United States District Court, D. Connecticut
MEMORANDUM AND ORDER
Michael P. Shea, U.S.D.J.
Brunstorff filed a motion to vacate his sentence under 28
U.S.C. § 2255 (“Section 2255”). On August
10, 2012, Judge Ellen Burns sentenced Mr. Brunstorff to 180
months of imprisonment followed by five years of supervised
release after Mr. Brunstorff pleaded guilty to being a felon
in possession of a firearm and ammunition. The sentence
rested in part on Judge Burns' determination that Mr.
Brunstorff was subject to a mandatory minimum sentence of 180
months under the Armed Career Criminal Act, 18 U.S.C. §
924(e), (“ACCA”). The ACCA imposes such a minimum
sentence on felons in possession of a firearm who have three
previous convictions for a “violent felony, ” and
Judge Burns determined that Mr. Brunstorff's New York
state convictions for robbery, assault, and attempted assault
qualified as such. Later, in 2014, Judge Burns denied Mr.
Brunstorff's first motion seeking to vacate his sentence
under Section 2255.
second Section 2255 petition, Mr. Brunstorff argues that his
ACCA-enhanced sentence must be vacated because his prior
convictions are not “violent felonies” under the
ACCA. Specifically, Mr. Brunstorff argues that at sentencing
Judge Burns applied the ACCA's residual clause, which was
subsequently held unconstitutional in the Supreme Court's
decision in Johnson v. United States, 135 S.Ct. 2551
(2015) (hereinafter “2015 Johnson”).
Alternatively, Mr. Brunstorff argues that even if Judge Burns
applied the force clause of the ACCA, which remains in
effect, his sentence must be vacated because his prior
convictions are not violent felonies under the Supreme
Court's interpretation of that clause in Johnson v.
United States, 130 S.Ct. 1265, 559 U.S. 133 (2010)
(hereinafter “2010 Johnson”). On July
19, 2016, the Second Circuit granted Mr. Brunstorff leave to
file this second Section 2255 petition, and directed this
Court to address, “as a preliminary inquiry . . .
whether the Supreme Court's decision in 
Johnson entitles [Mr. Brunstorff] to relief.”
(ECF No. 6-1 at 1.)
reasons explained below, I find that 2015 Johnson
does not entitle Mr. Brunstorff to relief because the
available evidence in the record suggests that Judge Burns
did not sentence Mr. Brunstorff under the residual clause. In
addition, even if she did, Mr. Brunstorff's claim would
fail on the merits, because currently existing Second Circuit
precedent holds that Mr. Brunstorff's prior convictions
are violent felonies under the ACCA.
Conviction and Sentencing
March 22, 2011, New London, Connecticut police officers
responded to a call reporting a domestic disturbance at an
apartment in New London. (Pre-Sentence Report
(“PSR”), No. 12-CR-0004, ECF No. 68 ¶ 7.)
When they arrived, they found a baby lying face down in a
crib in the apartment. (Id.) Meanwhile, Jillian
Jalkanen had traveled to the police department where she
reported that her boyfriend, Mr. Brunstorff, had assaulted
her. (Id.) The officers observed in the apartment in
plain view boxes with .357 and .380 caliber ammunition and
narcotics paraphernalia, after which a search warrant was
secured for the residence. (Id.) As a result of a
search, officers located a loaded .380 semi-automatic pistol
with an obliterated serial number and a holster and a loaded
.357 revolver secreted in the wall of the bathroom and
wrapped in a cloth. (Id.)
January 5, 2012, a federal grand jury returned a two-count
indictment charging Mr. Brunstorff with possession of
firearms and ammunition by a convicted felon in violation of
18 U.S.C. §§ 922(g)(1) and 924(e). Mr. Brunstorff
pleaded guilty before Judge Burns to Count One of the
plea agreement's section on penalties stated:
“Because the defendant has three previous convictions
for violent felony and/or serious drug offenses committed on
occasions different from one another, the defendant faces a
mandatory minimum term of incarceration of fifteen years and
up to life imprisonment.” (Plea Agreement, No.
12-CR-0004, ECF No. 45 at 1.) The plea agreement's
section on the Sentencing Guidelines further stated,
“The defendant understands that, in any event, his
sentence of imprisonment cannot be less that [sic]
fifteen years.” (Id. at 4.)
sentencing, the U.S. Probation Office prepared a pre-sentence
report (“PSR”) describing the following of Mr.
