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Davis v. United States

United States District Court, D. South Carolina, Columbia Division

September 1, 2016

Lamont Terrell Davis, Defendant-Petitioner
v.
United States of America, Plaintiff-Respondent.

          OPINION AND ORDER

          CAMERON MCGOWAN CURRIE Senior United States District Judge

         Defendant, 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.

         I. Background

         On July 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.

         A 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.

         Defendant 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 purposes.[1]

         On 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.[2]This court's decision was affirmed by the Fourth Circuit on August 16, 2012. ECF No. 76.

         Defendant 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.[3]

         On June 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).

         On 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.

         On June 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 No. 4.

         On 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.

         Prior 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 No. 100.

         II. The ACCA

         A 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 . . . .

         As is relevant to this case, the statute defines “violent felony” as

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, ...

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