United States District Court, D. Montana, Great Falls Division
ORDER GRANTING § 2255 MOTION AND SETTING
Morris, United States District Court Judge
matter comes before the Court on Defendant/Movant
Huttinger's motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255. He seeks relief under
Johnson v. United States, __ U.S. __, 135 S.Ct. 2551
Armed Career Criminal Act, 18 U.S.C. § 924(e)(1),
mandates a fifteen-year minimum sentence and authorizes a
maximum sentence of life in prison if a defendant convicted
of being a felon in possession of a firearm has three
previous convictions for a serious drug offense or a violent
felony. If the defendant does not have three qualifying
convictions, the ACCA does not apply, and the defendant faces
a maximum sentence of ten years in prison. See 18
U.S.C. § 924(a)(2).
jury indicted Huttinger on April 7, 2008, on one count of
being a felon in possession of a firearm in violation of 18
U.S.C. §§ 922(g)(1) and 924(e) (Count 1); and one
count of distribution of marijuana in violation of 21 U.S.C.
§ 841(a)(1) (Count 2). As to Count 1, the caption of the
indictment stated the penalty was 15 years to life in prison.
See Indictment (Doc. 1) at 1-2.
parties reached a plea agreement. As relevant here, Huttinger
agreed to plead guilty to Count 1, being a felon in
possession of a firearm, and the United States agreed to
dismiss Count 2 and to seek a three-level reduction in
Huttinger's offense level for his acceptance of
responsibility. See Plea Agreement (Doc. 24) at 2
¶ 5, 7-8 ¶¶ 12-13. Huttinger entered a guilty
plea to Count 1 on May 16, 2013. See Minutes (Doc.
presentence report was prepared. Huttinger's base offense
level was found to be 33. He received a three-level reduction
for acceptance of responsibility and timely notification of
plea for a total offense level of 30. His criminal history
category was VI. His advisory guideline range was 180 to 210
months. See Sentencing Tr. (Doc. 43) at 5:9-22. The
Court sentenced Huttinger to serve 210 months in prison, to
be followed by a five-year term of supervised release.
See Minutes (Doc. 36); Judgment (Doc. 37) at 2-3.
Ninth Circuit affirmed the sentence on October 28, 2009. Mem.
(Doc. 48) at 2, United States v. Huttinger, No.
09-30006 (9th Cir. Oct. 28, 2009) (unpublished mem. disp.).
The United States Supreme Court denied Huttinger's
petition for writ of certiorari on January 11, 2010.
Clerk's Letter (Doc. 51) at 1.
filed a motion on February 22, 2010, to vacate, set aside, or
correct the sentence under 28 U.S.C. § 2255. The Court
denied the motion and a certificate of appealability on May
25, 2010. (Doc. 57). The Ninth Circuit denied a certificate
of appealability on December 20, 2010. (Doc. 60). On June 26,
2015, the United States Supreme Court in Johnson v.
United States, __ U.S. __, 135 S.Ct. 2551, 2557 (2015),
held that the residual clause in the Armed Career Criminal
Act was so vague that “[i]ncreasing a defendant's
sentence under the clause denies due process of law.”
Huttinger filed a second motion under 28 U.S.C. § 2255
in this Court on September 15, 2015. The Court denied the
motion for lack of jurisdiction on September 16, 2015. The
Court also denied a certificate of appealability.
See Order (Doc. 68) at 2-3. Huttinger applied to the
Ninth Circuit on May 24, 2016, for leave to file a second or
successive motion under 28 U.S.C. § 2255. The Ninth
Circuit granted his application on November 8, 2016.
