United States District Court, W.D. North Carolina, Statesville Division
Cogburn Jr. United States District Judge
MATTER is before the Court upon the Government's
Amended Motion to Dismiss Joseph Richard Greene's
Petition for Writ of Habeas Corpus, brought pursuant to 28
U.S.C § 2241. (Doc. No. 13.) Greene is represented by
the Federal Public Defender for the Western District of North
November 19, 2004, Greene pled guilty in federal district
court, without a plea agreement, to possession of a firearm
by a convicted felon, in violation of 18 U.S.C. §
922(g)(1). Accept. & Entry of Plea, Doc. No.
A federal probation officer then prepared a Presentence
Investigation Report (“PSR”) for sentencing
purposes. PSR, Doc. No. 33. Applying the 2004 United States
Sentencing Guidelines (“U.S.S.G.”) Manual, the
probation officer identified four prior felony convictions,
all in North Carolina, that triggered a sentence enhancement
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). PSR ¶ 23.
ACCA provides for a mandatory minimum sentence of 15 years in
prison for a defendant convicted of being a felon in
possession of a firearm, 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 sentence for someone
convicted under § 922(g)(1) is 10 years imprisonment.
See 18 U.S.C. § 924(a)(2). Greene's
qualifying predicate offenses under the ACCA were felonious
breaking and entering (1977), breaking and entering larceny
(1978), breaking and entering (1997), and common law robbery
(1997). PSR ¶ 23 The probation officer calculated a
total offense level of 31. PSR ¶ 25. Greene had 26
criminal history points, which established a criminal history
category of VI, even without application of the armed career
criminal enhancement. PSR ¶ 59. With the ACCA
enhancement, he faced a statutory minimum of 15 years and a
maximum of life in prison. § 924(e). His advisory
Sentencing Guidelines range was 188-235 months'
imprisonment. PSR ¶ 90. The Court sentenced Greene to
188 months in prison. J., Doc. No. 24. Judgment was entered
on August 29, 2005, id., and Greene did not file an
2011, the Fourth Circuit Court of Appeals decided United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en
banc). In that case, the court upended circuit precedent and
held that a prior North Carolina conviction will constitute a
felony for purposes of an enhanced punishment only if the
prior conviction was actually punishable for more than one
year of imprisonment as to that defendant. Id. at
to take advantage of the holding in Simmons, Greene
filed a Motion to Vacate, Set Aside, or Correct Sentence, 28
U.S.C. § 2255, in this Court, asserting that his 1997
breaking and entering conviction no longer qualifies as a
predicate offense under the ACCA because the maximum sentence
he could have received for that offense was 12 months in
prison. § 2255 Mot., No. 5:12-cv-00096-RLV (W.D. N.C.
filed July 10, 2012), Doc. No. 1. The ACCA requires that a
predicate offense be “punishable by imprisonment for a
term exceeding one year.” § 924(e)(2)(B). The
Court dismissed the Motion as untimely because it was filed
more than a year after Greene's judgment became final,
see 28 U.S.C. § 2255(f)(1). Order Den. §
2255 Mot., id. at Doc. No. 8 (filed February 25,
2014). The Fourth Circuit denied Greene's application for
a certificate of appealability. United States v.
Greene, 583 F. App'x 188 (4th Cir. 2014) (Mem).
2015, the United States Supreme Court issued its opinion in
Johnson v. United States, holding that the residual
clause in the ACCA's definition of “violent
felony” is unconstitutionally vague under the Due
Process Clause. 135 S.Ct. 2551, 2557 (2015). When Greene was
sentenced, “violent felony” was 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.” §
924(e)(2)(B) (2004) (emphasis added). The italicized closing
words of § 924(e)(2)(B) constituted the ACCA's
residual clause. Johnson, 135 S.Ct. at 2556.
Pursuant to Johnson, a defendant whose sentence was
enhanced under the ACCA based on a prior conviction that
satisfies only the residual clause of the “violent
felony” definition is entitled to relief from his
sentence. Id. at 2563.
through counsel, filed a motion in the Fourth Circuit seeking
authorization to file a successive § 2255 motion based
on Johnson. In re: Joseph Richard Greene,
No. 16-305 (4th Cir. filed April 5, 2016), ECF Nos. 2-1. He
argued that under Johnson, his conviction for common
law robbery no longer qualifies as an ACCA predicate offense
and that under Simmons, his 1997 breaking and
entering conviction no longer qualifies as a predicate
offense, leaving him with only two qualifying predicate
offenses under the ACCA. Id. at ECF No. 2-3. The
Fourth Circuit denied Greene's motion, stating that even
if the holding in Johnson applied retroactively, it
would not entitle Greene to relief. Id. at ECF No. 5
(citing United States v. Mungro, 754 F.3d 267, 272
(4th Cir. 2014) (holding that a North Carolina breaking or
entering conviction generally qualifies as generic burglary
under the ACCA's enumerated offense clause)).
April 18, 2016, the Supreme Court held that Johnson
applies retroactively to cases on collateral review.
Welch v. United States, 136 S.Ct. 1257, 1260 (2016).
Subsequently, Greene filed another motion in the Fourth
Circuit for authorization to file a successive § 2255
motion to vacate. See In re: Joseph Richard Greene,
No. 16-9145 (4th Cir. filed June 9, 2016), ECF No. 2-1. He
again argued that under Johnson and
Simmons, he no longer qualifies for an enhanced
sentence under the ACCA. Id.
to a ruling on that motion, Greene opened the instant
application for habeas relief in this Court by filing a
§ 2255 Motion to Vacate on June 24, 2016, challenging
his sentence enhancement under Johnson and
Simmons. (Doc. No. 1.) On June 27, 2016, the Fourth
Circuit denied Greene's request for authorization to file
a second-or-successive § 2255 motion, noting that the
motion “relie[d] on the same basic premises as his most
recent prior § 2244 motion, which [the] Court has
already denied.” In re: Greene, No. 16-9145 at
ECF No. 7.
concedes that he cannot proceed on his § 2255 Motion but
contends he is entitled to relief pursuant to 28 U.S.C.
§ 2241. (Doc. No. 3.) The Government has moved to
dismiss this action, arguing that the Court does not have
jurisdiction to consider Greene's Motion under §
2241. (Am. Mot. to Dismiss, Doc. No. 13.) Greene responded to
the Government's motion (Doc. No. 15), and the Government
has filed a Reply (Doc. No. 16).
Government does not dispute that if Greene were sentenced
today, he would not qualify as an armed career criminal under
the ACCA. After Johnson, Greene's North Carolina
conviction for common law robbery no longer qualifies as an
ACCA predicate “violent felony.” See United
States v. Gardner, 823 F.3d 793, 804 (4th Cir. 2016).
And, under Simmons, Greene's 1997 conviction for
breaking and entering no longer qualifies as an ACCA
predicate because he could not have been sentenced to more
than 12 months in prison for that offense. The problem for
Greene is that neither Simmons nor Johnson
operating alone provide him relief from his current sentence.
Johnson has no bearing on the validity of his three
North Carolina breaking and entering convictions, as they
fall under the ACCA's enumerated offense clause,
see Mungro, 754 F.3d at 272, and Simmons
has no bearing on the validity ...