United States District Court, N.D. Texas, Dallas Division
ORDER MODIFYING AND ACCEPTING FINDINGS, CONCLUSIONS,
AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND
DENYING A CERTIFICATE OF APPEALABILITY
GREN SCHOLER, UNITED STATES DISTRICT JUDGE
United States Magistrate Judge made findings, conclusions,
and a recommendation in this case [ECF No. 52], An objection
was filed by Movant Mark Julian Edmonds ("Movant")
[ECF No. 54], The District Court reviewed de novo
those portions of the proposed findings, conclusions, and
recommendation to which objection was made, and reviewed the
remaining proposed findings, conclusions, and recommendation
for plain error. The Court ACCEPTS the Findings, Conclusions,
and Recommendation of the United States Magistrate Judge
subject to the following modifications.
28 U.S.C. §§ 2244(b) and 2255(h), "[a] second
or successive habeas application must meet strict procedural
requirements before a district court can properly reach the
merits of the application." United States v.
Wiese, 896 F.3d 720, 723 (5th Cir. 2018). Movant must
first, as he did in this case, receive permission from the
Fifth Circuit to file a second or successive motion, which
requires that he:
make a prima facie showing [to the Circuit Court] that the
motion relies on a new claim resulting from either (1)
"a new rule of constitutional law, made retroactive to
cases on collateral review by the Supreme Court, that was
previously unavailable," or (2) newly discovered, clear
and convincing evidence that but for the error no reasonable
fact finder would have found the defendant guilty.
Id. (citing 28 U.S.C. §§ 2244(b)(2),
(3)(A), (3)(C), 2255(h)). Movant received permission to file
a second or successive motion from the Fifth Circuit in 2016.
Second, Movant is then required to "actually prove at
the district court level that the relief he seeks relies
either on a new, retroactive rule of constitutional law or on
new evidence." Id. (citing 28 U.S.C. §
time the Magistrate Judge reviewed Movant's successive
§ 2255 motion, the Fifth Circuit had not committed to
any standard for determining whether a § 2255 motion
"relies on" a constitutional claim articulated in
Johnson v. United States, 135 S.Ct. 2551 (2015).
See ECF No. 54 at 12 (citing Wiese, 896
F.3d at 724). The Magistrate Judge surveyed the law of the
other circuits, however, and correctly predicted that the
Fifth Circuit would require Movant to show "by a
preponderance of the evidence" that "it was more
likely than not that he was sentenced under the residual
clause" of the Armed Career Criminal Act
("ACCA"). United States v. Clay, 921 F.3d
550, 558 (5th Cir. 2019); ECF No. 54 at 7. The Court now
adopts and applies the "more likely than not"
standard the Fifth Circuit espoused in Clay.
objects to the Magistrate Judge's finding that N.Y. Penal
Law § 140.25 constitutes generic burglary, because it
encompasses "vehicles 'in which any person
lives.'" Obj. ¶ 11. Section 140.25 would
constitute generic burglary if it
'"substantially corresponds' to or is
narrower than the generic definition of burglary,"
regardless "of its 'exact definition or
label.'" Quarks v. United States, __ S.Ct
__, No. 17-778, 2019 WL 2412905, at *3 (June 10, 2019)
(emphasis added) (quoting Taylor v. United States,
495 U.S. 575, 599, 602 (1990)). "[T]he elements of
generic 'burglary' [are] 'an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime." United
States v. Stitt, 139 S.Ct. 399, 405-06 (2018) (quoting
Taylor, 495 U.S. at 598). The Supreme Court recently
clarified in Stitt that the phrase "building or
other structure" encompasses any vehicle or structure
"designed or adapted for overnight use."
Id. at 407. Generic burglary covers break-ins
involving such vehicles or structures because "[a]n
offender who breaks into ... a vehicle, ., that is adapted
for or customarily used for lodging runs [the] risk of
violent confrontation" that Congress sought to address
in the ACCA. Id. at 406 (citations omitted).
Moreover, it does not matter whether "a vehicle is only
used for lodging pail of the time," as "burglary is
no less a burglary because it took place at a summer home
during the winter, or a commercial building during a
concerns apply with equal force to New York's second
degree burglary statute, which provides, in pertinent part,
that a "[a] person is guilty of burglary in the second
degree when he knowingly enters or remains unlawfully in a
building with intent to commit a crime therein." N.Y.
Penal Law § 140.25. This statute includes all of the
elements of generic burglary. See Stitt, 139 S.Ct.
at 405-06. Moreover, § 140.25 is a generic burglary
statute even though the New York Penal Law defines
"building" as "any structure, vehicle or
watercraft used for overnight lodging of persons, or used by
persons for carrying on business therein, or used as an
elementary or secondary school, or an inclosed motor truck,
or an inclosed motor truck trailer." Id. §
140.00(2). A burglary involving a vehicle or structure used
for lodging or business involves a similar risk of violent
confrontation as a burglary of a vehicle or structure adapted
or designed for lodging or business use. Stitt, 139
S.Ct. at 406. Thus, the Court finds that § 140.25
"substantially corresponds to .. . the generic
definition of burglary." Quarks, 2019 WL
2412905, at *3 (internal quotation marks omitted).
Burden of Proof
§ 140.25 is not a generic burglary statute, the Court
would dismiss the successive § 2255 motion because
Movant has not shown, by a preponderance of the evidence,
that the sentencing court relied on the residual provision of
the ACCA. See Clay, 921 F.3d at 558. At the time
Movant was sentenced, federal courts viewed attempted
burglary in the third-degree (a less serious offense than
second-degree burglary) as a violent offense under the ACCA.
See United States v. Andrello, 9 F.3d 247, 250 (2d
Cir. 1993) (collecting cases). Movant does not point to, and
the Court has not found, any case contemporaneous with the
sentencing that would suggest that burglary in the
second-degree was not a violent felony under the ACCA.
Although Movant observes that some New York federal courts
have held burglary in the second-degree to be non-generic,
see, e.g., Memoli v. United States, 04CR140 (JSR),
2017 WL 3559190, at *11 (S.D.N.Y. July 11, 2017), the cases
Movant cites were decided more than a decade after Movant was
sentenced and so have no bearing on whether the sentencing
court relied on the residual provision of the ACCA. Moreover,
the addendum to Movant's presentence report reflects that
Movant's convictions were for burglaries of
habitations. See Presentence Report ¶ 23,
United States v. Edmonds, No. 3:98-cr-370-M (N.D.
Tex.), ECF. No. 227; id. at 15 ("[T]he
defendant's past Burglary of a Habitation convictions in
New York are crimes of violence and qualify the defendant as
an armed career criminal."). Accordingly, Movant has not
shown by a preponderance of the evidence that the sentencing
court relied on the residual provision of the ACCA.