United States District Court, D. South Carolina, Florence Division
L. Wooten Chief United States District Judge
matter comes before the Court for consideration of the pro se
petition to vacate, set aside, or correct a sentence pursuant
to 28 U.S.C. § 2255 filed by Petitioner Norman Tyrone
Dais. For the reasons stated below, the Court grants the
Factual and Procedural History
Petitioner pled guilty to being a felon in possession of a
firearm and ammunition, and the Court sentenced him to 294
months (24½ years) incarceration on August 31, 2004.
ECF No. 52. He was sentenced as an armed career criminal
under the Armed Career Criminal Act (ACCA), which imposes a
mandatory minimum fifteen-year sentence on a felon who
possesses a firearm and who has three or more prior
convictions for committing certain drug crimes or
“violent felon[ies].” 18 U.S.C. §
924(e)(1). His ACCA predicates were South Carolina
convictions for (1) Burglary (October 3, 1986); (2) Burglary
Second (January 13, 1988 (offense date November 6, 1987));
and (3) Burglary Second (January 13, 1988 (offense date
November 11, 1987)); (4) Burglary Second (December 18, 1991
(offense date October 14, 1991); and (5) Burglary Second
(December 18, 1991 (offense date October 29, 1991)).
See PSR ¶¶ 27, 28, 29. He filed a direct
appeal challenging his classification as an armed career
criminal, but the Fourth Circuit affirmed his conviction and
sentence. United States v. Dais, 178 F. App'x
253 (4th Cir. 2006). He did not file a petition for a writ of
certiorari from the Supreme Court.
October 19, 2006, Petitioner filed a pro se petition under 28
U.S.C. § 2255, but after briefing was complete, he
withdrew with prejudice the petition. ECF Nos. 67, 147.
April 17, 2009 and May 9, 2009, he filed two more pro se
§ 2255 petitions, but he then withdrew those petitions.
ECF Nos. 151, 153, 154.
September 5, 2013, he filed another pro se § 2255
petition (at the Court's direction, the clerk filed the
initial petition and a later motion to amend as a single
amended petition), but the Court dismissed the petition as
successive. ECF Nos. 234, 238, 253, 271.
December 18, 2015, he filed another pro se § 2255
petition, which the Court also dismissed as successive. ECF
Nos. 297, 299.
about April 26, 2016, as required by 28 U.S.C. § 2244,
Petitioner filed a pro se motion in the Fourth Circuit
requesting authorization to file a successive § 2255
petition to seek resentencing in light of Johnson v.
United States, 135 S.Ct. 2551 (2015). In re
Dais, No. 16-456 (4th Cir.), ECF No. 2. On May 24, 2016,
the Fourth Circuit granted his motion, authorizing him to
file a successive § 2255 petition. Id., ECF No.
7-2. His § 2255 petition was docketed in this Court that
day. ECF No. 313.
Petitioner's pro se § 2255 petition, he seeks to be
resentenced without the ACCA enhancement in light of
Johnson. Id. The Government initially filed
a response in support, stating that he is no longer an armed
career criminal and is entitled to be resentenced. ECF No.
327. The Court then directed the U.S. Probation Office to
prepare a revised PSR, which it did. ECF Nos. 328, 339. The
Court then directed the parties to brief the question of the
retroactivity of Mathis v. United States, 136 S.Ct.
2243 (2016) and to address the impact of 28 U.S.C. §
2255(h)(2) on this successive petition. ECF No. 344.
Government then changed its position, filing a response in
opposition based on its assertion that Petitioner is not
entitled to relief because the Court cannot consider this
successive petition. ECF No. 350. After the parties filed
their briefs, but prior to the Court holding a hearing on the
matter, the Fourth Circuit issued its opinion in United
States v. Winston, 850 F.3d 677 (4th Cir. 2017), which
resulted in another round of briefing, ECF Nos. 362, 366,
367. With briefing finally complete, the Court held a hearing
on the matter and took it under advisement.
matter is now ripe for decision.
28 U.S.C. § 2255
28, Section 2255 of the United States Code provides that a
prisoner in custody under sentence of a federal court may
file a petition in the court that imposed the sentence to
vacate, set aside, or correct the sentence. A petitioner is
entitled to relief under § 2255 if he proves by a
preponderance of the evidence one of the following: (1) that
the sentence was imposed in violation of the Constitution or
laws of the United States; (2) that the court was without
jurisdiction to impose such sentence; (3) that the sentence
was in excess of the maximum authorized by law; or (4) that
the sentence is otherwise subject to collateral attack.
See 28 U.S.C. § 2255(a); Miller v. United
States, 261 F.2d 546, 547 (4th Cir. 1958) (per curiam).
ACCA provides that a defendant convicted of being a felon in
possession with three prior convictions for “a violent
felony or a serious drug offense” faces a mandatory
minimum of 15 years incarceration. 18 U.S.C. §
924(e)(1). “Violent felony” is defined 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 ...