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Greene v. United States

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

October 19, 2017

JOSEPH RICHARD GREENE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          MAX O. COGBURN, JR. UNITED STATES DISTRICT JUDGE.

         THIS 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 Carolina.

         I. BACKGROUND

         On 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. 15.[1] 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.

         The 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 appeal.

         In 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 241.

         Seeking 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 Fed.Appx. 188 (4th Cir. 2014) (Mem).

         In 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.

         Greene, 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)).

         On 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.

         Prior 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.

         Greene 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).

         II. ...


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