Anthony Potter v. United States
Opinion
The Armed Career Criminal Act imposes a 15-year mandatory minimum sentence on repeat offenders-those who have three or more previous convictions for a "violent felony." After the district court sentenced Anthony Potter as a repeat offender,
Johnson v. United States
, --- U.S. ----,
*787
In 2003, Potter pleaded guilty to a slew of drug and gun crimes, including possession of a firearm by a convicted felon.
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another [the elements clause]; or
(ii) is burglary, arson, or extortion, involves use of explosives [the enumerated-crimes clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [the residual clause].
Potter's presentence report identified three prior state convictions that qualified as violent felonies under the Act: a Georgia conviction for burglary, a Georgia conviction for obstruction of an officer, and a Tennessee conviction for aggravated assault. The report did not spell out whether the convictions counted as violent felonies under the elements clause, the enumerated-crimes clause, or the residual clause. Potter did not challenge this part of the report. The district court thus accepted the report's conclusion that Potter qualified as an armed career criminal and sentenced him to 225 months in prison.
Potter filed his first § 2255 motion in 2013, which the district court denied because it was not filed within the one-year statute of limitations. After the Supreme Court decided Johnson in 2015, this court granted Potter permission to file a second collateral attack on his sentence. His second § 2255 motion argued that his Georgia burglary conviction no longer qualified as a violent felony after Johnson . The district court rejected the motion, reasoning that the burglary conviction still qualified as a violent felony under the enumerated-crimes clause.
The Antiterrorism and Effective Death Penalty Act generally gives federal prisoners one shot to attack their sentences in federal court. The Act permits a second collateral attack only if it rests on new facts or "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
But there is a problem. Potter offers no evidence that the district court relied only on the residual clause in sentencing Potter and that in fact seems unlikely.
Johnson
does not reopen
all
sentences increased by the Armed Career Criminal Act, as it has nothing to do with enhancements under the elements clause or the enumerated-crimes clause.
See
As the proponent of a § 2255 motion, and a second motion at that, Potter
*788
has the burden to show he deserves relief.
Pough v. United States
,
On top of that, the judge who reviewed his § 2255 motion is the same judge who sentenced him. It is difficult to think of a better source of information about what happened the first time around.
See
Dimott v. United States
,
Switching gears, Potter claims that his Georgia burglary conviction does not meet the Act's definition of "burglary," relying on
Mathis v. United States
, --- U.S. ----,
Nor does
Johnson
open the door for prisoners to file successive collateral attacks any time the sentencing court
may
have relied on the residual clause. That approach turns collateral sentencing challenges on their head. Instead of requiring prisoners to prove that they are entitled to relief because they have been incarcerated illegally, Potter's approach would require the government to prove years later (more than a decade later in this case) that the prisoner's sentence is lawful. Other courts have rejected this approach.
Dimott
,
So do we. Not only would Potter's approach flip the normal burdens in cases seeking collateral relief, it also would create strange incentives. Imagine a prisoner with the same criminal record as Potter. Everything about the two cases is the same but one: The second prisoner objects to the presentence report at sentencing, as our case law encourages him to do,
see
United States v. Bostic
,
Taken together, the specification of "burglary" in the enumerated-crimes clause of the Act, the existing case law at the time of sentencing that treated this Georgia burglary conviction as an enumerated crime under the Act, the sentencing *789 judge's own views about the matter provided in this collateral action, and the absence of any contrary evidence supplied by Potter all confirm what common sense suggests: Fifteen years ago, Potter received (or at a minimum could have received) an enhanced sentence under the enumerated-crimes clause of the Act. On this record, we see no basis for upsetting that sentence today.
We affirm.
Reference
- Full Case Name
- Anthony T. POTTER, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
- Cited By
- 63 cases
- Status
- Published