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Wiggan v. United States

United States District Court, D. Connecticut

August 5, 2016

HOPETON WIGGAN, Petitioner,
v.
UNITED STATES OF AMERICA Respondent.

          RULING ON PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          STEFAN R. UNDERHILL United States District Judge.

         On March 27, 2015, Hopeton Wiggan filed a petition to vacate, set aside, or correct his sentence under section 2255 of Title 28 of the United States Code (“section 2255”). See Mot. to Vacate (doc. # 1). Wiggan has since amended his petition twice, so I now consider the third amended petition. See Am. Mot. to Vacate (doc. # 15) (“Amended Petition”).

         In the Amended Petition, Wiggan claims that the sentence he received is invalid because he received a mandatory sentence enhancement based on a provision in the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), that was declared unconstitutional in Johnson v. United States, __U.S. __, 135 S.Ct. 2551 (2015) (“Johnson”). The government opposes the Motion on the ground that Wiggan has at least three qualifying convictions notwithstanding Johnson’s effect.

         For the reasons set forth below, the Amended Petition is granted, the sentence vacated, and the case will be set down for resentencing.

         I. Standard of Review

         Section 2255 provides a prisoner in federal custody an opportunity to challenge the legality of his or her sentence. To obtain relief under section 2255, the petitioner must show that his or her prior sentence was invalid because: (1) it was imposed in violation of the Constitution or the laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) it exceeded the maximum detention authorized by law; or (4) it is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). The standard is a high one; even constitutional errors will not be redressed through a section 2255 petition unless they have had a “substantial and injurious effect” that results in “actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citations omitted); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht’s harmless error standard to section 2255 petition).

         A section 2255 petition “may not be employed to relitigate questions which were raised and considered on direct appeal.” Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also Reese v. United States, 329 F. App’x 324, 326 (2d Cir. 2009) (quoting United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). Such limitation prohibits relitigation of issues that were expressly or impliedly decided on direct appeal. United States v. Ben Zui, 242 F.3d 89, 95 (2d Cir. 2001). A court may only reconsider an earlier decision if it is “confronted with ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.’” United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).

         Furthermore, a section 2255 petition is not intended to be a substitute for a direct appeal. Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007)). A court will not review claims that the petitioner failed to properly raise on direct review “unless the petitioner shows (1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence . . . .” Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

         The petitioner bears the burden of proving, by a preponderance of the evidence, that he is entitled to relief. See Napoli v. United States, 45 F.3d 680, 683 (2d Cir. 1995). A district court is not required to accept the petitioner’s factual assertions as credible “where the assertions are contradicted by the record in the underlying proceeding.” Puglisi v. United States, 586 F.3d 209, 214 (2009). Section 2255 also requires that the district court hold a hearing on the petitioner’s motion unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001) (“[A]lthough a hearing may be warranted, that conclusion does not imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim”) (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)).

         II. Background

         A. Indictment and Plea

         On February 25, 2009, a grand jury returned an indictment charging Hopeton Wiggan with one count of possession of ammunition by a convicted felon in violation of 18 U.S.C. § 922(g)(1) and 924(a)(2).[1] See United States v. Wiggan, No. 3:09-cr-0051 (SRU) (doc. # 1). The government sought an enhanced penalty under the ACCA, which assigns a fifteen-year mandatory minimum sentence to a defendant who has three previous convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924(e)(1). The indictment alleged that Wiggan had the following prior felony convictions:

(1) Possession of narcotics on April 22, 1996, in violation of Connecticut General Statutes § 21a-279(a);[2]
(2) Conspiracy to commit robbery in the first degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-134(a)(4);
(3) Robbery in the first degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-134(a)(4);
(4) Sale of narcotics on November 5, 1999, in violation of Connecticut General Statutes § 21a-277(a);
(5) Conspiracy to commit robbery in the second degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-135;
(6) Robbery in the first degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-134(a)(4); and
(7) Assault in the second degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-60a.[3]

Indictment, Wiggan, No. 3:09-cr-0051 (SRU) (doc. # 1).

         On January 14, 2011, while represented by Attorney Ronald Resetarits, Wiggan pleaded guilty to violations of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).[4] The parties stipulated as part of the plea agreement that Wiggan had been convicted of at least three violent felonies as defined by 18 U.S.C. § 924(e)(2)(B):

(1) Conspiracy to commit robbery in the first degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-134(a)(4);
(2) Robbery in the first degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-134(a)(4);
(3) Conspiracy to commit robbery in the second degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-135; and
(4) Robbery in the first degree on November 5, 1999, in violation of Connecticut General Statutes § 53a-134(a)(4).

Supp. Mem. in Support of Section 2255 Habeas Corpus Pet. 2.

