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Elsonpressley v. United States

United States District Court, E.D. North Carolina, Southern Division

January 11, 2018

ELSONPRESSLEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          JAMES C. DEVER III Chief United States District Judge.

         On June 13, 2016, Elson Pressley ("Pressley") moved under 28 U.S.C. § 2255 to vacate, set aside, or correct his 246-month sentence [D.E. 60] and requested appointment of counsel [D.E. 61]. On October 28, 2016, the Federal Public Defender entered an appearance to represent Pressley [D.E. 66], thereby mooting his request for counsel. On January 3, 2017, the government moved to dismiss Pressley's section 2255 motion [D.E. 68] and filed a memorandum in support [D.E. 69]. On January 24, 2017, Pressley responded in opposition [D.E. 70]. On July 25, 2017, the court ordered the government to produce all Shepard-approved documents concerning the 1984 housebreaking convictions listed in paragraphs 7, 8, and 9 of Pressley's Presentence Investigation Report ("PSR") [D.E.72]. See Shepard v. United States, 544 U.S. 13.26 (2005). On July 31, 2017, the government produced the Shepard-approved documents [D.E. 75]. On August 4, 2017, the government filed a supplemental brief [D.E. 76]. As explained below, the court grants the government's motion to dismiss and dismisses Pressley's section 2255 motion.

         I.

         On June 18, 2007, Pressley pleaded guilty to being a felon in possession of a firearm and ammunition. See [D.E. 29] 2-20. On September 25, 2007, at Pressley's sentencing hearing, the court calculated Pressley's total offense level to be 33, his criminal history category to be VI, and his advisory guideline range to be 235 to 293 months' imprisonment. See Sentencing Tr. [D.E. 30] 4-8. After thoroughly considering all relevant factors under 18 U.S.C. § 3553(a), the court sentenced Pressley to 246 months' imprisonment and 5 years of supervised release. See Id. at 16-21.

         Pressley appealed. On May 2, 2008, the United States Court of Appeals for the Fourth Circuit concluded that Pressley was an armed career criminal and affirmed Pressley's sentence. See United States v. Pressley, 276 Fed.Appx. 271 (4th Cir. 2008) (per curiam) (unpublished).

         On December 23, 2009, this court dismissed Pressley's first section 2255 motion for failure to state a claim upon which relief can be granted. See [D.E. 43]. On June 27, 2014, this court dismissed Pressley's second 2255 motion as successive. See [D.E. 48].

         On June 2, 2016, the United States Court of Appeals for the Fourth Circuit authorized Pressley to file a successive 2255 motion in light of Johnson v. United States, 135 S.Ct. 2551 (2015), and Welch v. United States, 136 S.Ct. 1257 (2016). On June 13, 2016, Pressley filed his section 2255 motion [D.E. 60] and argues that, due to Johnson, he is no longer an armed career criminal under the Armed Career Criminal Act ("ACCA") and his statutory maximum sentence is 120 months' imprisonment. See [D.E. 60] 5-6, 12; 18 U.S.C. § 924(e). The government disagrees and moves to dismiss Pressley's motion. See [D.E. 68, 69].

         II.

         A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure for "failure to state a claim upon which relief can be granted" tests a claim's legal and factual sufficiency. Fed. R.Civ. P. 12(b)(6); see Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-63, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010), aff'd. 566 U.S. 320 (2012); Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008); accord Erickson v. Pardus, 551 U.S. 89, 93-94 (2007) (per curiam). The government may challenge the legal sufficiency of a section 2255 petition through a motion to dismiss under Rule 12(b)(6). See Rule 12, Rules Governing Section 2255 Proceedings; United States v. Frady, 456 U.S. 152, 166-68 n.15 (1982); United States v. Reckmever, 900 F.2d 257, at *4 (4th Cir. 1990) (unpublished table decision). In considering a motion to dismiss, a court need not accept a pleading's legal conclusions. See, e.g.. Iqbal. 556 U.S. at 678. Similarly, a court "need not accept as true unwarranted inferences, unreasonable conclusions, or arguments." Giarratano, 521 F.3d at 302 (quotation omitted): see Iqbal. 556 U.S. at 677-79. Moreover, a court may take judicial notice of public records without converting a motion to dismiss into a motion for summary judgment. See, e.g., Fed.R.Evid. 201; Tellabs, Inc. v. Makor Issues & Rights. Ltd., 551 U.S. 308, 322 (2007); Philips v. Pitt Cty, Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009). In reviewing a section 2255 motion, the court is not limited to the motion itself. The court also may consider "the files and records of the case." 28 U.S.C. § 2255(b); see United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).

         III.

         Pressley argues that he is not an armed career criminal under the ACCA. Specifically, he argues that his three 1984 South Carolina housebreaking convictions and his 1992 South Carolina second-degree burglary conviction do not qualify as violent felonies under the ACCA. See PSR ¶¶ 7-9, 13. The government concedes that Pressley's 1992 second-degree burglary conviction is not a "violent felony" under the ACCA, but argues that Presley's three 1984 convictions for housebreaking are violent felonies under the ACCA. See [D.E. 76] 2-4.

         A.

         A person convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) is ordinarily subject to a maximum of 10 years' imprisonment. 18 U.S.C. § 924(a)(2). Under the ACCA, however, a person who has previously been convicted of three or more convictions that are "serious drug offense[s]" or "violent felon[ies]" committed on separate occasions shall be punished by a minimum of 15 years' imprisonment and up to a maximum of life imprisonment. Id. § 924(e). Before Johnson, a crime could qualify as a "violent felony" in three ways. First, the conviction could fall within the "force clause" by having "as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e)(2)(B)(i); see Johnson, 135 S.Ct. at 2551. Second, the conviction could be one of the enumerated offenses by fitting the generic definition of "burglary, arson, or extortion." Id. § 924(e)(2)(B)(ii). Finally, the conviction could fall under the so-called "residual clause" if it "otherwise involves conduct that presents a serious potential risk of physical injury to another." Id. In Johnson, the Court invalidated the residual clause. See Johnson, 135 S.Ct. at 2557. Thus, to qualify as a "violent felony" under the ACCA, a conviction must either fall within the force clause or fit the generic definition of an enumerated offense. See Id. at 2563. The government contends that Pressley's three 1984 housebreaking convictions remain violent felonies under the ACCA because they qualify as generic burglary.

         To determine whether a prior conviction qualifies as an enumerated violent felony under the ACCA, a court uses the categorical approach to determine "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." United States v. White, 836 F.3d 437, 444 (4th Cir. 2016) (quotation and alterations omitted); see Mathis v. United States,136 S.Ct. 2243, 2248 (2016). If the elements of the crime of conviction are the same as, or narrower than, the generic definition of an enumerated offense in the ACCA, a conviction for the state offense qualifies as a conviction for a crime of violence. See White, 836 F.3d at 444-45. "But if the [state] statute sweeps more broadly than the generic crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Descamps v. United States, 133 S.Ct. 2276, 2283 (2013). "The key... is elements, not facts." See Id. In construing a state statute, a federal court may not interpret the state statute differently than the state's highest court. See Johnson v. Fankell,520 U.S. 911, 916 (1997); White. 836 F.3d at 446. If a state's highest court has not ruled on an issue, a federal court looks to the decisions of a state's intermediate appellate ...


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