See Order (Doc. 69) at 1-2, Huttinger v. United
States, No. 16-71652 (9th Cir. Nov. 8, 2016). Huttinger
filed the instant § 2255 motion in this Court as of May
24, 2016. See Orona v. United States, 826
F.3d 1196, 1199-1200 (9th Cir. 2016) (per curiam).
the Ninth Circuit granted Huttinger leave to proceed with a
second or successive § 2255 motion, “[a] district
court shall dismiss any claim presented in a second or
successive application that the court of appeals has
authorized to be filed unless the applicant shows that the
claim satisfies the requirements of this section.” 28
U.S.C. § 2244(b)(4). Johnson presents a new
rule of constitutional law made retroactive, in Welch v.
United States, __ U.S. __, 136 S.Ct. 1257, 1265 (2016),
to cases on collateral review. The rule previously remained
unavailable, as no legal authority had held the ACCA's
residual clause unconstitutionally vague until
Johnson. This development meets the requirement of
28 U.S.C. § 2255(h)(2).
Motion to Dismiss
United States seeks to dismiss Huttinger's motion as
untimely and for lack of jurisdiction. See Answer
(Doc. 36) at 1-3, 12. An untimely claim does not deprive the
Court of jurisdiction. See, e.g., McQuiggin v.
Perkins, __ U.S. __, 133 S.Ct. 1924, 1928 (2013).
Further, a Johnson claim, regardless of its merits,
proves timely if filed within one year of Johnson.
See 28 U.S.C. § 2255(f)(3); Dodd v. United
States, 545 U.S. 353, 357 (2005). Huttinger timely filed
his motion. The motion to dismiss is denied.
had two prior convictions for a serious drug offense.
See Presentence Report ¶¶ 37-38.
Consequently, the question arises whether any of
Huttinger's other convictions constituted a
“violent felony.” The Court must address
Huttinger's conviction for felony assault. The parties
agree that this conviction was incurred under Mont. Code Ann.
§ 45-5-202(2)(b) (1995). See Information at 1
(Doc. 70-1 at 1), State v. Huttinger, No. CDC-95-583
(Mont. 8th Jud. Dist. Ct. Dec. 29, 1995); Plea Agreement
(Doc. 70-1 at 5-6), Huttinger, No. CDC-95-583 (Mont.
8th Jud. Dist. Ct. May 9, 1995).
invalidated the ACCA's residual clause. After
Johnson, the ACCA, in effect, defines a
“violent felony” as a felony that:
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, [or] involves use of
18 U.S.C. § 924(e)(2)(B). Huttinger's sentence under
the ACCA remains proper if his Montana conviction either
meets the elements of the “force clause” in
subsection (i), or is equivalent to one or more of the
“enumerated offenses” in subsection (ii). The
parties agree that felony assault fails to meet the elements
of any of the offenses listed in subsection (ii). The force
clause remains the sole issue here.
Categorical Comparison of State Elements to Federal
apply the ACCA, federal sentencing courts must consider
convictions entered in more than 50 jurisdictions, containing
widely varying elements, to determine whether an individual
defendant's criminal history meets the ACCA's terms.
The Supreme Court has applied the “categorical
analysis” to decide the issue. The
“categorical” method focuses exclusively on the
elements of a predicate conviction, as defined by the
jurisdiction of conviction, and compares those element to the
elements of the ACCA, as defined by federal law. See
Taylor v. United States, 495 U.S. 575, 590-92 (1990).
The facts of Huttinger's conviction for felony assault
prove “quite irrelevant” under this analysis.
Moncrieffe v. Holder, __ U.S. __, 133 S.Ct. 1678,
1684 (2013) (internal quotation marks omitted).
comparing Huttinger's prior convictions with the ACCA
elements, the Court may consider only “what the state
conviction necessarily involved, ” as if every
conviction “‘rested upon nothing more than the
least of the acts' criminalized” by the state
statute. Id. (quoting Johnson I, 559 U.S.
at 137). The federal elements must be met in every realistic
instance of conviction under the state statute. For this
reason, case law applying the state statute to specific acts
or defining the issues a jury must decide can be useful in
determining whether the state statute meets the elements of
the federal ...