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Harris v. United States

United States District Court, W.D. North Carolina, Charlotte Division

May 17, 2017



          Richard L. Voorhees United States District Judge

         THIS MATTER is before the Court upon Petitioner Henry Lee Harris's Motion to Vacate, Set Aside or Correct Sentence, filed pursuant to 28 U.S.C. § 2255. (Doc. No. 1.) Petitioner is represented by the Federal Defenders of Western North Carolina. Also before the Court is the Government's Motion to Dismiss. (Doc. No. 7.)

         I. BACKGROUND

         Harris was indicted and charged with two counts of possession of a firearm or ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), and one count of possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d). Superseding Indictment, Doc. No. 11.[1] On March 5, 2005, a jury found Harris guilty of one of the two felon-in-possession offenses. Verdict, Doc. No. 28.

         In Harris's presentence report (“PSR”), the probation officer determined that Harris was an armed career criminal, subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e). PSR ¶ 22, Doc. 73. The probation officer calculated a total offense level of 33 and a criminal-history category of V, yielding an applicable Sentencing Guidelines range of 210 to 262 months in prison for the felon-in-possession offense. PSR ¶ 73. The probation officer also noted that Harris faced a statutory mandatory-minimum term of 180 months in prison under the ACCA. PSR ¶ 72. Harris did not object to his classification as an armed career criminal. PSR 19.

         The Court imposed the mandatory minimum sentence of 180 months imprisonment. Harris appealed, and the Fourth Circuit affirmed this Court's judgment. United States v. Harris, 332 F. App'x 55 (4th Cir. 2009).

         On June 21, 2016, Harris filed the instant Motion to Vacate, seeking relief under Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 1.) On June 24, 2016, the Federal Defenders of Western North Carolina entered an appearance on Harris's behalf and filed a supplement to the Motion to Vacate. (Doc. No. 3.) Harris contends that under the holding in Johnson, id., he no longer qualifies as an armed career criminal, that enhancement of his sentence under the ACCA violated his right to due process, and that his sentence is in excess of the maximum authorized by law.

         The Government has moved to dismiss (Doc. No. 7), and Harris has filed a Response/Reply (Doc. No. 8). This matter is ripe for review.


         Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the dismissal of an action based upon a “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To state a viable claim for relief under § 2255, a petitioner must prove that: (1) the sentence imposed “violat[ed] . . . the Constitution or laws of the United States;” (2) “the court was without jurisdiction to impose such a sentence;” or (3) “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). After examining the record in this matter, the Court finds that the claims presented in Harris's § 2255 Motion can be resolved based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).


         The Armed Career Criminal Act, 18 U.S.C. § 924(e), provides for a mandatory minimum sentence of 15 years in prison for a defendant convicted of being a felon in possession of a firearm, 18 U.S.C. § 922(g), if the defendant has at least three prior convictions for serious drug offenses or violent felonies. See § 924(e)(1). Without the ACCA enhancement, the statutory maximum is10 years or 120 months in prison. See § 924(a)(2).

         “Violent felony” is defined in the ACCA 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.” Id. § 924(e)(2)(B) (emphasis added). The italicized closing words of § 924(e)(2)(B) constitute the ACCA's residual clause, which, in Johnson, the Supreme Court struck as unconstitutionally vague under the due process clause. 135 S.Ct. at 2556, 2558. The Court left intact the remainder of the ACCA's “violent felony” definition, including the four enumerated offenses and the “force clause.” Id. at 2563.

         Thus, a defendant who was sentenced under the ACCA to a mandatory minimum term based on a prior conviction that satisfies only the residual clause of the ACCA's “violent felony” definition is entitled to relief from his sentence. In Welch v. United States, the Supreme Court held that the ruling in Johnson applies retroactively to cases on collateral review. 136 S.Ct. 1257, 1268 (2016).

         Harris's PSR does not identify which of Harris's prior offenses qualified as predicates for the ACCA enhancement, but it does identify the following offenses for which a sentence of more than one year in prison was imposed: (1) a 1965 North Carolina conviction for breaking and entering; (2) a 1970 North Carolina conviction for housebreaking; (3) three 1973 South Carolina convictions for armed robbery, all of which arose out of the same criminal incident; (4) a 1983 North Carolina conviction for escape; and (5) a 1988 North Carolina conviction for second-degree burglary. See PSR ¶¶ 27, 29-31, and 34. Harris contends that in light of Johnson, only his 1970 North Carolina conviction for housebreaking and his 1973 South Carolina armed robbery convictions qualify as predicate violent felonies under the ACCA, and that the rest qualified only under the ACCA's now-void residual clause.[2] As such, Harris argues, his sentence of 180 months is a per se illegal sentence that both exceeds the 10-year statutory maximum, see § 924(a)(2), and violates due process of law.

         The Government, on the other hand, contends that Harris's 1965 North Carolina conviction for breaking and entering and his 1988 North Carolina conviction for second-degree burglary both qualify as violent felonies under the enumerated burglary offense left intact by the Johnson decision. Furthermore, the Government argues that Harris's claim is procedurally defaulted. Because this Court concludes that Harris's second-degree burglary conviction qualifies as a predicate enumerated offense under the ACCA, the Court finds it unnecessary to address the Government's procedural default argument or whether Harris's 1965 conviction for breaking and entering also qualifies as a predicate offense.

         To determine whether a prior conviction qualifies as an ACCA enumerated offense, courts employ what is known as “the categorical approach.” Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). Under this approach, the court “focus[es] solely on whether the elements of the crime of conviction sufficiently match the elements of [the listed] generic [crime], while ignoring the particular facts of the case.” Mathis v. United States, 136 S.Ct. 2243, 2248 (2016). A state conviction will qualify as an enumerated offense, and thus a predicate crime under the ACCA, only if the elements of the state-law crime of conviction “are the same as, or narrower than, those of ...

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