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United States v. Jackson

United States District Court, D. Vermont

September 12, 2017

Kenneth Jackson, Petitioner,
v.
United States of America, Respondent.

          OPINION AND ORDER

          William K. Sessions III District Court Judge

         Kenneth 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.

         On 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 modifications.

         Factual Background

         The 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.

         On June 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.

         The 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.

         In 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.

         Discussion

         A 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).

         I. Cause and Prejudice

         A 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).

         Jackson 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.

         A 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 ...


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