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United States v. Lewis

United States Court of Appeals, Tenth Circuit

September 13, 2018

AARON LEWIS, JR., Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Oklahoma (D.C. Nos. 6:16-CV-00169-JHP and 6:10-CR-00065-JHP-1)

          Submitted on the briefs: Aaron Lewis, Jr., pro se.

          Before PHILLIPS, McKAY, and McHUGH, Circuit Judges.

          McKAY, Circuit Judge.

         Petitioner Aaron Lewis, Jr., a federal prisoner acting pro se, seeks a certificate of appealability to appeal the district court's denial of his § 2255 petition.[1]

         In 2010, Petitioner pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act provides for an enhanced penalty for persons convicted of an offense under 18 U.S.C. § 922(g) who have three distinct prior convictions for either a violent felony or a serious drug offense. See 18 U.S.C. § 924(e)(1). The court found Petitioner to be an armed career criminal based on two prior drug convictions and one burglary conviction and sentenced him to 188 months of imprisonment. He did not appeal his conviction.

         At the time of sentencing, the ACCA defined "violent felony" via three possible clauses:

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 [use of force or elements clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives [enumerated clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another . . . [residual clause].

18 U.S.C. § 924(e)(2)(B). In his habeas petition, filed in 2016, Petitioner seeks sentencing relief based on Johnson v. United States, 135 S.Ct. 2551 (2015), which invalidated the residual clause of 18 U.S.C. § 924(e)(2)(B). The gravamen of his argument is that he is entitled to Johnson relief because the necessary third prior conviction for burglary under Kansas statute 21-3715 only qualified as a violent felony under the now-void residual clause. Petitioner also contends that the district court erred in holding that Mathis v. United States, 136 S.Ct. 2243 (2016), is not retroactively applicable on collateral review.

         In a § 2255 appeal, we "review the district court's findings of fact for clear error and its conclusions of law de novo." United States v. Barrett, 797 F.3d 1207, 1213 (10th Cir. 2015) (quotation marks omitted). The habeas statute "allows a § 2255 motion to be filed within one year of 'the date on which the right asserted was initially recognized by the Supreme Court.'" United States v. Snyder, 871 F.3d 1122, 1126 (10th Cir. 2017) (quoting 28 U.S.C. § 2255(f)(3) (emphasis omitted)). Johnson's holding that the § 924(e)(2)(B) residual clause is constitutionally invalid was made retroactive for all cases on collateral review. See Welch v. United States, 136 S.Ct. 1257, 1265 (2016). "[I]n order to be timely under § 2255(f)(3), a § 2255 motion need only 'invoke' the newly recognized right, regardless of whether or not the facts of the record ultimately support the movant's claim." Snyder, 871 F.3d at 1126. Here, Petitioner invoked the newly recognized right in Johnson by arguing that the district court necessarily relied on the now-invalid residual clause in § 924(e)(2)(B) to determine his sentence. Because Petitioner filed his motion to vacate within a year of Johnson, his motion is timely under § 2255.

         Petitioner has also adequately shown both cause and prejudice. His "Johnson claim was not reasonably available" during the time when he could have filed a direct appeal, and this "is sufficient to establish cause." Snyder, 871 F.3d at 1127-28; see also United States v. Driscoll, 892 F.3d 1127, 1131 (10th Cir. 2018). Moreover, if Petitioner is correct regarding his Johnson claim, he would no longer have the requisite number of predicate convictions for the ACCA sentencing enhancement. Given that a "sentence that is not authorized by law is certainly an 'actual and substantial disadvantage' of 'constitutional dimensions, '" Snyder, 871 F.3d at 1128 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)), Petitioner has demonstrated actual prejudice resulting from the alleged Johnson error, Driscoll, 892 F.3d at 1131-32. Thus, Petitioner's claim overcomes any procedural default. See Snyder, 871 F.3d at 1127-28; Driscoll, 892 F.3d at 1132.

         Notwithstanding this preliminary analysis, we will only issue a COA "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). To make this showing, an applicant must demonstrate "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks omitted). In § 2255 motions where an unconstitutional reliance on the § 924(e)(2)(B) residual clause is asserted, the burden is on the defendant to "prove that the sentencing court, more likely than not, relied on the residual clause to enhance his sentence under the ACCA." Driscoll, 892 F.3d at 1135; see also United States v. ...

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