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Vickers v. United States

United States District Court, N.D. Texas, Dallas Division

May 7, 2018




         By 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.

         I. BACKGROUND

         Michael 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).

         By 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. 1.)[1] 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).

         Movant 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.)

         Movant 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.)


         “Relief 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)).

         A 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.


         As the 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 felony” as:
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.

         Johnson 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.[2] 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).

         Here, 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.


         The version of Texas Penal Code § 19.02(a) in effect at the time of Movant's ...

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