United States District Court, D. Connecticut
RULING RE: PETITIONER’S SUCCESSIVE MOTION TO
VACATE, SET ASIDE, OR CORRECT SENTENCE (DOC. NO. 1)
C. Hall United States District Judge
Villanueva (“Villanueva”) moves to vacate, set
aside, or correct his sentence under section 2255 of title 28
of the United States Code (“section 2255”).
Motion to Vacate, Set Aside or Correct Sentence
(“Motion”) (Doc. No. 1). Villanueva claims that
his sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), is invalid in
light of Johnson v. United States, 135 S.Ct. 2552
(2015). Motion at 1. The United States opposes the Motion on
the ground that Villanueva’s prior convictions qualify
as ACCA predicates notwithstanding Johnson.
Gov’t’s Resp. to Villanueva’s Pet.
(“Opposition”) (Doc. No. 5) at 1.
reasons set forth below, the Motion is GRANTED, the sentence
VACATED, and the case will be set down for resentencing.
3, 1999, a Bridgeport grand jury returned an indictment
charging Villanueva with one count of being a felon in
possession of a firearm, in violation of section 924(g)(1) of
title 18 of the United States Code. Indictment (Crim. Case
No. 99-CR-112 (Doc. No. 1)). The Indictment further alleged
four prior felony convictions: the first for the sale of
narcotics on January 27, 1988, in violation of section
21a-277(a) of the Connecticut General Statutes; the second
for possession of narcotics with intent to sell on May 29,
1990, in violation of section 21a-279(a) of the Connecticut
General Statutes; the third for assault in the first degree
on May 29, 1990, in violation of section 53a-59(a); and the
fourth for assault on an officer on November 10, 1992, in
violation of section 53a-167(c). Id. On November 10,
1999, a jury convicted Villanueva of being a felon in
possession of a firearm.
February 1, 2000, this court held a sentencing hearing. At
that hearing, the court concluded that the two prior drug
convictions qualified as “serious drug offenses”
within the meaning of ACCA, see Sent’g Trans.
(“Transcript”) (Crim. Case No. 99-CR-112 (Doc.
No. 57)) 12:2-13:11, and, without discussion, concluded that
at least one of the two assault convictions constituted
“violent felonies” within the meaning of ACCA.
The parties stipulated to the fact that Villanueva was ACCA
eligible, and the court did not state on the record under
which provision of ACCA the assaults constituted
“violent felonies.” See generally id.
October 2, 2000, the Second Circuit affirmed
Villanueva’s conviction and sentence. Mandate (Crim.
Case No. 99-CR-112 (Doc. No. 60)). On December 31, 2000,
Villanueva’s time to file for a petition for a writ of
certiorari expired, Sup. Ct. R. 13, and his conviction thus
became final for purposes of collateral review under section
2255 of title 28 of the United States Code. Clay v.
United States, 537 U.S. 522, 525 (2003).
29, 2003, this court denied Villanueva’s first Motion
under section 2255. Ruling (Crim. Case No. 99-CR-112 (Doc.
No. 80)). The Second Circuit affirmed the denial of his first
Motion on July 19, 2005. Mandate (Crim. Case No. 99-CR-112
(Doc. No. 101)).
February 16, 2016, the Second Circuit granted
Villanueva’s Motion for Leave to File a Successive
Section 2255 Motion. See Mandate (Crim. Case No.
99-CR-112 (Doc. No. 119)). In its Mandate, the Circuit
directed this court “to address, as a preliminary
inquiry under [28 U.S.C.] § 2244(b)(4), whether the
Supreme Court’s decision in Johnson[ v.
United States, 135 S.Ct. 2551 (2015)] announced a new
rule of constitutional law made retroactive to cases on
collateral review, and thus permits [Villanueva]’s new
§ 2255 claim to proceed.” Id. at 2. The
court further directed this court to “determine whether
the assault convictions remain proper ACCA predicates after
Johnson, and what evidence may be considered in
making that determination.” Id.
filed the instant Motion on February 23, 2016. On April 18,
2016, the Supreme Court ruled that Johnson announced
a new substantive rule that has retroactive effect in cases
on collateral review. Welch v. United States, 136
S.Ct. 1257, 1265 (2016).
