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Cade v. United States

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

August 23, 2017

United States of America, RESPONDENT C/A No. 4:16-cv-02063-TLW


          Terry L. Wooten, Chief United States District Judge.

         This 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 Johnny Cade. For the reasons stated below, the Court grants the petition.

         I. Factual and Procedural History

         Petitioner pled guilty to being a felon in possession of a firearm and ammunition, and the Court sentenced him to 190 months (15 years, 10 months) incarceration on June 18, 2008. ECF No. 75. 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).[1] His ACCA predicates were South Carolina convictions for (1) Failure to Stop for a Blue Light (October 29, 1993); (2) Burglary 2nd (October 29, 1993); (3) Burglary 3rd (October 29, 1993); (4) Burglary 2nd (March 14, 1996); and (5) Assault and Battery of a High and Aggravated Nature (January 25, 2001). PSR ¶¶ 21-23. He did not file a direct appeal.

         On or about October 14, 2010, Petitioner filed a pro se petition under 28 U.S.C. § 2255, which this Court dismissed on the merits after briefing. ECF Nos. 81, 96. He filed a direct appeal, but the Fourth Circuit dismissed the appeal for failure to prosecute. United States v. Cade, No. 12-7740 (4th Cir.), ECF No. 7.

         On or about May 27, 2016, as required by 28 U.S.C. § 2244, Petitioner filed a 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 Cade, No. 16-967 (4th Cir.), ECF No. 2. On June 21, 2016, the Fourth Circuit granted his motion, authorizing him to file a successive § 2255 petition. Id., ECF No. 9-2. His § 2255 petition was docketed in this Court that day. ECF No. 107.

         In Petitioner's § 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. 114. The Court then directed the U.S. Probation Office to prepare a revised PSR, which it did. ECF Nos. 115, 116. 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. 118.

         The 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. 123. 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. 125, 126, 128, 129. With briefing finally complete, the Court held a hearing on the matter and took it under advisement. This matter is now ripe for decision.

         II. 28 U.S.C. § 2255

         Title 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).

         III. Discussion

         The 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 follows:

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 ...

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