ORDER GRANTING EMERGENCY MOTION TO MODIFY SENTENCE PURSUANT TO 28 U.S.C. § 2255

Doc. # 236

ANTHONY W. ISHII, Senior District Judge.

On September 18, 1995, petitioner Anthony Greenhill ("Petitioner") was sentenced to a term of 293 months custody following conviction by jury trial of a single count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g). It is not disputed that the sentence imposed was enhanced pursuant to the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1). It is also not disputed that the enhancement of Petitioner's sentence under the ACCA was based on prior convictions that were then determined to qualify as violent felonies under the so-called "residual clause" of 18 U.S.C. § 924(e)(2)(B)(ii). Following his conviction and through 2009, Petitioner filed a direct appeal and filed a number of collateral attacks on his conviction and sentence. Among these was a motion to vacate or set aside his conviction pursuant to 28 U.S.C. § 2255. Petitioner's appeal and subsequent collateral attacks were denied.

On June 22, 2016, Petitioner filed an "Unopposed Emergency Motion for A Successive Habeas Petition" (hereinafter, Petitioner's "Motion") with this court and with the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 2255(h). On July 11, 2015, the appellate court issued an order finding that Petitioner had made a prima facie showing of entitlement to relief based on the Supreme Court's recent holding in Johnson v. United States, 135 S.Ct. 2551 (2015) ("Johnson II") . The appellate court granted Petitioner's motion for second or successive habeas review and transferred the motion to this court for decision on the merits within seven days. This court referred the motion to the Government on July 12, 2016, and ordered expedited review to determine if Government would oppose Petitioner's motion for relief. On July 13, 2016, the Government filed a statement of non-opposition. Doc. # 239.

In their statement of non-opposition, Government noted that the presentence report prepared in advance of Petitioner's sentencing noted four prior convictions that at the time were deemed qualifying convictions for purposes of the ACCA; three convictions for felony second degree burglary and one conviction for felony assault on a prisoner. Government's statement of non-opposition stipulates that, under Johnson II, the three convictions for felony second degree burglary under Californian law "no longer count as violent felonies under the [ACCA]." Doc. # 239 at 1:25 (citing Descamps v. United States, 133 S.Ct. 2276 (2013)). As noted by Government, imposition of an enhanced sentence under the ACCA requires three prior convictions for qualifying violent felonies; therefore, the enhancement applied to Petitioner's sentence must now be held invalid.

Petitioner correctly points out that he has served a period of confinement equal to or greater than the maximum term of ten years authorized for unenhanced conviction of violation of 18 U.S.C. § 922(g) and must be released forthwith upon grant of his Motion.

THEREFORE, for good cause appearing, it is hereby ORDERED that Plaintiff's unopposed Emergency Motion is hereby GRANTED. Petitioner shall be released from custody forthwith.

IT IS FURTHER ORDERED that all other terms and provisions of the original judgment remain in effect. The clerk shall prepare an amended judgment reflecting the above modification of sentence, and shall serve copies of the amended judgment on the United States Bureau of Prisons and the United States Probation Office.

Mr. Greenhill shall report to the United States Probation Office within seventy-two hours after his release.

The Clerk of the Court is respectfully directed to terminate this defendant and close the case.

IT IS SO ORDERED.