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 Reginald Devon
Graham. For the reasons stated below, the Court grants the
Factual and Procedural History
Petitioner was convicted at trial of being a felon in
possession of a firearm and ammunition, and the Court
sentenced him to 204 months (17 years) incarceration on May
9, 2005. ECF No. 35. 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 convictions for
(1) South Carolina Burglary 3rd (January 21, 1997 (offense
date November 22, 1995)); (2) South Carolina Burglary 3rd
(January 21, 1997 (offense date November 4, 1995)); and (3)
North Carolina Breaking and Entering (December 13, 2002).
See Revised PSR ¶¶ 35, 36, 38. He filed a
direct appeal, but the Fourth Circuit summarily affirmed his
conviction and sentence. United States v. Graham,
No. 05-4580 (4th Cir.), ECF No. 64. He filed a petition for a
writ of certiorari, which the Supreme Court denied.
Graham v. United States, 549 U.S. 984 (2006).
October 3, 2007, Petitioner filed a pro se petition under 28
U.S.C. § 2255, which this Court dismissed on the merits
after briefing. ECF Nos. 50, 65. He did not file a direct
about May 10, 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
Graham, No. 16-660 (4th Cir.), ECF No. 2. On May 27,
2016, the Fourth Circuit granted his motion, authorizing him
to file a successive § 2255 petition. Id., ECF
No. 6-2. His § 2255 petition was docketed in this Court
that day. ECF No. 78.
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.
82. The Court then directed the U.S. Probation Office to
prepare a revised PSR, which it did. ECF Nos. 84, 85. 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. 87.
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. 92. 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. 94, 97, 98.
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 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, or otherwise involves conduct that presents a
serious potential ...