United States District Court, D. South Carolina, Columbia Division
OPINION AND ORDER
CAMERON MCGOWAN CURRIE Senior United States District Judge
through his attorney, seeks relief pursuant to 28 U.S.C.
§ 2255. ECF No. 100. The Government filed a motion to
dismiss or for summary judgment, as well as an opposition to
Defendant's § 2255 motion. ECF Nos. 104, 105. On
July 15, 2016, Defendant filed a response in opposition to
the Government's motion for summary judgment as well as a
cross motion for summary judgment. ECF Nos. 106, 107.
19, 2011, Defendant was indicted for felon in possession of a
firearm, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e). ECF No. 1. On October 17, 2011,
Defendant entered into a written plea agreement to plead
guilty to the charge. ECF No. 32. As a part of the plea
agreement, Defendant waived his direct appeal rights and his
right to file a motion for relief under § 2255 except as
to claims of ineffective assistance of counsel and/or
prosecutorial misconduct. The same day, Defendant appeared
before the court and after a thorough Rule 11 hearing,
entered a guilty plea to felon in possession.
Pre-Sentence Report (PSR) concluded Defendant was an armed
career criminal under the Armed Career Criminal Act
(“ACCA”) and faced a mandatory minimum term of
imprisonment of fifteen (15) years and a maximum term of life
imprisonment. The PSR found that Defendant's prior
convictions for Possession with Intent to Distribute Cocaine
(1999) and Possession with Intent to Distribute Crack Cocaine
within a ½ mile proximity of a school (2005) were
serious drug offenses, and qualified as predicate convictions
for ACCA purposes. A prior conviction for Resisting Arrest
with Assault on an officer was found to be a “violent
felony offense” that qualified as a predicate
conviction for the ACCA as well. See PSR
¶¶ 34, 41, 42, ECF No. 40.
objected to the resisting arrest with assault on an officer
conviction counting as a predicate conviction for the ACCA.
Defense counsel's objection stated that he was unable to
determine which portion of the statute Defendant was
convicted under: the lesser charge of resisting or the more
serious charge of assault on an officer while resisting. ECF
No. 40-1. The Probation Officer noted that Defendant was
convicted of S.C. Code § 16-9-320(B), the subsection for
resisting with assault on an officer, instead of subsection
(A), the lesser included offense. Therefore, the Probation
Officer included this offense as a violent felony for ACCA
March 7, 2012, Defendant appeared for sentencing. The court
overruled Defendant's objections and sentenced him to 262
months' imprisonment. Defendant appealed his sentence,
arguing that the district court erred by denying him a
reduction for acceptance of responsibility.This court's
decision was affirmed by the Fourth Circuit on August 16,
2012. ECF No. 76.
filed a §2255 motion on April 8, 2013, arguing that 18
U.S.C. § 3231, the federal criminal jurisdiction
statute, is unconstitutional and the Government had no
jurisdiction to prosecute him. ECF No. 78. Finding that
Defendant's argument was “wholly frivolous and
foreclosed by law, ” the court granted the
Government's motion to dismiss or for summary judgment
and dismissed Defendant's § 2255 motion with
prejudice. ECF No. 85.
27, 2013, the Fourth Circuit docketed an appeal from the
denial of Defendant's § 2255 motion. No. 13-7015.
After Defendant failed to file an informal brief, that appeal
was dismissed for failure to prosecute. No. 13-7015, ECF No.
5 (4th Cir. Aug. 22, 2013).
March 31, 2014, Defendant filed a Petition for Writ of Habeas
Corpus pursuant to 28 U.S.C. § 2241. Davis v.
Warden, No. 5:14-188-WTH-PRL (M.D. Fl. Mar. 31, 2014).
Defendant argued that he pled guilty to a non-violent
offense, resisting arrest with assault, which should not have
been counted as a “violent felony” under the
ACCA. No. 5:14-188-WTH-PRL, ECF No. 1. However, on May 19,
2016, Defendant's § 2241 petition was
“dismissed without prejudice to his filing an
application for leave to file a second or successive motion
in the sentencing court under 28 U.S.C. § 2255.”
No. 5:14-188-WTH-PRL, ECF No. 18.
19, 2014, Defendant filed a § 2244 motion with the
Fourth Circuit for authorization to file a successive §
2255 motion. No. 14-299. Defendant argued that a new rule
announced in Alleyne v. United States, 570 U.S. __,
133 S.Ct. 2151 (2013), entitled him to relief because
“any element that increases the mandatory minimum [or
maximum] sentence must be found by a jury, or admitted by
defendant, must include ‘prior conviction.” No.
14-299, ECF No. 2 at 9. Defendant also argued that his
“state conviction for common law resisting arrest with
assault cannot serve as an ACCA predicate.”
Id. at 11. On July 1, 2014, the Fourth Circuit
denied Defendant's § 2244 motion. No. 14-299, ECF
October 26, 2015, Defendant again filed a § 2244 motion
with the Fourth Circuit, seeking authorization to file a
successive § 2255 motion. Defendant now argued that he
was entitled to relief under Johnson v. United
States, 576 U.S. __, 135 S.Ct. 2115 (2015), and his
prior conviction for resisting arrest should not qualify as a
predicate offense for ACCA purposes after the residual clause
was held unconstitutional. No. 15-388, ECF No. 2. His §
2244 motion was denied by the Fourth Circuit on May 3, 2016.
No. 15-388, ECF No. 7.
to filing the instant motion, Defendant filed another §
2244 motion with the Fourth Circuit. No. 16-9183. On June 21,
2016, he received permission to file a second or successive
motion under § 2255. ECF No. 99. The instant motion
under § 2255 was thereafter filed on June 21, 2016. ECF
conviction for felon in possession typically carries a
statutory maximum sentence of ten years in prison.
See 18 U.S.C. § 924(a)(2). However, if the
accused has three or more previous convictions for certain
types of felonies, he is subject to an enhanced minimum
sentence of fifteen years imprisonment with a maximum term of
life imprisonment. Title 18 U.S.C. § 924(e)(1) provides:
In the case of a person who violates section 922(g) of this
title and has three previous convictions by any court
referred to in section 922(g)(1) of this title for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be
fined under this title and imprisoned not less than fifteen
years . . . .
relevant to this case, the statute defines “violent
any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if
committed by an adult, 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, ...