United States District Court, D. Vermont
OPINION AND ORDER
William K. Sessions III District Court Judge
Jackson, proceeding with counsel, has filed a motion for
relief from his conviction and sentence pursuant to 28 U.S.C.
§ 2255. Jackson was sentenced under the Armed Career
Criminal Act (“ACCA”), 18 U.S.C. § 924(e),
and is serving a mandatory minimum 15-year sentence. His
pending Section 2255 motion seeks relief on the basis of the
Supreme Court's decision in Johnson v. United
States, 135 S.Ct. 2551 (2015), which declared the
ACCA's residual clause unconstitutionally vague.
January 19, 2017, Magistrate Judge John M. Conroy issued a
Report and Recommendation (“R & R”)
recommending that Jackson's motion be granted. The
government objects to the R&R, and both parties have
submitted additional briefing. As set forth below, the Court
adopts the Magistrate Judge's R & R with
relevant facts are set forth in the Magistrate Judge's
thorough R & R, and the Court assumes the parties'
familiarity with those facts. Briefly stated, Jackson was
convicted of being a felon in possession of a firearm, and
was sentenced in 2009 to a 15-year term of imprisonment under
the ACCA on the basis of three prior convictions: a 1971
conviction in Michigan for attempted armed robbery, a 1991
conviction in Massachusetts for armed robbery, and a 1999
conviction in Vermont for conspiracy to distribute cocaine.
There was no discussion during the change of plea colloquy or
the sentencing proceedings about whether, or in what way,
those prior felonies constituted violent felonies under the
ACCA. Jackson did not pursue a direct appeal.
25, 2016, Jackson moved pursuant to 28 U.S.C. § 2255 to
vacate his sentence in light of Johnson, arguing
that his armed robbery and attempted armed robbery
convictions no longer qualify as predicate offenses under the
ACCA. The government opposed the motion, initially arguing
procedural default and lack of timely filing. The government
also argued that Jackson's binding plea agreement
forecloses a simple remand for re-sentencing.
Magistrate Judge concluded that although Jackson cannot show
either cause and prejudice or actual innocence to excuse the
failure to raise his arguments on direct appeal, relief is
warranted because his sentence, post-Johnson,
exceeds the statutory maximum. The Magistrate Judge further
found that because Jackson's motion relies upon the 2015
Johnson decision, it was timely filed. Finally, the
Magistrate Judge analyzed Jackson's prior offenses and
concluded that his Massachusetts armed robbery and Michigan
attempted armed robbery convictions no longer qualify as
predicate offenses under the ACCA.
response to the R & R, the government resubmits its
arguments with respect to procedural default and timeliness.
The government also contends that the Massachusetts and
Michigan convictions remain predicate offenses under the
ACCA. Jackson asks the Court to adopt the R&R, though
modified to find that there is cause and prejudice for
Jackson's failure to file a direct appeal.
district judge “shall make a de novo
determination of those portions of the [magistrate
judge's] report or specified proposed findings or
recommendations to which objection is made. A judge of the
court may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C); see
Fed. R. Civ. P. 72(b).
Cause and Prejudice
Section 2255 motion may not be used as a substitute for
direct appeal. Marone v. United States, 10 F.3d 65,
67 (2d Cir. 1993) (per curiam) (citing United States v.
Frady, 456 U.S. 152, 165 (1982)). Accordingly, where a
federal prisoner attempts to use a Section 2255 motion to
assert a claim that could have been raised on direct appeal,
the claim will be procedurally barred unless the prisoner
shows (1) cause for failing to raise the claim on direct
appeal and prejudice therefrom, or (2) actual innocence.
Zhang v. United States, 506 F.3d 162, 166 (2d Cir.
2007); see also Bousley v. United States, 523 U.S.
614, 622 (1998).
did not file a direct appeal, and is therefore raising his
Johnson argument for the first time in this
collateral proceeding. The government argues that he cannot
establish cause for his procedural default because his
argument is not novel and was not unavailable at the time of
his appeal. The Court disagrees.
constitutional claim is sufficiently novel to overcome
procedural default if the “legal basis for the claim
was not reasonably available to counsel” in time for
direct appeal. Reed v. Ross, 468 U.S. 1, 16 (1984).
As the Supreme Court explained in Reed, a claim is
not reasonably available to counsel where “a decision
of this Court . . . explicitly overrules one of our