United States District Court, W.D. Wisconsin
LAQUEITON D. BRANCH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
OPINION AND ORDER
BARBARA B. CRABB District Judge.
Laqueiton D. Branch has brought an action for post conviction
relief under 28 U.S.C. § 2255, challenging his
conviction as an armed career criminal. He contends that his
sentence was enhanced erroneously in reliance on three prior
Wisconsin convictions for robbery with the use of force.
After reviewing the relevant case law, I conclude that
petitioner is correct. His prior convictions cannot be
classified as violent felonies under § 942(e)(2)(B)(i);
his challenge is timely; and he is entitled to be resentenced
without the armed career criminal enhancement.
2008, petitioner was charged with possession of a firearm, in
violation of 18 U.S.C. § 922(g). He pleaded guilty and
was sentenced as an armed career criminal under 18 U.S.C.
§ 924(e) because he had at least three prior robbery
convictions, all in violation of Wis.Stat. §
943.32(1)(a), each of which appeared to be a violent felony
under subsection (2)(B)(i) of § 924(e). Petitioner was
sentenced to a term of 180 months, the mandatory minimum
sentence for an armed career criminal under § 924(e). He
filed an appeal from his sentence but did not pursue it.
2010, the Supreme Court decided Johnson v. United
States, 559 U.S. 133 (2010), holding that a prior
conviction does not qualify as a violent felony under
subsection (i) of § 924(3)(2)(B) unless it is clear that
the defendant’s prior convictions were for crimes
having “as an element the use, attempted use, or
threatened use of physical force against the person.”
Id. at 138. (To distinguish this Johnson decision
from the Court’s 2015 decision in Samuel Johnson v.
United States, 133 S.Ct. 2551, I will refer to it as
“Curtis Johnson v. United States.”)
did not file a motion for post conviction relief within a
year of the decision in Curtis Johnson or at any
other time until he filed his present motion in 2016.
However, in 2013, petitioner filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2241 in the Central
District for Illinois, arguing that he was actually innocent
of the Armed Career Criminal Act enhancement. Branch v.
Rios, case no. 13-cv-1007 (C.D. Ill. 2013). The motion
was denied, as was his motion for reconsideration, which was
filed under Fed.R.Civ.P. 59(e).
the first question to be answered in addressing a motion for
post conviction relief is a procedural one: is the motion
timely? In this case, however, the government has waived any
untimeliness objection to petitioner’s motion by not
raising the issue so I will proceed to consider the motion.
In addition, it has not argued that petitioner’s §
2241 filing in the Central District of Illinois bars his
filing in this case.
substantive question is whether petitioner’s prior
convictions for robbery in violation of Wis.Stat. §
943.32 qualify as violent felonies under §
942(e)(2)(B)(i) of the Armed Career Criminal Act, that is,
whether they have as an “element the use, attempted use
or threatened use of physical force against the person of
another.” At the outset, it seems obvious that the
answer would be yes, but petitioner has made a compelling
argument that the Wisconsin Supreme Court’s
construction of Wis.Stat. § 943.32 is broad enough to
encompass robberies that do not necessarily have this
defines simple robbery as follows:
Whoever, with intent to steal, takes property from the person
or presence of the owner by either of the following means is
guilty of a Class E felony:
(a) By using force against the person of the owner with
intent thereby to overcome his or her physical resistance or
physical power of resistance to the taking or carrying away
of the property; or
(b) By threatening the imminent use of force against the
person of the owner or another who is present with intent
thereby to compel the owner to acquiesce in the taking or
carrying away of the property.
question raised in petitioner’s motion is whether
§ 943.42 requires the use of “physical
force” as that term is defined in § 942.43. State
courts and legislatures determine the elements of state laws.
Curtis Johnson, 599 U.S. at 138 (United States
Supreme Court is “bound by the Florida Supreme
Court’s interpretation of state law, including its
determination of the elements” of the state statute).
However, whether a particular action constitutes
“physical force” under the Armed Career Criminal
Act is a question determined under federal law. Thus, in
Curtis Johnson, 599 U.S. at 138, the Court deferred
to the Florida court’s interpretation that the element
of “actually and intentionally touching” under
state law was “satisfied by any intentional
physical contact, ‘no matter how slight, ’
State v. Hearns, 961 So.2d 211, 217 (Fla.
2007).” Id. However, the Court determined that
in the “context of a statutory definition of
‘violent felony, ’ the phrase
‘physical force’ means ‘violent
force- that is, force capable of causing physical pain or
injury to another person.” Id. at 140. Curtis
Johnson’s prior conviction for simple battery under
Florida law would ordinarily have been a first-degree
misdemeanor unless, as he did, the defendant has a prior
conviction for battery). Because nothing in the record
permitted the sentencing court to determine the specific