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United States v. Haney

United States District Court, W.D. Arkansas, Fort Smith Division

February 3, 2017

UNITED STATES OF AMERICA PLAINTIFF/RESPONDENT
v.
MICHAEL GENE HANEY DEFENDANT/PETITIONER

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          HONORABLE MARK E. FORD UNITED STATES MAGISTRATE JUDGE

         Before the Court is Defendant/Petitioner's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody filed on March 14, 2016. (Doc. 34) The United States filed a response on April 15, 2016. (Doc. 37) On June 14, 2016, Bruce D. Eddy, Federal Public Defender for the Western District of Arkansas, entered his appearance on Defendant/Petitioner's behalf. (Doc. 39) Defendant/Petitioner filed a pro se reply on June 23, 2016. (Doc. 40) Counsel for Defendant/Petitioner also filed a Memorandum in Support of Motion Under 28 U.S.C. § 2255 on June 23, 2016. The matter is ready for report and recommendation.

         I. Background

         On March 19, 2014, Defendant/Petitioner, Michael Gene Haney (“Haney”), was named in an Indictment charging him unlawful possession of a firearm by a convicted felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). (Doc. 1) Haney was arrested on April 4, 2014, and he appeared for arraignment before the Hon. James R. Marschewski, Chief United States Magistrate Judge, on April 10, 2014, at which time Haney entered a not guilty plea to the Indictment. (Doc. 10) James B. Pierce (“Pierce”), Assistant Federal Public Defender, was appointed to represent Haney. (Docs. 10, 12)

         On June 5, 2014, Haney appeared before Judge Marschewski for a change of plea hearing. (Doc. 19) Pursuant to a written Plea Agreement (Doc. 20), Haney pleaded guilty to the Indictment charging him with being a felon in possession of a firearm. (Docs. 19, 20) A Report and Recommendation that Haney's guilty plea be accepted and the Plea Agreement tentatively approved, subject to final approval at sentencing, was filed by Judge Marschewski on June 5, 2014. (Doc. 22) Haney also executed a Waiver of Objections to Report and Recommendation on June 5, 2014. (Doc. 21) An Order adopting the Magistrate Judge's Report and Recommendation was entered by the Honorable P. K. Holmes, Chief United States District Judge, on June 6, 2014. (Doc. 23)

         An initial Presentence Investigation Report (“PSR”) was prepared on August 20, 2014. (Doc. 25) In it, Haney's criminal conduct resulted in a base offense level of 24 pursuant to U.S.S.G. § 2K2.1(a)(2). (Doc. 25, ¶ 21) Pursuant to U.S.S.G. § 2K2.1(b)(6)(B), a four-level enhancement was assessed as Haney possessed the firearm in connection with another felony offense, namely, possession of methamphetamine. (Doc. 25, ¶ 22) Since Haney was subject to an enhanced penalty pursuant to 18 U.S.C. § 924(e), he was considered an armed career criminal within the meaning of U.S.S.G. § 4B1.4(b)(3)(B), which elevated his offense level to 33. (Doc. 25, ¶ 27) After a reduction of three levels for acceptance of responsibility, Haney's total offense level was determined to be 30. (Doc. 25, ¶¶ 28-30)

         Haney was found to have 20 criminal history points, placing him in criminal history category VI. (Doc. 25, ¶ 78) Because Haney was determined to be an armed career criminal, the statutory minimum term of imprisonment was 15 years, and the statutory maximum term of imprisonment was life[1]. (Doc. 2; Doc. 25, ¶ 125) Based on a total offense level of 30 and a criminal history category of VI, the advisory guideline range for imprisonment was 168 to 210 months; but, because Haney faced a mandatory minimum sentence of 15 years as an armed career criminal, the guideline range for imprisonment was adjusted to 180 to 210 months. (Doc. 25, ¶ 126) Absent the armed career criminal finding, the statutory maximum for the offense of conviction would have been not more than 10 years imprisonment. (Doc. 2; Doc. 25, ¶ 125)

         The United States advised that it had no objections to the PSR. (Doc. 27) Haney made one objection to a typographical error in the PSR. (Doc. 26) A correction was made by the Probation Officer. (Doc. 28-1) A final PSR was submitted to the Court on September 24, 2014. (Doc. 28)