2255 of title 28 of the United States Code provides, in
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States, or that the court
was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or
is otherwise subject to collateral attack, may move the court
which imposed the sentence to vacate, set aside or correct
28 U.S.C. § 2255(a). As a general matter,
“collateral attack on a final judgment in a criminal
case is generally available under [section] 2255 only for a
constitutional error, a lack of jurisdiction in the
sentencing court, or an error of law or fact that constitutes
a fundamental defect which inherently results in [a] complete
miscarriage of justice.” Graziano v. United
States, 83 F.3d 587, 589-90 (2d Cir. 1996) (citation and
internal quotation marks omitted).
movant carries the burden of proving, by a preponderance of
the evidence, that he is entitled to relief under section
2255. See, e.g., Triana v. United States,
205 F.3d 36, 40 (2d Cir. 2000).
crux of Villanueva’s claim is that he was sentenced
under ACCA pursuant to the Residual Clause. See
Motion at 2. Because, as will be discussed below, the
Residual Clause was illegal at the time he was sentenced,
see Welch v. United States, 136 S.Ct. 1257, 1268
(2016) (holding that Johnson v. United States, 135
S.Ct. 2551, 2557 (2015), applies retroactively to cases on
collateral review), Villanueva claims that his sentence was
imposed in violation of the Due Process Clause of the Fifth
Amendment to the United States Constitution, Motion at 2, and
that he is thus entitled to relief expressly under section
response, the United States in effect has raised a harmless
error defense, Opposition at 7 (citing Brecht v.
Abrahamson, 507 U.S. 619 (1993) and Underwood v.
United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying
Brecht’s harmless error standard to motions
under section 2255)). It argues that, under the law at the
time he was sentenced, Villanueva’s convictions were
violent felonies under the Elements Clause. Opposition at
10-13. Consequently, the United States claims, any error
committed by sentencing him under the Residual
Clause-assuming such error can be found-is
the first task before the court is to determine whether
Villanueva has proven by a preponderance of the evidence that
he was sentenced under the Residual Clause. Triana,
205 F.3d at 40. If he was so sentenced, his “sentence
was in excess of the maximum authorized by law, ” 28
U.S.C. § 2255(a); see also, e.g., Lee v.
United States, No. 3:16-cv-6009-MAT, 2016 WL 1464118, at
*3 (W.D.N.Y. Apr. 12, 2016). The court’s second task is
to determine, should an error have occurred, whether that
error was amenable to harmless error review, and, to the
extent that it is, whether there is “grave doubt”
as to whether the error “ha[d] a substantial effect or
influence on determining” Villanueva’s sentence.
O’Neal v. McAninch, 513 U.S. 432, 435 (1995);
see also Brecht, 507 U.S. at 637, and Peck v.
United States, 106 F.3d 450, 454 (2d Cir. 1995). If the
court harbors “grave doubt, ” “the
petitioner must win.” O’Neal, 513 U.S.
if the court determines that there was error, and that the
error was not harmless, Villaneuva is entitled to relief, his
sentence must be vacated, and the case must be set down for
the first question, the court concludes, in light of the
record of Villanueva’s sentencing, that it is more
likely than not that he was sentenced under ACCA’s
Residual Clause. The court considers, among other facts, the
absence of any discussion in court concerning under which of
the ACCA subsections Villanueva’s assault convictions
qualified, as strong circumstantial evidence that the court
used the most obvious path to the conclusion that the crimes
were ACCA eligible-the broad-sweeping Residual Clause.
Specifically, the Residual Clause’s plain language
would readily have encompassed a crime such as first degree
assault with a minimum of statutory analysis, insofar as
first degree assault, which has “physical injury”
as an element, necessarily “involves conduct that
presents a serious potential risk of physical injury to
another, ” 18 U.S.C. § 924(e)(2)(B)(ii).
