United States District Court, D. New Jersey
E. THOMPSON U.S. DISTRICT JUDGE
matter comes before the Court on Petitioner Thomas
Weatherly's (hereinafter, "Petitioner") motion
to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255. (Docket Entry ("D.E.") 1).
Petitioner filed his original pro se § 2255 motion on
May 26, 2016. (Id.). On Petitioner's behalf, the
federal public defender filed a § 2255 motion contending
that Petitioner's sentence violates due process.
Specifically, the § 2255 motion argues that, following
the decision in Samuel Johnson v. United States, 13
5 S.Ct. 2551 (2015) ("Samuel Johnson"),
Petitioner no longer qualifies as an armed career criminal.
(D.E. 4 at 1-2). Respondent United States of America
("Respondent") filed an answer (D.E. 10) and
corrected answer (D.E. 14), to which Petitioner filed a reply
on January 1, 2017. (D.E. 15). Respondent also submitted a
letter regarding supplemental authority from the Third
Circuit after Petitioner's § 2255 motion was fully
briefed. (D.E. 16).
on the parties' written submissions and the Court's
review of the record, and for the reasons stated herein, the
Court denies Petitioner's motion to vacate his sentence.
No. certificate of appealability will issue.
Federal Offense And Sentencing History
31, 2005, Trenton police found Petitioner inebriated in an
alleyway with a loaded semi-automatic pistol tucked in his
pants. (United States v. Weatherly, No. 06-00258,
Pre-Sentence Report, at ¶¶ 10-13; United States
v. Weatherly, No. 06-0258, D.E. 43; United States v,
Weatherly, 525 F.3d 265, 267 (3d Cir. 2008)). Given his
criminal history, the United States charged Petitioner with
being a felon in possession of a firearm in violation of 18
U.S.C. § 922(g)(1). (No. 06-00258, D.E. 1).
Petitioner's first trial (No. 06-00258; D.E. 21-25, 28-35
and 43-46) ended in a mistrial when the jury could not reach
a verdict. (No. 06-00258, D.E. 26). The retrial ended with a
guilty verdict. (No. 06-00258; D.E. 43).
December 15, 2006 sentencing, Petitioner argued that
enhancing his sentence on the basis of judicially-found facts
regarding his prior convictions would violate the Sixth
Amendment. (D.E. 14 at 22-23).
Court rejected Petitioner's request for a variance and
sentenced him to 200 months' imprisonment
(Petitioner's "Sentence"), which was in the
middle of the United States Sentencing Guidelines advisory
range of 188 to 235 months. (No. 06-00258, D.E. 48; D.E. 14
at 23-24). This Court stated:
Mr. Weatherly's pre-sentence report chronicles his
history, his offense conduct for this particular offense
which counsel have noted necessitated two trials here ... ...
[I]t's the criminal history of this defendant that puts
the case in a context whereby a long jail term could be
anticipated. And it is true going through the defendant's
history from a relatively youthful time in his life there has
been one arrest after another, one conviction after another,
weapons charges, burglary charges, possession of weapons,
ultimately a murder, drug convictions.
14 at 30).
his conviction and sentence on direct appeal, Petitioner
asserted that the Armed Career Criminal Act
("ACCA"), 18 U.S.C. § 924(e), was
unconstitutional because the jury, not the United States
District Court, should determine whether any of his prior
convictions qualify as "violent felonies" or
"serious drug offenses" under 18 U.S.C. §
924(g)(1). United States v. Weatherly, 525 F.3d 265,
274 (3d Cir. 2008).
Third Circuit affirmed his conviction and sentence in a
precedential opinion. Neatherly, 525 F.3d at 274. On
October 6, 2008, the Supreme Court denied Weatherly's
petition for a writ of certiorari. Weatherly v.
United States, 555 U.S. 866 (2008).
24, 2016, Petitioner filed his first motion under 28 U.S.C.