         On January 24, 2012, Attorney Justin Smith became counsel for Wiggan. On May 21, 2012, Attorney Smith filed a supplemental memorandum arguing that Wiggan was not subject to the ACCA’s enhanced sentencing provision.[5]

         B. Sentencing

         At Wiggan’s sentencing on June 1, 2012, I found four of Wiggan’s convictions were qualifying offenses under the ACCA: two robbery convictions in the first degree; assault on a peace officer;[6] and, conspiracy to commit robbery in the first degree.[7] Because there were at least three predicate felonies, I declined to decide whether conspiracy to commit robbery in the second degree qualified as a violent felony. I then imposed the mandatory minimum sentence of 180 months required by the ACCA.

         C. Direct Appeal

         On June 13, 2012, Wiggan filed a Notice of Appeal to the Second Circuit Court of Appeals, arguing that none of the four convictions I found to be violent felonies qualified under the ACCA. The Second Circuit addressed the two convictions for robbery in the first degree, holding, “[F]irst degree robbery under Connecticut law falls squarely within the first prong of the definition of ‘violent felony, ’ which covers offenses having ‘as an element the use, attempted use, or threatened use of physical force against the person of another.’” United States v. Wiggan, 530 F. App’x. 51, 57 (2d Cir. 2013). The Second Circuit then addressed the conviction for assault on a peace officer. The Court held that the conviction under § 53a-167c(a)(1) was categorically a violent felony in accordance with United States v. Brown, 629 F.3d 290, 296 (2d Cir. 2011), which held that the conviction qualified under the portion of section 924(e)(2)(B)(ii) that is referred to as the “Residual Clause.” Id. at 57-58. Because the court had already identified three predicate felonies, it declined to address the conspiracy to commit robbery convictions. Id. at 56. On March 24, 2014, the Supreme Court denied Wiggan’s petition for writ of certiorari. See Wiggan v. United States, 134 S.Ct. 1565 (2014).

         D. Section 2255 Petition

         On March 27, 2015, Hopeton Wiggan filed his initial section 2255 petition. See Mot. to Vacate (doc. # 1). On June 26, 2015, the Supreme Court of the United States decided Johnson v. United States, __U.S. __, 135 S.Ct. 2551 (2015) (“Johnson”), holding that the Residual Clause was unconstitutionally vague. Following that decision, Wiggan filed a motion to amend/supplement his pending motion to include a claim that, after Johnson, conspiracy to commit robbery in the first degree, conspiracy to commit robbery in the second degree, and assault on a peace officer no longer qualified as violent felonies under the ACCA. I granted Wiggan’s motion to amend. Order Granting Mot. to Am. Pet. (doc. # 8).

         After I appointed counsel to represent him, Wiggan filed another amended petition, followed by a memorandum in support of the amended petition. See Amended Petition; Mem. in Support of Am. Mot. to Vacate (doc. # 21). On May 12, 2016, the Office of the Federal Defender submitted an amicus curiae memorandum in support of the Amended Petition. See Mem. in Support of the Am. Mot. to Vacate (Amicus Curiae) (doc. # 25) (“Amicus Brief”). The government responded to all arguments raised on behalf of Wiggan in their memorandum in opposition, filed on May 19, 2016. See Gov’t Resp. to Am. Mot. to Vacate (doc. # 26) (“Gov’t Resp.”).

         III. Discussion

         Wiggan contends that his sentence was imposed in violation of the Due Process Clause of the Fifth Amendment to the United States Constitution. Amended Petition at ¶ 12. Specifically, Wiggan argues that the legality of his prior sentence was upheld based on the Second Circuit’s determination that one of his convictions qualified under the ACCA’s Residual Clause, which has since been declared unconstitutional, see Johnson v. United States, __U.S. __, 135 S.Ct. 2551 (2015); see also Welch v. United States, __U.S. __, 136 S.Ct. 1257, 1268 (2016) (applying Johnson retroactively to cases on collateral review). The government does not contest that Johnson applies retroactively to Wiggan’s case, nor can it earnestly contest that the Second Circuit upheld Wiggan’s prior sentence based on its determination that his conviction for assault on a peace officer qualified as a violent felony under the Residual Clause. Cf. Wiggan, 530 F. App’x at 58 (relying on authority interpreting the Residual Clause).

         In response, the government has raised what amounts to a harmless error defense. Gov’t Resp. at 6; see also Brecht, 507 U.S. at 623. It argues that Wiggan’s conviction is unaffected by Johnson because he has at least three prior convictions that otherwise qualify under section 924(e)(2)(B) notwithstanding the unconstitutionality of the Residual Clause. In other words, even if Wiggan can show that he was sentenced under the Residual Clause in violation of the Constitution, he is unable to show “actual prejudice” because his prior convictions still render him eligible for the ACCA enhancement. See Brecht, 507 U.S. at 623; Underwood, 166 F.3d at 87 (applying Brecht’s harmless error standard to section 2255 petition).

         To evaluate Wiggan’s Amended Petition, I must begin by determining whether the original sentence imposed was unconstitutional. 28 U.S.C. § 2255(a). If I determine that Wiggan was sentenced in an unconstitutional manner, I must then assess whether the error had a “substantial and injurious effect” resulting in ...


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