Consequently, Villanueva’s Due Process rights were
violated when he was sentenced as an Armed Career Criminal in
respect to the second question, harmless error, the court
first observes that the constitutional infirmity at issue in
this case should not be amenable to harmless error review.
The court then concludes, on the assumption that harmless
error review does apply to a Johnson violation, that
the error was not harmless because neither statute under
which Villanueva was previously convicted for assault
qualified as a violent felony under ACCA. The court reaches
this conclusion because neither statute has “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), or, to the extent that they do, because the
United States has not proven by competent evidence that he
was convicted under a subsection of the statutes that do have
such an element.
Ruling proceeds in the following manner. Subsection (A)
explains ACCA’s structure, the effect Johnson
and Welch have had on ACCA, and the court’s
bases for concluding that Villanueva was sentenced under the
Residual Clause. The subsection that follows explains the
court’s conclusion that Villanueva was sentenced
unconstitutionally. Subsection (C) explains that the error
was not harmless because Villanueva’s convictions under
Connecticut General Statutes 53a-59(a)(1) and 53a-167c did
not qualify as violent felonies under any subsection of ACCA
that was valid at the time of his sentencing.
ACCA and the Categorical Approach
924(e) of title 18 of the United States Code requires a
sentencing court to impose a mandatory minimum sentence of
fifteen years’ incarceration upon a defendant convicted
of being a felon in possession of a firearm who had sustained
“three previous convictions . . . for a violent felony
or a serious drug offense, or both, committed on occasions
different from one another.” 18 U.S.C. §
924(e)(1). The statute further provides that:
[T]he term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year . .
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves the use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2)(B)(i)-(ii). Subsection (i) is
commonly referred to as the “Elements Clause;”
the first half of subsection (ii) as the “Enumerated
Felonies Clause;” and the second half of subsection
(ii), beginning with “or otherwise involves, ” as
the “Residual Clause.” Id. At the time
Villanueva’s conviction became final, as is true today,
“the Government bears the burden of establishing (by a
preponderance of the evidence), the existence of prior
violent felony convictions when seeking a sentence
enhancement pursuant to [ACCA].” United States v.
Rosa, 507 F.3d 142, 151 (2d Cir. 2007) (quoting
United States v. Brown, 52 F.3d 415, 425 (2d Cir.
1995)). Notably, the fact of a prior conviction is the only
form of evidence that raises a statutory maximum penalty that
need not be found by a jury, and may instead by found by a
judge. Apprendi v. New Jersey, 530 U.S.
466, 490 (2000) (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to
a jury and proven beyond a reasonable doubt.”).
finding that a defendant qualifies for the ACCA enhancement
also affects his sentencing calculation under the United
States Sentencing Guidelines. Under the Guidelines in effect
when Villanueva was sentenced, and under the Guidelines in
effect today, the ACCA guideline was found at section 4B1.4.
It raises the Base Offense Level for being a felon in
possession of a firearm from as low as 20 to as high as 34.
Compare U.S.S.G. § 2K2.1 (providing Base
Offense Levels for firearms offenses) with U.S.S.G.
§ 4B1.4 (providing Base Offense Levels for ACCA status
Villaneuva was sentenced, as is also true today, courts were
required to engage in “the categorical approach”
announced in Taylor v. United States, 495 U.S. 575
(1990), to determine whether a defendant is eligible for an
ACCA enhancement. This approach has, since Taylor,
required the court to determine only whether the
“statutory definitions-i.e., the elements-of a
defendant’s prior offenses, and not . . . the
particular facts underlying those convictions, ” meet
the definition of “violent felony” under ACCA.
Descamps v. United States, 133 S.Ct. 2276, 2283
(2013) (internal quotation marks and citations omitted). The
purpose of this approach is well-established: by requiring
sentencing courts to determine only whether a prior
conviction categorically constitutes a ...