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White v. United States

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

October 4, 2017

Jimmy Lee White, Jr., Petitioner,
v.
United States of America, Respondent. Civil Action No. 4:16-cv-00668-RBH

          ORDER

          R. BRYAN HARWELL, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's [ECF No. 60] motion to vacate pursuant to 28 U.S.C. § 2255. Relying on Johnson v. United States, 135 S.Ct. 2551 (2015), Petitioner argues he was improperly classified as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e).

         On June 5, 2017, the government filed a response and motion to dismiss arguing Petitioner was not entitled to relief because he procedurally defaulted his claim. The government also argues Petitioner has three predicate offense which continue to qualify him as an armed career criminal. At issue in this case is whether Petitioner's prior conviction for voluntary manslaughter in South Carolina qualifies as a violent felony under the force clause of 18 U.S.C. § 924(e). For the reasons stated below, the Court grants Respondent's motion to dismiss, dismisses Petitioner's motion to vacate, and dismisses this case with prejudice.[1]

         Procedural History

         On December 7, 2011, Petitioner pled guilty to felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The Presentence Investigation Report prepared by the U.S. Probation Office determined that Petitioner's advisory guideline range was 180 to 188 months imprisonment. A sentencing hearing was held on March 8, 2012. At sentencing, the Court sentenced Petitioner to 180 months imprisonment. The judgment was entered on March 9, 2012.

         Petitioner filed a notice of appeal on March 19, 2012. The Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence on August 8, 2012. The Mandate and Judgment were entered on March 30, 2012.

         Petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255 on March 2, 2016.

         Applicable Law

         Prisoners in federal custody may attack the validity of their sentences pursuant to 28 U.S.C. § 2255. In order to move the court to vacate, set aside, or correct a sentence under § 2255, a petitioner must prove that one of the following occurred: (1) a sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such a sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “The writ of habeas corpus and its federal counterpart, 28 U.S.C. § 2255, ‘will not be allowed to do service for an appeal.' (internal citation omitted). For this reason, nonconstitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings. (internal citations omitted) Even those nonconstitutional claims that could not have been asserted on direct appeal can be raised on collateral review only if the alleged error constituted ‘a fundamental defect which inherently results in a complete miscarriage of justice'”. Stone v. Powell, 428 U.S. 465, n. 10 (1976); see also United States v. Boyd, No. 02-6242, 2002 WL 1932522, at *1 (4th Cir Aug. 22, 2002) (“Non-constitutional claims that could have been raised on direct appeal . . . may not be raised in a collateral proceeding under § 2255.”).

         Discussion

         Petitioner argues he was improperly designated an armed career criminal under ACCA. Specifically, Petitioner argues his prior conviction for voluntary manslaughter in South Carolina does not qualify as a violent felony after Johnson. The government responds that Petitioner has procedurally defaulted this claim. The government also argues that Petitioner's prior conviction for voluntary manslaughter continues to qualify as a “violent felony” under the force clause, 18 U.S.C. § 924(e)(2)(B)(i).

         Title 18 U.S.C. § 924(e), often referred to as the Armed Career Criminal Act (“ACCA”), provides for a mandatory minimum sentence of 15 years for any person convicted of possessing a firearm in violation of 18 U.S.C. § 922(g) provided that person has three previous convictions for a “violent felony” or a “serious drug offense.” 18 U.S.C. § 924(e)(1). Petitioner concedes that he has two prior convictions for distribution of crack cocaine that qualify as serious drug offenses under ACCA. The question in this case is whether Petitioner's prior conviction for voluntary manslaughter in South Carolina qualifies as a violent felony.

         The term “violent felony” is defined in the ACCA 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 risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B). Subsection (i) is referred to as the “force clause.” Subsection (ii), which references “burglary, arson, or extortion, involves use of explosives, ” is referred to as the “enumerated clause.” Of course, the phrase “otherwise involves conduct that presents a serious potential risk of physical injury to another, ” referred to as the “residual clause, ” was struck down as unconstitutionally vague in Johnson. To determine whether Petitioner remains subject to the 15 year mandatory minimum of the ACCA, the Court must consider whether voluntary manslaughter qualifies as a violent felony under the “force clause.” In other words, the Court must resolve whether voluntary manslaughter “has an element the use, attempted use, or threatened use of physical force against the person of another.”

         To determine whether a state crime qualifies as a violent felony under the ACCA's force clause, the Court must apply the categorical approach described by the Supreme Court in Descamps v. United States, --- U.S. __, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). Under the categorical approach, the Court considers whether the state crime at issue has as an element the “use, attempted use, or threatened use of physical force against the person of another” and does not consider the particular facts underlying the defendant's conviction. Descamps, 133 S.Ct. at 2283 (citing Taylor v. United States, 495 U.S. 575, 600, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990)). The Supreme Court has defined the term “physical force” as used in the ACCA as ...


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