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Delevie v. United States

United States District Court, M.D. Georgia, Columbus Division

June 26, 2019

RUSSELL DELEVIE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER AND REPORT AND RECOMMENDATION, 28 U.S.C. § 2255

          STEPHEN HYLES UNITED STATES MAGISTRATE JUDGE

         Presently pending before the Court is Petitioner's second motion to vacate his sentence under 28 U.S.C. § 2255 (ECF No. 66) and Respondent's motion to dismiss (ECF No. 79). For the reasons stated below, it is recommended that Respondent's motion be granted and Petitioner's motion to vacate be dismissed.

         BACKGROUND

         On February 12, 2013, Petitioner pled guilty to possession of a firearm by a convicted felon. Plea Agreement 3, ECF No. 25. Petitioner had prior felony convictions- two separate burglaries in 1997, and terroristic threats and stalking in 2008-that made him an “armed career criminal.” See Final Presentence Investigation Report (“PSR”) 8, 9, ECF No. 34. As such, Petitioner's sentence was enhanced in accordance with the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(2)(B). On August 30, 2013, Petitioner was sentenced to 188 months imprisonment and 60 months supervised release. Judgement 2, ECF No. 38. Petitioner waived his right to a direct appeal. Plea Agreement 4.

         On June 9, 2014, Petitioner filed his first motion to vacate his sentence.[1] (ECF No. 44.) This Court denied that motion on January 5, 2015. (ECF No. 51.) On June 13, 2016, the Eleventh Circuit Court of Appeals granted Petitioner's application to file a second or successive § 2255 motion. (ECF No. 64.) It reasoned that under Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016), “[t]he continued applicability of [Petitioner's] convictions for Georgia burglary as predicates under the ACCA is an open question[.]” 11th Cir. R. 5, ECF No. 64.

         Through counsel, Petitioner filed his second motion to vacate on June 25, 2016. (ECF No. 66.) Petitioner asserted that because his “Georgia burglary convictions do not qualify as valid predicate convictions for 18 U.S.C. 924(e), he should not have been adjudged an enhanced sentence under the [ACCA].” Second Mot. to Vacate 5, ECF No. 66. This Court stayed all filings pending the Eleventh Circuit's decisions in United States v. Gundy, 842 F.3d 1156 (11th Cir. 2016) and United States v. Heard, 677 Fed.Appx. 636 (11th Cir. 2017). After the Eleventh Circuit issued its decisions in those cases, Respondent moved to dismiss Petitioner's second motion on April 26, 2017. Mot. to Dismiss 5, ECF No. 79.

         DISCUSSION

         I. Respondent's Motion to Dismiss

         Respondent contends that Petitioner's motion to vacate should be dismissed because Petitioner “no longer has a cognizable claim concerning his prior Georgia burglary convictions following the Eleventh Circuit's decisions in Gundy and Heard.” Mot. to Dismiss 5. Respondent also asserts that Petitioner's new claims are time-barred as they do not relate back to the claim asserted in his motion to vacate, and, alternatively, that Petitioner has not demonstrated these convictions rested on the ACCA's residual clause. Resp't's Resp. 6, ECF No. 85. Petitioner responds he is entitled to relief because-even if his burglary convictions remain violent felonies under the ACCA-his other conviction of aggravated stalking and terroristic threats should not be considered a predicate offense. Pet.'s Resp. 3, ECF No. 84. Because Petitioner has failed to show his burglary or aggravated stalking and terroristic threats convictions were enhanced under the ACCA's residual clause, Respondent's motion to dismiss should be granted.

         II. Legal Standards

         A. § 2255(h)

         The Court of Appeals may authorize a second or successive motion to vacate so long as a petitioner asserts a claim of:

(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was ...

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