Brunstorff's prior New York state convictions: a
conviction for two counts of robbery in the first degree in
violation of New York Penal Law § 160.15(2)
(“forcibly steals property” and “[i]s armed
with a deadly weapon”) for conduct occurring on May 25,
1993; a conviction for assault in the second degree and
attempted assault in the second degree for conduct occurring
on May 29, 1997 and November 4, 1997, respectively, in
violation of New York Penal Law § 120.05(2)
(“[w]ith intent to cause physical injury to another
person, he causes such injury . . . by means of a deadly
weapon or a dangerous instrument”); and a conviction
for assault in the second degree in violation of New York
Penal Law § 120.05(3) (with intent to prevent a law
enforcement or EMS person “from performing a lawful
duty, he causes physical injury to such” person) for
conduct occurring on August 10, 1998. (PSR ¶¶ 12,
further stated, “[T]he parties agree that [Mr.
Brunstorff] is an armed career criminal based on three or
more violent felony offenses committed on different
occasions.” (PSR ¶ 12; see also Id.
¶ 63 (“The crimes of violence that qualify him as
an armed career criminal occurred when he was 16, and while
in prison in his early 20s. As a result, Mr. Brunstorff is
facing a mandatory minimum term of 15 years'
imprisonment.”).) The PSR identified the statutory
minimum term of imprisonment as 15 years under 18 U.S.C.
§ 924(e). (PSR ¶ 50.) The Probation Office
calculated the imprisonment range under the Sentencing
Guidelines as 188 to 235 months, based on a total offense
level of 31 and a criminal history category of VI. (PSR
August 10, 2012, Judge Burns sentenced Mr. Brunstorff to 180
months (or 15 years) imprisonment, an eight-month downward
departure from the Guidelines range, and five years of
supervised release. During the sentencing proceeding, Judge
Burns adopted the facts and Guidelines calculation set forth
in the PSR and stated that Mr. Brunstorff was “facing a
mandatory minimum sentence of 15 years, ” but did not
state whether the sentence was based on a particular clause
of the ACCA. (Sentencing Tr. at 14, 17.) Mr. Brunstorff did
not appeal his conviction or sentence.
Mr. Brunstorff's First Section 2255 Petition
November 8, 2013, Mr. Brunstorff filed a motion to vacate,
set aside, or correct his sentence under Section 2255. (No.
13-CV-1657 (EBB), ECF No. 1.) Mr. Brunstorff argued that his
Sixth Amendment rights were violated by his attorney's
ineffective assistance of counsel. Mr. Brunstorff also argued
that the Court erred in determining that he was an armed
career offender, in contravention of the Supreme Court's
decisions in Descamps v. United States, 133 S.Ct.
2276 (2013) and Alleyne v. United States, 133 S.Ct.
15, 2014, Judge Burns denied Mr. Brunstorff's petition.
United States v. Brunstorff, No. 13-CV-1657 (EBB),
2014 WL 2002735 (D. Conn. May 15, 2014). The Court ruled that
the petition was time-barred, as Mr. Brunstorff filed it more
than one year after his sentence became final. Id.
at *2. The Court also ruled that the procedural bar was not
excused, as neither of the Supreme Court rulings Mr.
Brunstorff relied on recognized a new right made
retroactively applicable, and as the facts supporting his
ineffective assistance of counsel claim were known to him
prior to entry of his guilty plea. Id. The Court
also noted that Mr. Brunstorff's petition was meritless
regardless of the procedural bar, finding that there had been
no error in sentencing under the ACCA. Id. at *4. In
rejecting Mr. Brunstorff's argument that the Court erred
at sentencing in finding his prior convictions to be ACCA
predicates, the Court explained:
In this case, the Court did not have a choice between
applying the categorical approach or modified categorical
approach because the statutes of Brunstorff's prior New
York convictions of assault in the second degree, attempted
assault in the second degree, and robbery had indivisible
elements. Indeed, all three of these statutes had previously
been held to be categorically crimes of violence under §
924(e) Specifically, under NYPL § 120.05(2), a person is
guilty of assault in the second degree when: ‘[with
intent to cause physical injury to another person, [he or
she] causes such injury to such person or to a third person
by means of a deadly weapon or a dangerous instrument.'
Under NYPL § 160.10, a person is ‘guilty of
robbery in the first degree when he forcibly steals
property.' Brunstorff's prior convictions were thus
categorically violent felonies under § 924(e)(1) because
they have as elements the use or attempted use of physical
force against the person of another.
Id. The Court declined to issue a certificate of
appealability, finding that Mr. Brunstorff had “not
made a substantial showing of the denial of a constitutional
right.” Id. at *5.
The ACCA, 2015 Johnson, and Welch
ACCA provides, in relevant part:
In the case of a person who violates section 922(g) of this
title and has three previous convictions . . . for a violent
felony or a serious drug offense, or both, committed on
occasions different from one another, such person shall be .
. . imprisoned not less than fifteen years . . . .
18 U.S.C. § 924(e)(1). The ACCA defines “violent
felony, ” in relevant part, as “any crime
punishable by imprisonment by a term exceeding one year . . .
“(i) has as an element the use, attempted use, or
threatened use of physical force against the person of
“(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that presents a
serious potential risk ...