United States District Court, D. South Dakota, Central Division
MELINDA L. MARSHALL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER DENYING MOTION TO VACATE AND ORDER
DENYING CERTIFICATE OF APPEALABILITY
CHARLES B. KORNMANN, Judge
pleaded guilty to aiding and abetting second degree murder
and was sentenced on May 9, 2005, to 228 months imprisonment.
She appealed her sentence and the United States Court of
Appeals for the Eighth Circuit affirmed. United States v.
Marshall, 436 F.3d 929 (8th Cir. 2006).
has filed a motion to vacate, set aside, or correct sentence
pursuant to 28 U.S.C. § 2255. She contends that she is
entitled to relief under Johnson v. United States,
__U.S.__, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), wherein the
United States Supreme Court struck down as unconstitutionally
vague the so-called residual clause of the Armed Career
Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).
Johnson was made retroactive to cases on collateral
review by the Supreme Court in Welch v. United
States, __U.S.__, 136 S.Ct. 1257, 194 L.Ed.2d 387
conducted an initial consideration of the motion, as required
by Rule 4 of the Rules Governing Section 2255 Proceedings for
the United States District Courts.
The Residual Clause of the Armed Career Criminal
44 of Title 18 of the United States Code sets forth the laws
as to the manufacture, import, sale, and possession of
firearms. Section 922(g) prohibits any person who has been
convicted of a felony, is a fugitive from justice, is an
unlawful user of or addicted to any controlled substance, has
been adjudicated as having mental defects or has been
committed to a mental institution, is an illegal alien, has
been dishonorably discharged from the armed forces, has
renounced United States citizenship, is subject to a
restraining order, or has been convicted of a crime of
domestic violence from shipping, transporting, possessing, or
receiving any firearm or ammunition. 18 U.S.C. §
maximum custodial penalty for a violation of § 922(g) is
ten years. 18 U.S.C. § 924(a)(2). An enhanced mandatory
minimum penalty of 15 years custody applies if a prohibited
person "has three previous convictions by any court
referred to in section 922(g)(1) of this title 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) (emphasis supplied). That mandatory minimum penalty
was enacted as part of The Armed Career Criminal Act of 1984
("ACCA"), as amended.
term "violent felony" is defined as
any crime punishable by imprisonment for a term exceeding one
year, or any act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device that
would be punishable by imprisonment for such term if
committed by an adult, that-
(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 use of
explosives, or otherwise involves conduct that presents a
serious potential risk of physical injury to another.
18 U.S.C.A. § 924(e)(2)(B) (emphasis supplied).
924(e)(2)(B)(i) is known as the elements clause. Section
924(e)(2)(B)(ii) is known as the enumerated offenses clause.
The phrase "or otherwise involves conduct that presents
a serious potential risk of physical injury to another"
is known as the residual clause. Johnson v. United
States, __U.S. at__, 135 S.Ct. at 2556. The United States
Supreme Court held in Johnson that the residual
clause of the ACCA is unconstitutionally vague. Johnson
v. United States, __U.S. at__, 135 S.Ct. at 2557-60. The
Johnson "decision does not call into question
application of the Act to the four ...