Tompkins v. Feather, No. 3:2014cv00465 - Document 19 (D. Or. 2014)

Court Description: OPINION AND ORDER. Petitioner's request for the appointment of counsel in the conclusion of his Reply brief 18 is denied. For the reasons identified above, the Petition for Writ of Habeas Corpus 2 is DENIED. The court declines to is sue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of the denial of a constitutional right pursuant to 28 U.S.C.§ 2253 (c) (2). IT IS SO ORDERED. Signed on 10/20/2014 by Judge Marco A. Hernandez. (gw)

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Tompkins v. Feather Doc. 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON DAN C. TOMPKINS, Case No. 3:14-cv-00465-HZ Petitioner, v. MARION FEATHER, OPINION AND ORDER Respondent. Dan C. Tompkins, 70424-065 FCI Sheridan P.O. Box 5000 Sheridan, OR 97378 Petitioner, Pro Se S. Amanda Marshall United States Attorney Douglas W. Fong, Assistant United States Attorney 1000 SW Third Avenue, Suite 600 Portland, OR 97204-2902 Attorneys for Respondent 1 - OPINION AND ORDER Dockets.Justia.com HERNANDEZ, District Judge. Petitioner brings U.S.C. § 2241 this habeas corpus case pursuant to 28 challenging the legality of his 2009 sentencing enhancement under the Armed Career Criminal Act ("ACCA"). For the reasons that follow, the Petition for Writ of Habeas Corpus (#2) is denied. BACKGROUND On November 2, 2007, the Government charged petitioner with The Indictment also being a felon in possession of a firearm. alleged that petitioner had at least three qualifying felonies under the ACCA such that he faced a mandatory minimum 15-year sentence. Following a two-day trial, a jury found petitioner guilty of being a felon in possession of a firearm. He proceeded to sentencing where the parties argued as to whether his criminal history included three prior violent felonies so as to qualify him for a sentencing enhancement under the ACCA. The trial judge determined that petitioner had five predicate offenses under the ACCA, including two second-degree burglary convictions from the State of Oklahoma that occurred in 1984. As a result, the court sentenced petitioner to 15 years in prison. Petitioner took a direct appeal where he claimed that he did not have enough qualifying convictions to justify his 15-year ACCA sentence, but the Ninth 2 - OPINION AND ORDER Circuit disagreed and specifically concluded that the two second-degree burglary convictions from Oklahoma constituted generic burglaries sufficient to support the 15-year ACCA sentence. 1 67 ＨＹ ｾ＠ United States v. Tompkins, 365 Fed.Appx. Cir.), cert. denied, 130 S.Ct. 3435 (2010). Petitioner next filed a 28 U.S.C. § 2255 motion seeking to vacate his sentence on the basis that his criminal history did not justify his 15-year sentence under the ACCA. denied the § The District Court 2255 motion on the basis that the Ninth Circuit had affirmed its finding that he was an armed career criminal, and the Ninth Circuit declined to issue a certificate of appealability. On March 20, 2 014, petitioner filed this 28 U.S. C. § 2241 habeas corpus action asserting that sentence is unlawful because his 1984 burglary convictions from Oklahoma do predicate offenses under the ACCA. not constitute He claims that pursuant to the Supreme Court's recent decision in Descamps v. United States, 133 S.Ct. 2276 (2013), the trial judge overreached his authority by taking extra-statutory documents into consideration and applying the modified categorical approach to the Oklahoma burglary statute which is overbroad, and not a divisible statute, and therefore not subject to the modified categorical approach. Respondent argues this case only on its merits, waiving any procedural argument as to Petitioner did not dispute that his 2003 conviction for Delivery of a Controlled Substance constituted a predicate offense for purposes of the ACCA. 3 - OPINION AND ORDER whether petitioner's § 2241 § Petition constitutes a successive 2255 motion without Circuit permission. DISCUSSION The ACCA provides for a 15 - year mandatory minimum sentence for certain defendants who have three or more prior convictions for a violent felony such as burglary, arson, or extortion. § 924 (e) . In order to determine whether a prior 18 U.S.C. conviction constitutes a qualifying offense for the sentencing enhancement, a trial court can use the "categorical approach" to elements forming the of the statute the conviction with the elements of the offense as commonly understood." basis of 'generic' "compare the defendant's crime--i.e., Descamps, 133. S. Ct. at 2281. the In this way, under the categorical approach, courts are restricted to reviewing only the elements of the crime without looking to any documents from the defendant's case. Where a defendant has been convicted of a criminal statute that sets forth alternative pathways to culpability where not all of those pathways match the generic version of the crime, the statute is termed "divisible" and courts may use something called the "modified categorical approach" to determine if the particulars of the defendant's crime purposes of the ACCA. Id. constitute a predicate In such an instance, offense for "the modified categorical approach permits sentencing courts to consult a limited class of documents, such as indictments and jury instructions, to 4 - OPINION AND ORDER determine which alternative formed the basis of the defendant's prior conviction." Id. A court is not, however, permitted to review such additional documentation when a defendant is convicted under an indivisible statute that "criminalizes a broader swath of conduct than the relevant generic offense." Id. The issue this case presents is whether the District Court properly applied the "modified categorical approach" to petitioner's second-degree burglary convictions from Oklahoma so as to enhance his sentence. this very question, categorical The Ninth Circuit previously ruled on determining approach that "[u]nder Tompkins's the convictions modified qualify as violent felonies. The Information, a charging document, alleged each generic element 'unlawfully' of entered with burglary by 'burglarious stating intent' that Tompkins into a 'certain building' located at a specific address and owned by a particular business." that Tompkins, 365 Fed.Appx. at 69. Petitioner's assertion the Ninth Circuit misapplied existing precedent does not entitle him to relief in this court. Petitioner also argues that because he pleaded guilty and waived his right to a jury trial as to the second-degree burglary convictions, dates the the Supreme Court's Descamps decision Ninth Circuit's analysis of the (which post- statute at issue) precludes application of the modified categorical approach to those prior convictions. But Descamps only precludes use of the modified 5 - OPINION AND ORDER categorical approach in the context of indivisible statutes that are either overbroad or missing an element of the generic offense. Descamps, 133 S.Ct. at 2292. By contrast, the Oklahoma second- degree burglary statute is plainly divisible: Every person who breaks and enters any building or any part of any building, room, booth, tent, railroad car, automobile, truck, trailer, vessel, or other structure or erection, in which property is kept, or breaks into or forcibly opens, any coin operated or vending machine or device with intent to steal any property therein or to commit any felony, is guilty of burglary in the second degree. 21 Okl. St. § 1435. Where the Oklahoma statute was divisible, use of the modified categorical approach was proper. As the State narrowly tailored its Information such that the charged conduct mirrored the generic definition of burglary, petitioner did not plead guilty to an offense that was different than that contemplated by the generic definition of burglary. See Government Sentencing Exhibit 2-1 (Oklahoma Information charging petitioner with limited portions of the second-degree burglary statute) . Accordingly, relief on the Petition is denied. CONCLUSION Petitioner's request for the appointment of counsel in the conclusion of his Reply brief (#18) is denied. For the reasons identified above, the Petition for Writ of Habeas Corpus (#2) DENIED. is The court declines to issue a Certificate of Appealability on the basis that petitioner has not made a substantial showing of 6 - OPINION AND ORDER the § denial of a constitutional right pursuant 2253 (c) (2). IT IS SO ORDERED. DATED this 1JJ day of October, 2014. 7 - OPINION AND ORDER to 28 U.S.C.

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