United States District Court, D. Maine
ORDER DENYING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE AND GRANTING RELIEF UNDER 28 U.S.C. § 2255
JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Melvin Lee Vitko pleaded guilty to being a felon in possession of firearms and was sentenced to 188 months imprisonment under the residual clause of the Armed Career Criminal Act (ACCA). Four years later, Mr. Vitko moved for relief under 28 U.S.C. § 2255, and the Magistrate Judge issued a recommended decision recommending that the Court deny the motion on timeliness grounds. Subsequently, the United States Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), holding that the imposition of an increased sentence under the residual clause of the ACCA violates the United States Constitution’s guarantee of due process. Based on Johnson, the Court concludes that Mr. Vitko is serving a sentence that violates the United States Constitution and relief is warranted under 28 U.S.C. § 2255.
I. PROCEDURAL HISTORY
A. The Indictment and Sentencing
On September 11, 2008, a federal grand jury indicted Melvin Vitko on two-counts as a felon in possession of five firearms (Count One), a violation of 18 U.S.C. § 922(g)(1), and for possession of the same five firearms knowing they were stolen (Count 2), a violation of 18 U.S.C. § 922(j). Indictment at 1-3 (ECF No. 1) (Indictment). The Indictment asserted seventeen prior convictions in the state of Florida: eight burglaries, four grand thefts, an escape, uttering a forged check, conspiracy to escape, felonious possession of firearms, and dealing in stolen property. Id. Under the ACCA, 18 U.S.C. § 924(e), Mr. Vitko was subject to a mandatory minimum of fifteen years in prison if the Government could prove that he had at least three prior convictions for “violent felonies.”
Pursuant to a plea agreement, on November 7, 2008, Mr. Vitko pleaded guilty to Count 1 of the Indictment. Plea Agreement (ECF No. 13); Entry (ECF No. 15). The Plea Agreement stated that Mr. Vitko was subject to a mandatory minimum of fifteen years and up to life imprisonment for his alleged violation of the ACCA. Plea Agreement at 2. In exchange for Mr. Vitko’s guilty plea, the Government agreed (1) to recommend a three-level reduction for acceptance of responsibility if the Court determined that his adjusted United States Sentencing Guidelines (U.S.S.G.) offense level was sixteen or higher, and (2) to move for the dismissal of count two of the Indictment. Id. at 2-3.
The revised presentence investigation report (PSR) provided the following offense level computations under the 2008 edition of the sentencing guidelines: pursuant to U.S.S.G. § 2K2.1(a)(6)(A), because as a convicted felon, Mr. Vitko was prohibited under 18 U.S.C. 922(g)(1) from shipping, transporting, or possessing a firearm at the time of the offense, a base offense level of fourteen applied; pursuant to U.S.S.G. § 2K2.1(b)(1)(A), two points were added because the offense involved five firearms; pursuant to § 2K2.1(b)(4)(A), an additional two points were added because the firearms were stolen; four points were added, pursuant to § 2K2.1(b)(6), because Mr. Vitko possessed the firearms in connection with another offense, in this case burglary; and pursuant to U.S.S.G. § 3E1.1, three points were subtracted for his acceptance of responsibility, for an adjusted offense level of nineteen.
The revised PSR also identified five prior violent felony convictions, four burglaries and one conspiracy to escape. Two of the burglaries involved unlawful entries into homes, and two involved unlawful entries into businesses, all with the intent to commit theft and all in violation of Florida Statute section 810.02. The Government maintained that with any three of Mr. Vitko’s prior convictions he would be considered an armed career criminal under the ACCA. In the PSR, due to Mr. Vitko’s status as a career criminal under the ACCA and his use or possession of the firearms in connection with a burglary, pursuant to U.S.S.G. § 4B1.4(b)(3)(A), the adjusted offense level was determined to be thirty-four, and after three points were subtracted for his acceptance of responsibility, the total offense level was calculated to be thirty-one.
On April 14, 2009, the Court sentenced Mr. Vitko to 188 months imprisonment, five years supervised release, and a one hundred dollar special assessment. Entry (ECF No. 24); J. (ECF No. 27). In accordance with the plea agreement, Mr. Vitko could not and did not appeal the conviction, nor did he contest the enforceability of the appeal waiver provision. Sentencing Tr., 27:12-28:13 (ECF No. 44.) (Tr.); Plea Agreement at 3. Although the plea agreement did not preclude an appeal of the sentence, he did not appeal the sentence. Id. On May 16, 2009, the amended judgment became final at the expiration of the appeal period.
B. 28 U.S.C. § 2255 Appeal
Mr. Vitko represented that he placed his 28 U.S.C. § 2255 motion in the prison mailing system on April 18, 2014; his motion was filed on April 23, 2014. Mot. to Vacate, Set Aside or Correct Sentence at 13 (ECF No. 32). On June 9, 2014, he filed but later withdrew a motion to amend his § 2255 motion. Mot. to Amend/Suppl. (ECF No. 35); Letter re Mot. to Amend (ECF No 45). On August 19, 2014, the Government filed a motion for summary dismissal of Mr. Vitko’s § 2255 motion. Gov’t’s Mot. for Summ. Disposition of “Mot. under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF No. 50). Mr. Vitko replied to the Government’s motion on October 24, 2014. Pet’r’s Reply to Gov’t’s Mot. for Summ. Disposition of Mot. to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (ECF No. 57). On January 15, 2015, the Magistrate Judge issued a recommended decision for the Court to deny relief and dismiss Mr. Vitko’s § 2255 motion. Recommended Decision on 28 U.S.C. § 2255 Mot. (ECF No. 58) (Rec. Dec.).