         Haney appeared for sentencing on October 16, 2014. (Doc. 30) The Court made inquiry that Haney was satisfied with his counsel; the PSR was reviewed in open court, amended as to supervised release, and adopted; final approval of the plea agreement was expressed; counsel and Haney were afforded the opportunity to make statements; and, the Court imposed a low-end guidelines sentence of 180 months imprisonment, three years supervised release, no fine, and a $100.00 special assessment. (Doc. 30) Judgment was entered by the Court on October 16, 2014. (Doc. 31)

         Over one year later, Haney filed a Notice of Appeal Untimely on November 6, 2015. (Doc. 33) In it, Haney alleged that he told his counsel at the time of sentencing that he wanted to appeal his sentence based on the fact that his prior convictions did not justify his classification as an armed career criminal; that his counsel told him he would do so; but, that it had not been done. On November 9, 2015, the Court, by Text Only Order, denied the motion to the extent it may be construed as a motion for extension of time to file a notice of appeal, and the Court directed the Clerk to provide Haney with a § 2255 form.

         On March 14, 2016, Haney filed his pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody. (Doc. 34) Haney's motion cites the United States Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and he vaguely argues that “the application of the ACCA enhancement is no longer valid.” (Doc. 34, p. 5)

         The United States' response to the motion was filed on April 15, 2016. (Doc. 37) The United States argued that Haney's two prior convictions for robbery, his prior conviction for first degree battery, and his prior conviction for second degree battery all still served as “violent felonies” under the ACCA as each of these convictions “has as an element the use, attempted use, or threatened use of physical force against the person of another.”

         Haney filed a pro se reply on June 23, 2016. (Doc. 40) His counsel also filed a Memorandum in Support of Motion Under 28 U.S.C. § 2255 on June 23, 2016. (Doc. 41)

         II. Discussion

         “A prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b). A thorough review of Haney's § 2255 motion, the United States' response, and the files and records of this case conclusively show that Haney is entitled to relief under Johnson, and the undersigned recommends that his motion pursuant to § 2255 (Doc. 28) be granted, his sentence be vacated, and that Haney be re-sentenced without his Arkansas robbery convictions serving as predicates for ACCA enhancement.

         A. Johnson, Welch, and the Residual Clause of the ACCA

         Federal law prohibits certain people, including convicted felons, from shipping, possessing, and receiving firearms. 18 U.S.C. § 922(g). Violation of this law generally results in punishment up to 10 years' imprisonment. 18 U.S.C. § 924(a)(2). If the offender has three or more previous convictions for a “violent felony” or a “serious drug offense, ” the Armed Career Criminal Act (“ACCA”) imposes a 15-year mandatory minimum sentence and a maximum of life. 18 U.S.C. § 924(e)(1).

         The ACCA defines the term “violent felony” as a crime punishable by a term of imprisonment exceeding one year 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) (emphasis added). Subsection (i) above is referred to as the “force” clause of the ACCA. See United States v. Fogg, 836 F.3d 951, 954 (8th Cir. 2016). The italicized portion of subsection (ii) above is known as the “residual” clause of the ACCA. See James v. United States, 550 U.S. 192, 197, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007) (question of whether attempted burglary, as defined by Florida law, fell within the ACCA's residual provision for crimes that “otherwise involv[e] conduct that presents a serious potential risk of physical injury to another”).

         On June 26, 2015, the United States Supreme Court ruled in Johnson that the residual clause of the ACCA was unconstitutionally vague. Johnson, 135 S.Ct. at 2563. On April 18, 2016, the Supreme Court decided in Welch v. United States, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016) that its ruling in Johnson announced a new substantive rule that applied retroactively on collateral review.

         The United States contends the Johnson rule is inapplicable to Haney's ACCA-enhanced sentence on the basis that his prior convictions fall within the scope of the “force” clause of 18 U.S.C. § 924(e)(2)(B)(i). Haney denies his prior convictions meet the requirements of the “force” clause, points out they are not among the “enumerated offenses” in § 924(e)(2)(B)(ii), and he argues they cannot be considered under the now invalid “residual” clause.

         B. Timeliness

         A one year period of limitation applies to motions under 28 U.S.C. § 2255. ...


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