Filed: Aug. 09, 2016
Latest Update: Aug. 09, 2016
Summary: REPORT AND RECOMMENDATIONS MICHAEL R. MERZ , Magistrate Judge . This case is before the Court on transfer from the United States Court of Appeals for the Sixth Circuit (Order, ECF No. 128). In the Transfer Order, the circuit court granted McCauley permission to file a second or successive 2255 motion and found that he had made "a prima facie showing that he is entitled to relief." Id. at PageID 785. Although McCauley filed pro se in the Sixth Circuit, he is now represented by counsel (E
Summary: REPORT AND RECOMMENDATIONS MICHAEL R. MERZ , Magistrate Judge . This case is before the Court on transfer from the United States Court of Appeals for the Sixth Circuit (Order, ECF No. 128). In the Transfer Order, the circuit court granted McCauley permission to file a second or successive 2255 motion and found that he had made "a prima facie showing that he is entitled to relief." Id. at PageID 785. Although McCauley filed pro se in the Sixth Circuit, he is now represented by counsel (EC..
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REPORT AND RECOMMENDATIONS
MICHAEL R. MERZ, Magistrate Judge.
This case is before the Court on transfer from the United States Court of Appeals for the Sixth Circuit (Order, ECF No. 128). In the Transfer Order, the circuit court granted McCauley permission to file a second or successive § 2255 motion and found that he had made "a prima facie showing that he is entitled to relief." Id. at PageID 785. Although McCauley filed pro se in the Sixth Circuit, he is now represented by counsel (ECF No. 132)
The Sixth Circuit has now transferred to this Court McCauley's § 2255 Motion (ECF No. 130. McCauley pleads one ground for relief:
Ground One: The movant is not a career criminal in light of the Supreme Court's decision in Johnson v. United States.
Supporting Facts: The Supreme Court's decision in Johnson v. United States, U.S. No. 13-7120 (June 26, 2015) announced a substantive change to the Armed Career Criminal Act, 18 U.S.C. § 924(e). The movant is no longer a career criminal in light of the changes announced in the decision; therefore the statutory maximum sentence for the offense of conviction, 18 U.S.C. § 922(g)(1), is 10 years. The movant's sentence exceeds the statutory maximum.
(Motion, ECF No. 130, PageID 797).
In Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551, 192 L. Ed. 2d 569 (2015), the Supreme Court found the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), is unconstitutionally vague. Johnson announced a new substantive rule that has retroactive effect in cases on collateral review. Welch v. United States, 576 U.S. ___, 136 S.Ct. 1257 (2016); In re: Windy Watkins, 810 F.3d 375 (6th Cir. 2015).
On initial review under Rule 4 of the Rules Governing § 2255 Proceedings, the Magistrate Judge concluded McCauley was not entitled to relief because he had three prior convictions for violent felonies which did not require reference to the "residual" clause of the ACCA to qualify as predicate offenses (Report, ECF No. 133). Defendant objected and the Magistrate Judge withdrew the Report and ordered the Government to answer (ECF No. 116).
The United States has now conceded that McCauley is entitled to relief. The United States Attorney explains that McCauley's aggravated robbery convictions required merely the possession of a deadly weapon and not its use. (Answer, ECF No. 138, PageID 894, note 1, citing United States v. Nagy, 144 F.Supp.3d 928 (N.D. Ohio 2015)(Gwin, D.J.). As noted in the Objections, the United States had conceded during litigation over McCauley's request for permission to file a second or successive § 2255 motion that McCauley had only one qualifying predicate conviction (ECF No. 133, PageID 880).
Conclusion
Accordingly, it is respectfully recommended that McCauley's conviction under the ACCA be VACATED and this case be set for re-sentencing.
