United States District Court, N.D. Texas, Dallas Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION
CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE.
Special Order 3-251, this habeas case has been
automatically referred for findings, conclusions, and
recommendation. Based on the relevant findings and applicable
law, the amended Motion Under 28 U.S.C. §
2255, to Vacate, Set Aside, or Correct Sentence by a
Person in Federal Custody should be
GRANTED, the sentence should be vacated, and
the movant should be re-sentenced.
Dewayne Vickers (Movant) challenges his federal conviction
and sentence in Cause No. 3:06-CR-229-B. The respondent is
the United States of America (Government).
indictment filed on July 25, 2006, Movant was charged with
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1), 924(e)(1). (See doc.
He pleaded not guilty and was convicted by a jury.
(See doc. 52.) On March 22, 2007, the United States
Probation Office (USPO) filed a Presentence Report (PSR) that
applied the 2006 United States Sentencing Guidelines Manual
(USSG). (See doc. 61 at 4, ¶ 14.) It found that
Movant was an armed career criminal because his federal
conviction under § 924(e) subjected him to an enhanced
sentence based on his prior violent felony convictions for
murder, burglary of a habitation, and unlawful delivery of a
controlled substance, resulting in an offense level of 33.
(See id. at 4-5, ¶¶ 10, 15, 16.) With a
criminal history category of four, the resulting guideline
range was 188-235 months. (See id. at 12, ¶
56.) On July 5, 2007, Movant was sentenced to 190 months'
imprisonment, which was then adjusted to 168 months to
account for 22 months he had served on his related state case
that would not be credited by the Bureau of Prisons.
(See doc. 52.) The judgment was affirmed on appeal.
(See doc. 64); United States v. Vickers,
No. 07-10767 (5th Cir. Aug. 12, 2008).
filed a motion to vacate, set aside or correct his sentence
under 28 U.S.C. § 2255, and it was denied on January 12,
2011. (See No. 3:09-CV-1777, docs. 8, 9.) He filed a
second § 2255 motion on December 8, 2015, and amended it
on January 12, 2016. (See 3:15-CV-3912, docs. 1, 5.)
After being appointed to investigate and pursue any
potentially meritorious claims, the Federal Public Defender
filed an unopposed motion to transfer the case to the United
States Court of Appeals for the Fifth Circuit for
authorization to file a second or successive §2255
motion, which was granted on April 26, 2016. (See
docs. 9, 10, 11.) On May 27, 2016, the Fifth Circuit
authorized Movant to file a successive § 2255 motion
challenging the enhancement of his sentence for possession of
a firearm by a felon under the Armed Career Criminal Act
(ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), based on
Johnson v. United States, 135 S.Ct. 2551 (2015), and
Welch v. United States, 136 S.Ct. 1257 (2016).
(See doc. 12); In re Vickers, No. 16-10509
(5th Cir. May 27, 2016). He filed his amended § 2255
motion on June 26, 2016. (See doc. 14.)
contends that the use of his 1982 Texas murder conviction to
enhance his sentence under § 924(e) violated his right
to due process under Johnson because it can only be
a violent felony under § 924(e)'s residual clause,
since “it is not enumerated [in that statute] and lacks
force as an element, because it is a species of injury
causation.” (See doc. 14 at 7.) The Government
filed a response on October 13, 2016. (See doc. 19.)
SCOPE OF RELIEF AVAILABLE UNDER § 2255
under 28 U.S.C. § 2255 is reserved for transgressions of
constitutional rights and for a narrow range of injuries that
could not have been raised on direct appeal and would, if
condoned, result in a complete miscarriage of justice.”
United States v. Gaudet, 81 F.3d 585, 589 (5th Cir.
1996) (citations and internal quotation marks omitted). It is
well-established that “a collateral challenge may not
do service for an appeal.” United States v.
Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en
banc) (quoting United States v. Frady, 456 U.S.
152, 165 (1982)).
failure to raise a claim on direct appeal may procedurally
bar an individual from raising the claim on collateral
review. United States v. Willis, 273 F.3d 592, 595
(5th Cir. 2001). Defendants may only collaterally attack
their convictions on grounds of error omitted from their
direct appeals upon showing “cause” for the
omission and “actual prejudice” resulting from
the error. Shaid, 937 F.2d at 232. However,
“there is no procedural default for failure to raise an
ineffective-assistance claim on direct appeal” because
“requiring a criminal defendant to bring [such] claims
on direct appeal does not promote the objectives” of
the procedural default doctrine, “to conserve judicial
resources and to respect the law's important interest in
the finality of judgments.” Massaro v. United
States, 538 U.S. 500, 503-04 (2003). The Government may
also waive the procedural bar defense. Willis, 273
F.3d at 597.
ARMED CAREER CRIMINAL ACT
Supreme Court of the United States noted in Johnson,
Federal law forbids certain people-such as convicted felons,
persons committed to mental institutions, and drug users-to
ship, possess, and receive firearms. § 922(g). In
general, the law punishes violation of this ban by up to 10
years' imprisonment. § 924(a)(2). But if the
violator has three or more earlier convictions for a
“serious drug offense” or a “violent
felony, ” [Section 924 of the Armed Career Criminal
Act] increases his prison term to a minimum of 15 years and a
maximum of life. § 924(e)(1); Curtis Johnson v.
United States, 559 U.S. 133, 136, 130 S.Ct. 1265, 176
L.Ed.2d 1 (2010). The Act defines “violent
any crime punishable by imprisonment for a term 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.
§ 924(e)(2)(B) (emphasis added).
135 S.Ct. at 2555-56. Subsection (i) is known either as the
force clause, United States v. Lerma, 877 F.3d 628,
630 (5th Cir. 2017), or as the elements clause, United
States v. Taylor, 873 F.3d 476, 477 n.1 (5th Cir. 2017).
The four offenses listed in subsection (ii) are referred to
as the “enumerated offenses, ” see United
States v. Davis, 487 F.3d 282, 285 (5th Cir. 2007), or
as the “enumerated offenses clause, ”
Taylor, 873 F.3d at 477 n.1. The remainder of the
subsection is known as the “residual clause, ”
Johnson, 135 S.Ct. 2555-56.
held that the imposition of an increased sentenced under
ACCA's residual clause violates the Constitution's
guarantee of due process because the residual clause is
unconstitutionally vague. Johnson, 135 S.Ct. at
2563. After Johnson, a crime is a
violent felony under ACCA only if it is one of the enumerated
offenses, or if it qualifies under the force clause.
United States v. Moore, 711 Fed.Appx. 757, 759 (5th
Cir. 2017) (per curiam).
the offense of which Movant was convicted, murder, is not an
enumerated offense. Neither the Fifth Circuit Court of
Appeals nor any district court within the circuit appears to
have considered whether it qualifies as a violent felony
under ACCA's force clause because it has as an element
the use, attempted use, or threatened use of physical force.
TEXAS MURDER STATUTE
version of Texas Penal Code § 19.02(a) in effect at the
time of Movant's ...