United States District Court, D. Minnesota
K. Bell, United States Attorney counsel for plaintiff.
S. Becker, Office of the Federal Defender, counsel for
S. Doty, Judge United States District Court
matter is before the court upon the motion by defendant
Michael Edward Willis to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. Based on a review of
the file, record, and proceedings herein, and for the
following reasons, the court grants the motion.
31, 2011, Willis pleaded guilty to Armed Career Criminal in
Possession of a Firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e)(1). The presentence
investigation report (PSR) concluded that Willis was subject
to the fifteen-year mandatory minimum sentence imposed by the
Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(1),
because he had four previous violent felonies: (1) Michigan
unarmed robbery; (2) Minnesota first-degree burglary; (3)
Minnesota simple robbery; and (4) Michigan breaking and
entering. On November 1, 2011, the court sentenced Willis to
180 months' imprisonment, the statutory minimum, and
Willis did not object or appeal his sentence.
November 30, 2012, Willis filed his first pro se motion under
28 U.S.C. § 2255, which the court denied on March 19,
2013. See ECF Nos. 49, 58. On June 16, 2016, Willis
filed a second pro se § 2255 motion,  arguing that his
sentence is unconstitutional in light of United States v.
Johnson, 135 S.Ct. 2551 (2015). See ECF No. 71. The
government opposes the motion.
Availability of Relief Under Johnson
the ACCA, a defendant with three or more previous convictions
for a “violent felony” faces at least fifteen
years' imprisonment. See 18 U.S.C. 924(e). A
“violent felony” is any crime that (1) “has
as an element the use, attempted use, or threatened use of
physical force against the person of another [the force
clause];” or (2) “is burglary, arson, or
extortion, involves the use of explosives [the
enumerated-offense clause], or otherwise involves conduct
that presents a serious potential risk of physical injury to
another [the residual clause].” 18 U.S.C. §§
924(e)(2)(B)(i)-(ii). In Johnson, the Supreme Court
struck down the residual clause as unconstitutionally vague.
See Johnson, 135 S.Ct. at 2563.
argues that his sentence is unconstitutional because his four
predicate offenses were based on the residual clause. The
government responds that Willis is not entitled to relief
because he has not shown that the court relied on the
residual clause in sentencing him. See In re Moore,
830 F.3d 1268, 1273 (8th Cir. 2016) (“[T]he district
court cannot grant relief in a § 2255 proceeding unless
the movant shows ... that he was sentenced using the residual
clause and that the use of that clause made a difference in
Willis must show he is entitled to relief under
Johnson, he need not meet the insurmountable burden
of reading the court's mind. At sentencing, neither the
court nor the PSR stated which clause qualified Willis's
felonies as predicate offenses. Further, neither party
presented evidence or argument on the issue. Under these
circumstances, the court concludes that it is possible it
relied upon the residual clause at sentencing, and Willis has
shown he is entitled to relief. See Bevly v. United
States, No. 4:16CV965, 2016 WL 6893815, at *1 (E.D. Mo.
Nov. 23, 2016) (“In a situation where the Court cannot
determine under what clause the prior offenses were
determined to be predicate offenses, the better approach is
for the Court to find relief is available, because the Court
may have relied on the unconstitutional residual
clause.”); Villanueva v United States, 191
F.Supp.3d 178, 184 (D. Conn. 2016) (“The court
considers, among other facts, the absence of any discussion
in court concerning under which of the ACCA subsections
[defendant's] assault convictions qualified, as strong
circumstantial evidence that the court used ... the
broad-sweeping Residual Clause.”). The court, however,
must examine whether Willis's felonies remain predicate
offenses under either the force or enumerated-offense
clauses. If so, the court's reliance on the residual
clause was harmless, and Willis is not entitled to relief.
See United States v. Ladwig, 192 F.Supp.3d 1153,
1159 (applying harmless error analysis to a § 2255 claim
1985 Michigan ...