United States District Court, E.D. North Carolina, Western Division
MALCOLM J. HOWARD SENIOR UNITED STATES DISTRICT JUDGE.
matter is before the court on petitioner's motion to
vacate his sentence under 28 U.S.C. § 2255. [DE #34].
The government responded by filing a motion to dismiss, [DE
#43], to which petitioner filed a response. [DE #46]. The
time for further filing has expired, and this matter is ripe
April 14, 2003, petitioner pled guilty, pursuant to a written
memorandum of plea agreement, to possession of a firearm by a
convicted felon and aiding and abetting, in violation of 18
U.S.C. § 922(g)(1), § 924, and § 2 (Count One)
and possession of an unregistered firearm, in violation of 26
U.S.C. § 5861(d) (Count Six). [DE #18]. On July 22,
2003, the court sentenced petitioner to a total term of
imprisonment of 188 months and a supervised release term of 5
years. [DE #18] . Petitioner did not appeal. On or about
December 8, 2003, petitioner filed his first motion pursuant
to 28 U.S.C. § 2255, [DE #20], which was dismissed. [DE
#28 and #29]. Petitioner, by and through counsel, filed the
instant motion to vacate pursuant to 28 U.S.C. § 2255 on
June 26, 2016, in light of Johnson v. United States,
135 S.Ct. 2551 (2015), arguing that as his predicate offenses
no longer qualify as violent felonies, he is no longer an
armed career criminal under the Armed Career Criminal Act
("ACCA"), and his sentence therefore exceeds the
statutory maximum for possession of a firearm by a felon. [DE
#34 at 4 ] . The Fourth Circuit granted authorization for
petitioner to file a second or successive § 2255 motion.
has met the "in custody" requirement of a §
2255 motion because he was in custody at the time of filing
his initial § 2255 motion on June 26,
2016. See Woodfolk v. Maynard, 857 F.3d
531, 539-40 (4th Cir. 2017) ("It is well settled that
the 'in custody' requirement applies at the time a
petition is filed.") (citing Carafas v.
LaVallee, 391 U.S. 234, 238-39 (1968); Griffin v.
Bait. Police Dep't, 804 F.3d 692, 697 (4th Cir.
2015)). Additionally, this motion is timely pursuant to 28
U.S.C. § 22255(f)(3).
Application of the ACCA
was sentenced as an armed career criminal and argues his
underlying predicate offenses, including three New Jersey
first degree robbery convictions and one abuse/neglect
conviction, are no longer violent felonies under the
ACCA. [PSR at ¶¶ 17-19]. In the
Johnson decision, the Supreme Court of the United
States invalidated the residual clause found in 18 U.S.C.
§ 924(e) (2) (B) (ii) of the ACCA. Johnson, 135
S.Ct. at 2557. In Welch v. United States, 136 S.Ct.
1257, 1265 (2016), the Supreme Court held the rule pronounced
in Johnson is retroactively applicable on collateral
review. In light of Johnson and Welch, the
court must now consider whether petitioner's prior
convictions are violent felonies under the force clause,
which provides that a crime must have "as an element the
use, attempted use, or threatened use of physical force
against the person of another" to qualify as a
violent felony. 18 U.S.C. § 924(e) (2) (B) (i) .
making this determination, a court must apply the categorical
or modified categorical approach. Descamps v. United
States, 570 U.S. 254, 257-62 (2013). "Under the
categorical approach, [the court] examine[s] whether a state
crime has as an element the 'use, attempted use, or
threatened use of physical force against the person of
another,' and do[es] not consider the particular facts
underlying the defendant's conviction."
United States v. Burns-Johnson, 864 F.3d
313, 316 (4th Cir. 2017) (citing Descamps, 570 U.S.
modified [categorical] approach serves a limited function: It
helps effectuate the categorical analysis when a divisible
statute, listing potential offense elements in the
alternative, renders opaque which element played a part in
the defendant's conviction." Descamps, 570
U.S. at 260. The modified categorical approach allows the
court to examine approved documents, including an indictment,
plea agreement, or jury instructions to determine which
statutory alternative is implicated by the predicate offense.
Id. at 257, 263. "The modified approach thus
acts not as an exception, but instead as a tool. It retains
the categorical approach's central feature: a focus on
the elements, rather than the facts, of a crime."
Id. at 263.
determine which approach to use, the court must first
determine whether a statute is indivisible or divisible. The
categorical approach is applied to an indivisible statute,
and the modified categorical approach is applied to a
divisible statute. Id. at 257-58.
statute is divisible when it "consists of multiple,
alternative elements creating several different crimes, some
of which would match the generic federal offense and others
that would not." United States v. Simmons, 917
F.3d 312, 319 n.3 (4th Cir. 2019) (quoting Omargharib v.
Holder, 775 F.3d 192, 197 (4th Cir. 2014) (internal
citations and quotation marks omitted). A statute is
indivisible when it "do[es] not include alternative
elements establishing 'multiple, alternative versions of
the crime.'" Burns-Johnson, 864 F.3d at 316
n. 1 (quoting Descamps, 570 U.S. at 262).
"'Elements' are the 'constituent parts'
of a crime's legal definition - the things the
'prosecution must prove to sustain a
conviction.'" Mathis v. United States, 136
S.Ct. 2243, 2248 (2016) (quoting Black's Law
Dictionary 634 (10th ed. 2014)). "'Means',
on the other hand, are 'various factual ways of
committing' a single element." United States v.
McCants, 920 F.3d 169, 178 (3d Cir. 2019) (quoting
Mathis, 136 S.Ct. at 2249). A statute is divisible
when it "list[s] elements in the alternative, and
thereby define[s] multiple crimes." Mathis, 136
S.Ct. at 2249.
Fourth Circuit has not ruled squarely on the issue of whether
N.J.S.A. § 2C:15-1 is a divisible statute. Petitioner
and government have also not squarely addressed this
issue. The parties do not dispute, however,
petitioner's convictions at paragraphs 17, 18, and 19 of
the pre-sentence investigation report ("PSR") are
for New Jersey first degree ...