§ 2255. (D.E. 1). His appointed attorney - the same
counsel who represented him at trial and on direct appeal
-supplemented the § 2255 motion on June 16, 2016. (D.E.
4). The motion argues that Petitioner no longer qualifies as
an armed career criminal, following the Samuel
Johnson decision. (D.E. 4 at 1-2). Petitioner's
offense and sentencing history pertinent to his § 2255
Offenses: As a juvenile, Petitioner was arrested for
breaking and entering, immoral conduct, assault, and injury
to property. He was admitted to Youth Correction on March 31,
1966. (No. 06-00258, Pre-Sentence Report, at ¶ 31).
and Entering - 1975 and 1977 Guilty Pleas Under N.J. Stat.
Ann. § 2A:94-1: On August 19, 1974, Petitioner
broke into a New Jersey gas station. (Id. at ¶
50). On October 18, 1974, Petitioner broke into an apartment
in Bellmawr, New Jersey and stole property. (Id. at
¶ 52). On April 28, 1977 and November 17, 1975, he pled
guilty to these charges, respectively. (Id. at
¶¶ 51, 53). Petitioner acknowledges that his
breaking and entering convictions were pursuant to N.J. Stat.
Ann. § 2A:94-1, the predecessor statute to N.J. Stat.
Ann. § 2C:18-2. (D.E. 4 at 6-7).
With A Deadly Weapon -- October 1975 conviction under
California Penal Code § 245(a): Petitioner pled
guilty in the fall of 1975 to assault with a deadly weapon,
in violation of Cal. Penal Code § 245(a). (D.E. 14 at
35-36 and 56-64). He was sentenced to three years'
probation, conditioned upon spending one year in county jail,
with 133 days' jail credit. (D.E. 14 at 65-79; No.
06-00258, Pre-Sentence Report, at ¶ 53).
Assault and Battery -- April 1977 conviction under
then-N.J. Stat. Ann. § 2A-.90-1 (two counts):
Petitioner pled guilty in April of 1977 to two counts of
atrocious assault and battery, in violation of former N.J.
Stat. Ann. § 2A:90-1 (West 1969). (D.E. 14 at 82-87). He
received four months' imprisonment for these convictions,
to run concurrently with another sentence. (Id. at
-- August 1977 conviction under former N.J. Stat.
Ann. §§ 2A:113-1 and 2A:151-5: Almost two months
after being released from prison on August 18, 1977,
Petitioner committed murder by multiple stab wounds to the
victim. (D.E. 14 at 88-94; No. 06-0258, Pre-Sentence Report
at 11-12). Petitioner pled guilty to murder in violation of
former N.J. Stat. § 2A:113-1 (count one) and armed
murder in violation of former N.J. Stat. Ann. § 2A:151-5
(count two). He was sentenced on December 22, 1977 to 29-30
years' imprisonment. (D.E. 14 at 93; No. 06-00258,
Pre-Sentence Report, at ¶¶ 55-56.).
STANDARD OP REVIEW
2255 provides, in relevant part:
A prisoner in custody under sentence of a court established
by Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States ... may move the
court which imposed the sentence to vacate, set aside or
correct the sentence.
28 U.S.C. § 2255(a). A district court must hold an
evidentiary hearing on a § 2255 motion unless the
"motion and the files and records of the case
conclusively show" that the movant is not entitled to
relief. 28 U.S.C. § 2255(b); see also United
States v. Booth, 432 F.3d 542, 545-46 (3d Cir.
reasons explained below, Petitioner is not entitled to habeas
relief or an evidentiary hearing.
to Samuel Johnson, the ACCA provided:
[T]he term "violent felony" means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
adult, that -- has as an element the use,
attempted use, or threatened use of physical force against
the person of another; or is burglary, arson, or extortion,
involves use of explosives, or otherwise involves conduct
that presents a serious potential risk of physical injury to
18 U.S.C. § 924 (e) (2) (B) (emphasis added to
pre-Samuel Johnson "Residual ...