the firearm
and ammunition, as well as Petitioner's twelve prior
felony convictions and a misdemeanor conviction as delineated
in the indictment and plea agreement. Id. at 27-29.
Petitioner affirmed the testimony of SA Cunningham was
factually correct as to his possession of the firearm and
ammunition, and he confirmed his prior twelve felony
convictions. Id. at 30-32.
entry of the guilty plea, the United States Probation Office
prepared a Presentence Investigation Report
(“PSI”). As explained in the PSI, Petitioner had
“at least three prior convictions for a violent felony
or serious drug offense, or both, which were committed on
different occasions.” PSI ¶ 18. The PSI went on to
detail three burglaries (PSI ¶¶ 23-25), obstruction
of a law enforcement officer by violence (PSI ¶ 29),
armed robbery (PSI ¶ 30), and aggravated assault (PSI
¶ 31) - all of which were listed in the indictment and
plea agreement. CR 312-002; doc. no. 1; doc. no. 32. The PSI
calculated a total offense level of thirty, a criminal
history category of VI, and an advisory Guideline range of
168 to 210 months of imprisonment. PSI ¶¶ 21, 34,
35, 53. However, because Petitioner was categorized as an
armed career criminal within the meaning of U.S.S.G. §
4B1.4, the Guideline sentencing range was set at the
statutorily required minimum of 180 months (fifteen years) to
210 months. PSI ¶¶ 18, 53; 18 U.S.C. § 924(e).
Petitioner did not file any objections to the PSI.
See PSI Add.; CR 312-002, doc. no. 43, (“Sent.
Tr.”), p. 3.
sentencing on February 13, 2013, Judge Bowen adopted the
factual statements and Guideline recommendation, noting in
particular the “very, very significant” statutory
penalty of fifteen years to life in prison because of the
application of the ACCA. Sent. Tr., pp. 3-4. Judge Bowen
verified Petitioner understood the ACCA limited the
availability of leniency in sentencing, and Petitioner's
counsel explained the ACCA moved Petitioner's sentencing
range under the advisory Guidelines had moved from a minimum
of 168 months to 180 months. Id. at 5. Petitioner
never voiced any objection to the delineation of his prior
felony convictions in the PSI or to the applicability of the
ACCA. Judge Bowen sentenced Petitioner to a term of
imprisonment of 180 months, to be served consecutively to the
revoked probation term Petitioner was serving for a Laurens
County Superior Court sentence. Id., doc. nos.
37-38. Judgment entered on February 15, 2013. Id.,
doc. no. 38.
with the plea agreement, Petitioner did not file a direct
appeal. Id., doc. no. 32. However, the Clerk of
Court docketed Petitioner's first § 2255 motion on
February 19, 2014. Id., doc. no. 41. As the Court
explained in ruling on that first motion, Petitioner's
claims for relief all related to his classification under the
ACCA, and were grouped as follows: (1) Petitioner's
underlying federal conviction for felon in possession of a
firearm and ammunition does not qualify as a crime of
violence, and therefore he should not be subject to an ACCA
sentence enhancement; (2) Petitioner's convictions for
battery, armed robbery, and aggravated assault do not qualify
as crimes of violence; and (3) Petitioner received
ineffective assistance of counsel at sentencing because no
objection was made to imposition of the ACCA sentencing
enhancement. See id., doc. no. 46.
Bowen denied the motion on April 13, 2015, finding the valid
collateral attack waiver in the plea agreement barred
Petitioner's claims, but even if the claims were not
barred, none of them had merit. Specific to the ACCA claims,
the Court determined: (1) Petitioner's underlying federal
felony conviction was not used as a predicate offense for the
ACCA enhancement, but rather only made him eligible for
sentencing under the ACCA if he had the requisite predicate
offenses; and (2) because Petitioner had not challenged the
continued viability of his three burglary convictions as ACCA
predicates, Petitioner was not entitled to relief.
Id., doc. nos. 46, 48.
26, 2015, the Supreme Court found the “residual
clause” of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii),
to be void for vagueness and a violation of the
Constitution's guarantee of due process. Johnson v.
United States, 576 U.S. -, 135 S.Ct. 2551, 2563 (2015).
In Welch v. United States, 578 U.S.-, 136 S.Ct.
1257, 1265 (2016), the Supreme Court held Johnson is
a substantive decision retroactive in cases on collateral
then sought and received permission from the Eleventh Circuit
Court of Appeals to file a second or successive § 2255
motion asserting one claim that his sentence under the ACCA
was unconstitutionally vague. (Doc. no. 1, Ex. A.) The
Eleventh Circuit noted Petitioner had prior convictions for
burglary, obstruction of an officer with threats of violence,
terroristic threats and acts, armed robbery, kidnapping, and
aggravated assault. (Id. at 2.) Yet, Petitioner
still made a prima facie showing for filing a second
§ 2255 motion because (1) “[i]t is unclear which
prior felonies were used to enhance [Petitioner's]
sentence under the ACCA”; and (2) at the time of the
request to file a second § 2255 motion it was unclear
whether any of Petitioner's prior Georgia convictions,
other than the conviction for obstruction of an officer with
threats of violence, would qualify as predicates under the
ACCA's enumerated offenses or elements clauses
post-Johnson. (Id. at 3.) The Eleventh
Circuit cautioned, however, it made a limited determination
to allow the filing of a second motion, and because no merits
had been conclusively resolved by simply allowing the motion
to be filed, this Court did not owe deference to the
prima facie finding. (Id. at 4.)
argues that even after Johnson, Petitioner's
sentence is valid because he has three burglary convictions
that qualify as predicate convictions under the enumerated
offenses portion of the ACCA's violent felony definition.
(See doc. no. 3, pp. 4-9.) Moreover,
Petitioner's three convictions for armed robbery,
aggravated assault, and obstruction of a law enforcement
officer with violence also qualify, post-Johnson,
under the elements portion of the ACCA's definition of
violent felony. (Id. at 9-12.) As these six
predicate offenses are more than sufficient to satisfy the
requirement of three predicate offenses to impose the ACCA
sentencing enhancement, see 18 U.S.C. §
924(e)(1), Respondent argues Petitioner's § 2255
motion should be denied. (Id. at 12.)