United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS, UNITED DISTRICT JUDGE.
before the Court are Objections to the Magistrate Judge's
Report and Recommendation (Doc. 38) filed by
Defendant/Petitioner Shane Willis. On May 2, 2016, Mr. Willis
filed a Motion to Vacate under 28 U.S.C. § 2255 (Doc.
30) requesting that the Court vacate his sentence and set it
for resentencing. The Government responded to the Motion to
Vacate on June 6, 2016 (Doc. 32), and Mr. Willis filed his
Reply on June 27, 2016. (Doc. 33). On April 4, 2018,
Magistrate Judge Wiedemann issued her Report and
Recommendation ("R&R"), recommending that Mr.
Willis' Motion be denied. See Doc. 37. Mr.
Willis filed his objections to the R&R on April 12, 2018.
Having considered the R&R and the objections thereto, the
Court now ADOPTS the R&R and
DENIES the Motion to Vacate.
November 14, 2012, the Defendant pleaded guilty to being a
felon in possession of a firearm, in violation of 18 U.S.C.
§ 922(g)(1). Pursuant to the Armed Career Criminal Act
(the "ACCA"), the Presentence Investigation Report
("PSR") provided for an enhancement because the
Defendant had four previous convictions for violent felonies:
residential burglary, terroristic threatening, second degree
battery, and second degree domestic battery. (Doc. 36
¶¶ 31-33, 35). Because he had at least three prior
convictions for violent felonies, what would have been a
10-year maximum sentence now became a fifteen-year minimum
sentence. 18 U.S.C. § 924(e)(1). He was subsequently
sentenced to 15 years imprisonment, and the Eighth Circuit
affirmed the sentence on appeal. (Doc. 29).
Willis now seeks to be resentenced, arguing that two of these
four convictions no longer qualify as violent felonies under
the ACCA and that the ACCA enhancement was thus improperly
applied. Mr. Willis first argues that his March 7, 2001
conviction for terroristic threatening no longer qualifies as
a predicate offense under the ACCA because it could only be
considered a crime of violence pursuant to the "residual
clause," which has been declared unconstitutionally
vague. See Johnson v. United States, 135 S.Ct. 2551,
2563 (2015). He further argues that his conviction for
residential burglary does not qualify as a violent felony
under extant Eighth Circuit law.
Judge Wiedemann's R&R found and recommended that Mr.
Willis' terroristic threatening conviction qualified as a
violent felony under the ACCA and, as a result, he had the
three predicate convictions necessary to trigger the ACCA
sentencing enhancement. The R&R also recommended denying
a certificate of appealability. Mr. Willis filed his
Objections, requesting that the Court decline to adopt the
R&R. (Doc. 38).
defendant makes specific objections to portions of a
magistrate judge's report and recommendation, the
district court must review the contested findings or
recommendations de novo. See 28 U.S.C. §
636(b)(1). The court may then "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." Id.
Mr. Willis lodged three objections to the
R&R. The first objection contends that the ACCA
enhancement was improperly applied because Mr. Willis was
convicted of aggravated assault rather than terroristic
threatening. The second contends that, even if he was
convicted of terroristic threatening, this conviction should
not be considered a violent felony for purposes of the ACCA.
Finally, even if the Court disagrees with the above two
contentions, Mr. Willis contends that he should be granted a
certificate of appealability because whether his conviction
for terroristic threatening should remain a crime of violence
is an open question that he should be entitled to pursue
further on appeal. The Court considers each objection in
Conviction for Terroristic Threatening
Willis first contends that there is an ambiguity in his March
7, 2001 conviction for terroristic threatening. Namely, the
state court judgment cited the terroristic threatening
statute, Ark. Code Ann. § 5-13-301, but listed the
offense of conviction as aggravated assault, an offense the
government concedes would not qualify as a predicate violent
felony. See Doc. 36, p. 4. Because of this
ambiguity, Mr. Willis contends that the Court should employ
the rule of lenity and find that he was convicted of
aggravated assault. The Court disagrees.
evidence presented to the Court surrounding Mr. Willis'
March 7, 2001 conviction is as follows:
1. The Felony Information for No. CR 2000-2016 dated December
21, 2000 accuses Mr. Willis of "Aggravated Assault"
(Count 1) and "Terroristic Threatening" (Count ...