Opinion
Case No. CR-06-161-R Case No. CIV-16-418-R
04-05-2017
UNITED STATES OF AMERICA, Plaintiff, v. DAMON KEITH FISHER, Defendant.
ORDER
Before the Court is Defendant-Petitioner's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. [Doc. 1]. The Government responded. [Doc. 84]. Defendant Petitioner replied [Doc. 85] and also provided supplemental briefing [Doc. 87]. Because his Motion is untimely, the Court DENIES relief.
Discussion
In 2007, a jury found Defendant-Petitioner Damon Fisher guilty on two counts: (1) illegally possessing a firearm as a felon in violation of 18 U.S.C. § 922(g), and (2) knowingly possessing a stolen firearm in violation of § 922(j). [Docs. 61, 62]. On Count One, this Court sentenced Mr. Fisher to fifteen years' imprisonment as an armed career criminal. Possessing a firearm as a felon usually carries a maximum prison term of ten years. 18 U.S.C. § 924(a)(2). Under the Armed Career Criminal Act (ACCA), however, a person convicted of possessing a firearm as a felon faces a minimum of fifteen years' imprisonment if that person has three previous convictions for a "serious drug offense" or a "violent felony." 18 U.S.C. § 924(e). Mr. Fisher had at least three prior convictions that made him eligible for this sentence enhancement: three Oklahoma convictions for second-degree burglary; one Arizona conviction for first-degree burglary; and one Arizona conviction for drug distribution. [PSR, ¶ 21, Doc. 66]. On Count Two, this Court sentenced Mr. Fisher to ten years' imprisonment, to be served concurrently to Count One [Doc. 66]. Mr. Fisher appealed this Court's instructions to the jury on his insanity defense and the lack of an instruction regarding the consequences of a not-guilty-by-reason-of-insanity verdict. On appeal, the Tenth Circuit rejected these arguments and affirmed his conviction. United States v. Fisher, 278 F. Appx. 810, 811 (10th Cir. May 20, 2008).
Mr. Fisher now brings this § 2255 motion arguing that the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), entitles him to relief. Before Johnson, the ACCA defined "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that meets one of three requirements: (1) "has as an element the use, attempted use, or threatened use of physical force against the person of another"—referred to as the elements clause; (2) is "burglary, arson, or extortion, or involves the use of explosives"—referred to as the enumerated-offense clause; or (3) "otherwise involves conduct that presents a serious potential risk of physical injury to another"—referred to as the residual clause. § 924(e)(2)(B)(i)-(ii). Johnson invalidated only the residual clause, with the Supreme Court deeming it unconstitutionally vague since it "both denie[d] fair notice to defendants and invite[d] arbitrary enforcement by judges." 135 S.Ct. at 2557. Now, in the wake of Johnson, a prior conviction qualifies as a violent felony under the ACCA only if it falls within the enumerated-felony clause or the elements clause. Further, Johnson is retroactively applicable to cases on collateral review, meaning a defendant who had a prior conviction that qualified under the residual clause may collaterally attack his sentence enhancement under the ACCA, assuming his challenge is timely. Welch v. United States, 136 S.Ct. 1257 (2016).
Mr. Fisher's challenge runs up against this time bar. For a motion to be timely under 28 U.S.C. § 2255, it must be filed either within one year of when petitioner's conviction became final, § 2255(f)(1), or within one year of an applicable, retroactive new rule of constitutional law under § 2255(f)(3).
First, Mr. Fisher's motion is not timely under § 2255(f)(3) because Johnson is not applicable to his sentence: Johnson affected the constitutional validity of only the residual clause. Though Mr. Fisher argues he was sentenced pursuant to this clause, his argument lacks merit: his Oklahoma convictions for second-degree burglary fell within the enumerated-offense clause under 18 U.S.C. § 924(e)(2)(B)—not the elements clause. See, e.g., United States v. Green, 55 F.3d 1513, 1516 (10th Cir. 1995) (recognizing that Oklahoma's crime for second-degree burglary qualified as an ACCA-predicate offense under the enumerated-offense clause). Because Johnson does not affect his sentence under the enumerated-offense clause, it does not qualify as a new, applicable rule which would trigger a new one-year filing period under 28 U.S.C. § 2255(f)(3). See, e.g., Stanley v. United States, ___ F.3d ___, 2016 WL 3514185, at *2 (7th Cir. June 27, 2016) ("Johnson does not have anything to do with the [enumerated-offense] clause of either the Guidelines or the Armed Career Criminal Act, and § 2255(f)(3) does not afford prisoners a new one-year period to seek collateral relief on a theory that the [enumerated-offense] clause does not apply to a particular conviction.").
In other words, because Johnson does not apply to Mr. Fisher's sentence, § 2255(f)(3) is not an avenue for relief. If he believed that his convictions for second-degree burglary did not fall within 924(e)'s enumerated-felony clause, then, under § 2255(f)(1), he had one year from when his conviction became final to seek relief. That would have been in August 2009—one year from the deadline for filing a petition of certiorari with the Supreme Court. See Fisher, 278 F.Appx. at 811; United States v. Willis, 202 F.3d 1279, 1280 (10th Cir. 2000) (recognizing that "where a defendant does not file a petition for writ of certiorari with the United States Supreme Court after a direct appeal, the judgment of conviction is final when the time for filing a certiorari petition expires"). Because he filed in April 2016—nearly seven years after his conviction became final—his motion is not timely under § 2255(f)(1).
Further, the Court denies Mr. Fisher a Certificate of Appealability (COA) under Rule 11(a) of the Rules Governing Section 2255 Cases in the United States District Courts. Where a habeas petition is denied on procedural grounds, Petitioner is entitled to a COA only if he demonstrates that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constituinoal right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Stack v. Daniel, 529 U.S. 473, 282, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Because Mr. Fisher has not made this showing, he is not entitled to a COA. He may seek a certificate from the court of appeals under Federal Rule of Appellate Procedure 22 if he wishes to appeal the Court's ruling on his motion.
For these reasons, Mr. Fisher's motion under 28 U.S.C. § 2255 is DENIED.
IT IS SO ORDERED this 5th day of April 2017.
/s/ _________
DAVID L. RUSSELL
UNITED STATES DISTRICT JUDGE