C. The Impact of Johnson
On January 26, 2015, Mr. Vitko filed two motions, both seeking to stay proceedings regarding his § 2255 motion. Pet’r’s Mot. to Stay Proceedings regarding Pending Pet. for Writ of Habeas Corpus under 28 U.S.C. § 2255. (ECF No. 59) (First Mot. to Stay); Pet’r’s Mot. Requesting Stay of Proceedings relating to Pending 28 U.S.C. § 2255 Pet. (ECF No. 60) (Second Mot. to Stay). The motions cited the United State Supreme Court’s January 9, 2015 order to the parties in Johnson v. United States to brief and argue “[w]hether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(B)(ii), is unconstitutionally vague.” Second Mot. to Stay at 1. Mr. Vitko urged that since his “predicate offenses are only ‘violent felonies’ when viewed in the context of the residual clause, a decision by the Supreme Court that 18 U.S.C. [§] 924(e)(2)(B)(ii) is unconstitutionally vague would favorably affect the outcome of this case now before the court.” Id. at 2. The Government did not object. Gov’t’s Resp. to Pet.’s Mots. Requesting Stay of Proceedings Relating to Pending 28 U.S.C. § 2255 (ECF No. 62). On February 11, 2015, the Magistrate Judge granted Mr. Vitko’s motions for stay. (ECF Nos. 63, 64).
On June 26, 2015, the Supreme Court decided Johnson v. United States, holding that imposing an increased sentence under the residual clause of the ACCA violates the Constitution’s guarantee of due process. 135 S.Ct. 2551 (2015). On July 7, 2015, citing Johnson, Mr. Vitko filed motions to amend and supplement his § 2255 motion. Mot. for Leave to Amend 28 U.S.C. § 2255 (ECF No. 65); Mot. for Leave to Supp. 28 U.S.C. § 2255 (ECF No. 66). On July 20, 2015, Mr. Vitko filed his objections to the Magistrate Judge’s Recommended Decision and a supplemental brief on the Johnson decision. Objs. to the Magistrate’s Recommendation and Suppl. Brief on Johnson v. United States (ECF No. 67) (Def.’s Obj.). Subsequently, on July 27, 2015, Mr. Vitko filed a letter of supplemental authority, providing recent caselaw stemming from the Johnson decision. Letter of Suppl. Authority (ECF No. 70). On August 11, 2015, the Government filed a response to Mr. Vitko’s July 27, 2015 letter, arguing against his assertion that Johnson stands for the proposition that he is entitled to relief under § 2255. Gov’t’s Resp. to Letter of Suppl. Authority (ECF No. 71). Mr. Vitko filed a reply to the Government’s response on August 20, 2015. Pet.’s Mot. to Strike Gov’t’s Resp. as Argumentative/Pet.’s Reply and Objs. to Gov’t’s Response to Pet.’s Letter of Suppl. Authority (ECF No. 72).
The Court appointed counsel to represent Mr. Vitko on September 2, 2015. Order Appointing Counsel (ECF No. 76). On September 22, 2015, through his newly appointed counsel, Mr. Vitko filed a memorandum in support of his § 2255 motion, specifically addressing the impact of Johnson. Mem. of Law in Supp. of Def.’s Mot. to Vacate, Set Aside, or Correct Sentence (Johnson Issue) (ECF No. 79) (Def.’s Johnson Mem.). The Government responded to Mr. Vitko’s memorandum on November 24, 2015. Gov’t’s Resp. to Mem. in Supp. of Def.’s Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 86) (Gov’t’s Opp’n Mem.). Mr. Vitko replied on December 9, 2015. Def.’s Reply to the Gov’t’s Resp. to Def.’s Mem. in Supp. of Mot. to Vacate, Set Aside or Correct Sentence (ECF No. 87) (Def.’s Reply Mem.).
II. THE PARTIES’ POSITIONS
A. The Magistrate Judge’s Recommended Decision
On January 15, 2015, the Magistrate Judge issued his Recommended Decision that the Court deny relief and dismiss Mr. Vitko’s § 2255 motion. Rec. Dec. at 11. The Magistrate Judge’s determination centered on the issue of the timeliness of Mr. Vitko’s § 2255 motion. Id. at 7. Section 2255 provides:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of-
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f)(1)-(4). As Mr. Vitko conceded that because he filed his § 2255 motion well over one year after judgment became final, § 2255(f)(1) did not apply, and as § 2255(f)(2) and (4) were not relevant, the Magistrate Judge focused his analysis on § 2255(f)(3). See Rec. Dec. at 7-11. Mr. Vitko argued that the Supreme Court’s decision of Descamps v. United States, 133 S.Ct. 2276 (2013) triggered § 2255(f)(3), asserting Descamps recognized a new right applicable to his case. Id. at 7-8. The Magistrate Judge disagreed.
In Descamps, the Supreme Court outlined the method courts must use to determine whether a prior conviction is a “violent felony” under the ACCA for purposes of enhanced sentencing. ...