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Branch v. United States

United States District Court, W.D. Wisconsin

August 22, 2016

LAQUEITON D. BRANCH, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION AND ORDER

          BARBARA B. CRABB District Judge.

         Petitioner 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.

         RECORD FACTS

         In 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.

         In 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.”)

         Petitioner 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).

         OPINION

         Ordinarily, 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.

         The 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 element.

         Wisconsin 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.

         The 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 ...


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