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United States v. Wilson

United States District Court, D. Nevada

October 25, 2017

UNITED STATES OF AMERICA, Respondent/Plaintiff,
v.
GREGORY WILSON, Petitioner/Defendant.

          ORDER

          Kent J. Dawson United States District Judge.

         Presently before the Court is Petitioner's Motion to Vacate, Set Aside, or Correct Criminal Convictions and Sentence Pursuant to 28 U.S.C. § 2255 (#135). Respondent filed a response (#143) to which Petitioner replied (#144). Also before the Court is Petitioner's Motion for Leave to File Supplemental Authority (#145). Respondent filed a response (#146).

         I. Background

         On December 17, 2009, a jury found Gregory Wilson (“Petitioner”) guilty of one count of felon in possession of a firearm pursuant to 18 U.S.C. § 922(g)(1). On April 30, 2010, the Court sentenced Petitioner to 240 months' imprisonment. Petitioner was categorized as an armed career criminal potentially based on one of his two different prior convictions: California robbery and false imprisonment. This categorization led to an Armed Career Criminal Act (“ACCA”) enhancement, resulting in a total offense level of 33. Without the ACCA enhancement, Petitioner's total offense level would have been 26.

         On May 14, 2010, Petitioner filed a notice of appeal. On March 22, 2011, the Ninth Circuit Court of Appeals affirmed the decision of the District Court. On September 30, 2013, Petitioner filed a 2255 Motion alleging prosecutorial misconduct, ineffective assistance of counsel, and due process violations. On March 1, 2014, the Court denied Petitioner's § 2255 Motion as untimely.

         On June 26, 2015, the United States Supreme Court decided Johnson v. United States, finding the residual clause of the ACCA violates the Constitution's guarantee of due process. See Johnson v. U.S., 135 S.Ct. 2551, 2557 (2015). On April 18, 2016, the Supreme Court held Johnson announced a new substantive rule that has retroactive effect on cases on collateral review. See Welch v. U.S., 136 S.Ct. 1257, 1268 (2016). On June 7, 2016, Petitioner filed the present motion based on the new, retroactively applicable Constitutional rule announced in Johnson.

         II. Legal Standards

         A. Procedural Default

         As a threshold issue, the Government incorrectly characterizes Defendant's claim as a successive 2255 motion that is barred by procedural default. Under 28 U.S.C. § 2244(b)(4), “a district court shall dismiss any claim presented in a second or successive application that the court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the requirements of this section.” Those requirements are that the claim be based on either: (1) newly discovered evidence; or (2) a new rule of constitutional law that was previously unavailable, made retroactive to cases on collateral review by the Supreme Court. See 28 U.S.C. §§ 224b(2), 2255(h)(2); U.S. v. Villa-Gonzalez, 208 F.3d 1160, 1164 (9th Cir. 2000).

         Petitioner files the present motion based on the new, retroactively applicable constitutional rule announced in Johnson: that the residual clause of the ACCA is unconstitutional. Johnson is Petitioner's only vehicle: he does not allege new evidence, nor the existence of an error that would render his sentence unlawful. As Petitioner correctly states, but for Johnson, he would have no claim for relief. His claim fits squarely within the requirements of 28 U.S.C. § 2244(b)(4) and is not procedurally barred.

         B. ACCA Enhancement Approach

         The Court traditionally employs the categorical approach to determine whether an ACCA sentencing enhancement is appropriate. The Supreme Court's determination in Johnson v. United States narrowed the reach of the ACCA, but the categorical approach remains the correct analytical vehicle.

         1. Johnson v. United States

         Johnson v. United States declared the residual clause of the ACCA unconstitutionally vague. Johnson, 135 S.Ct. at 2563. As such, any sentence imposed under the ACCA's residual clause “violates the Constitution's guarantee of due process.” Id. In Welch v. United States, the Supreme Court held that Johnson announced a “new substantive rule that has retroactive effect in cases on collateral review.” Welch, 136 S.Ct. at 1267. Johnson was substantive because it “affected the reach of the underlying statute rather than the judicial procedures by which the statute is applied.” Id. at 1265. Thus, in light of Johnson, in order for a defendant to remain subject to a previously imposed ACCA sentencing enhancement, ...


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