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Martin v. United States

United States District Court, E.D. Arkansas, Western Division

May 16, 2017

EDGAR KEATON MARTIN, PETITIONER
v.
UNITED STATES, RESPONDENT

          OPINION AND ORDER

          J. LEON HOLMES UNITED STATES DISTRICT JUDGE

         After receiving authorization by the Eighth Circuit, Edgar Keaton Martin has filed a second or successive habeas petition under 28 U.S.C. § 2255. In 2009, a jury convicted Martin of possessing a firearm after having previously been convicted of a felony in violation of 18 U.S.C. § 922(g)(1). Martin had a lengthy prior conviction record. The presentence report, which the Court adopted, concluded that Martin's prior convictions subjected him to sentencing as an armed career criminal under 18 U.S.C. § 924(e). The Armed Career Criminal Act imposes a mandatory minimum sentence of 15 years if a section 922(g) offender has three prior convictions for a “violent felony or serious drug offense.” Id. § 924(e)(1). The portion of the Act relevant here defines “violent felony” as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Id. § 924(e)(2)(B)(i). A conviction under section 922(g)(1) otherwise carries a 10-year maximum. Id. § 924(a)(2). The Court sentenced Martin to 188 months' imprisonment.

         Martin concedes that he had two prior convictions for violent felonies: one count of aggravated robbery as reflected in paragraph 27 of the presentence report and one count of aggravated assault as reflected in paragraph 28 of the presentence report. He denies, however, that his other convictions constitute violent felonies.

         Martin has two prior convictions for first-degree terroristic threatening in Arkansas. He contends that those convictions do not count as violent felonies; the United States contends that they do. The Arkansas statute provides as follows:

(a)(1) A person commits the offense of terroristic threatening in the first degree if:
(A) With the purpose of terrorizing another person, the person threatens to cause death or serious physical injury or substantial property damage to another person; or
(B) With the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to a teacher or other school employee acting in the line of duty.
(2) Terroristic threatening in the first degree is a Class D felony.
(b)(1) A person commits the offense of terroristic threatening in the second degree if, with the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to another person.
(2) Terroristic threatening in the second degree is a Class A misdemeanor.

Ark. Code Ann. § 5-13-301. The issue here concerns subsection (a)(1)(A): whether the inclusion of “substantial property damage” in the list of proscribed threats removes a conviction under this section from the definition of “violent felony” in the Armed Career Criminal Act.

         After Martin was sentenced, the Supreme Court decided Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). Johnson declared the residual clause of the Armed Career Criminal Act unconstitutionally vague. Id. at 2557. The Supreme Court later held that Johnson retroactively applies to cases on collateral review in Welch v. United States, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016). Martin argues in his petition that as a result of these cases he is not an armed career criminal, and, therefore, his sentence is unlawful.

         To determine whether a prior conviction is a violent felony under the Armed Career Criminal Act, courts undertake the categorical approach. Descamps v. United States, 133 S.Ct. 2276, 2281, 186 L.Ed.2d 438 (2013). The task is to compare the elements of the statute that is the basis of the prior conviction with the elements of the “generic crime.” Id. If the statute, by its elements, criminalizes a broader range of conduct than the generic crime, then the prior conviction associated with the broader statute does not qualify as a violent felony. Id. If the statute seems overbroad but is divisible-i.e., one or more elements of the offense are set out in the alternative-the analysis goes further. Id. Courts then use a modified categorical approach in which they look to a narrow range of materials to determine which alternative the defendant was convicted of violating, and then compare the elements of that alternative to the elements of the generic crime.

         With reference to cases such as this one, where the statute contains ...


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