The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
LARRY LEESON,
Petitioner,
v. CRIMINAL ACTION NO. 1:03CR43
CIVIL ACTION NO. 1:16CV139
(Judge Keeley)
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
In this Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody (“Motion”) filed by
the pro se petitioner, Larry Leeson (“Leeson”), the question
presented is whether, following the Supreme Court’s decision in
Johnson v. United States, 135 S. Ct. 2251 (2015), Leeson’s prior
conviction for burglary in violation of Texas Penal Code § 30.02
qualifies as a crime of violence under the Armed Career Criminal
Act (“ACCA”). Because it does not, the Court GRANTS in part and
DENIES in part Leeson’s Motion (Dkt. No. 1).
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Conviction and Sentence
On September 4, 2003, a grand jury in the Northern District of
West Virginia returned an indictment charging Leeson with one count
of being a felon in possession of a firearm, in violation of 18
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
U.S.C. §§ 922(g)(1) and 924(a)(2) (Dkt. No. 7).1 Despite Leeson’s
insanity defense, a jury convicted him of the firearm charge on
September 22, 2004 (Dkt. No. 65). At Leeson’s sentencing, the Court
determined that he was subject to an enhanced sentence under the
ACCA based on three prior convictions from Texas, which included
attempted capital murder of a peace officer, aggravated robbery,
and burglary of a habitation with intent to commit theft (Dkt. Nos.
70 at 11-13; 77 at 21). Leeson received a sentence of 230 months of
incarceration and 5 years of supervised release (Dkt. No. 68).
Leeson appealed his sentence, arguing that the Court had erred
in considering his convictions for attempted murder and aggravated
robbery as “separate occasions.” In a published opinion dated July
19, 2006, the Fourth Circuit affirmed Leeson’s conviction and
sentence, including the Court’s decision to enhance his sentence
under the ACCA (Dkt. No. 76). The Supreme Court subsequently denied
Leeson’s petition for a writ of certiorari. Leeson v. United
States, 127 S. Ct. 1874 (2007).
1 Unless otherwise noted, citations to docket entries in this
section refer to Criminal No. 1:03cr43.
2
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
B. The First § 2255 Motion
Leeson filed a timely motion under 28 U.S.C. § 2255, arguing
that 1) the Government had failed to prove the requisite nexus with
interstate commerce, 2) 18 U.S.C. § 922(g)(1) is unconstitutional,
and 3) his trial counsel was ineffective (Dkt. No. 1 at 4-7).2 The
magistrate judge recommended that the Court dismiss Leeson’s
motion. Despite receiving an extension of time, Leeson failed to
object to the recommended dismissal (Dkt. Nos. 5; 8). On June 17,
2008, the Court denied Leeson’s motion and dismissed the case with
prejudice (Dkt. No. 10).
C. The Instant § 2255 Motion
On July 6, 2016, the Fourth Circuit granted Leeson
authorization to file a second or successive § 2255 motion after
determining he had made a prima facie showing that the Supreme
Court’s decision in Johnson v. United States applied to his case
(Dkt. No. 7). In his Motion, Leeson raised four claims for relief:
1) “Ineffective assistance of counsel,” 2) “Court Error - U.S.S.G.
Calculation,” 3) “Johnson claim,” and 4) “U.S.S.G. Manual § 4A1.2
Commentary” (Dkt. No. 9 at 5-11). The Court referred the Motion to
2 Unless otherwise noted, citations to docket entries in this
section refer to Civil No. 1:08cv97.
3
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
the Honorable Robert W. Trumble, United States Magistrate Judge,
for initial review.
In its response to Leeson’s Motion, the Government argued that
Grounds One, Two, and Four are time-barred by 28 U.S.C. § 2255(f)
because they fail to raise a newly-recognized right (Dkt. No. 16 at
10-12). It further contended that Leeson’s ACCA enhancement remains
valid because his predicate offenses do not rest on the ACCA’s
residual clause. Id. at 12-24. Magistrate Judge Trumble’s report
and recommendation (“R&R”) recommended that the Court deny Leeson’s
Motion and dismiss this case with prejudice (Dkt. No. 34). Leeson
filed timely objections to the R&R, in which he “agrees that three
of the claims presented are in fact time barred” (Dkt. No. 36 at
1), but objects that his 1988 conviction for burglary of a
habitation with intent to commit theft, in violation of Texas Penal
Code § 30.02(a), does not qualify as a crime of violence after
Johnson. Id. at 1-8.
II. STANDARDS OF REVIEW
A. Magistrate Judge’s R&R
When reviewing a magistrate judge’s R&R, the Court must review
de novo only the portions to which an objection is timely made. 28
U.S.C. § 636(b)(1)(C). On the other hand, “the Court may adopt,
4
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
without explanation, any of the magistrate judge’s recommendations
to which the prisoner does not object.” Dellacirprete v. Gutierrez,
479 F. Supp. 2d 600, 603-04 (N.D.W.Va. 2007) (citing Camby v.
Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will uphold those
portions of a recommendation to which no objection has been made
unless they are “clearly erroneous.” See Diamond v. Colonial Life
& Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).
B. Pro Se Pleadings
The Court must liberally construe pro se pleadings. Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Loe v. Armistead, 582 F.2d 1291,
1295 (4th Cir. 1978). A pro se petition is subject to dismissal,
however, if the Court cannot reasonably read the pleadings to state
a valid claim on which the petitioner could prevail. Barnett v.
Hargett, 174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the petitioner’s legal arguments for him, nor should it
“conjure up questions never squarely presented.” Beaudett v. City
of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
III. APPLICABLE LAW
It is appropriate to begin with a brief discussion of the law
applicable to Leeson’s sentence. Leeson was convicted in 2005 of
violating 18 U.S.C. § 922(g) by being a felon in possession of a
5
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
firearm. At that time, the ACCA imposed an enhanced sentence of 15
years to life imprisonment if a defendant had three previous
convictions for a “violent felony” or “serious drug offense.”
Serious drug offenses included those under the Controlled Substance
Act for which the maximum term of imprisonment was 10 years or
more. 18 U.S.C. § 924(e)(2)(A). Violent felonies included those
punishable by more than one year in prison that:
(i) ha[d] as an element the use, attempted use, or
threatened use of physical force against the person
of another; or
(ii) [were] burglary, arson, or extortion, involve[d]
use of explosives, or otherwise involve[d] conduct
that present[ed] a serious potential risk of
physical injury to another.
Id. § 924(e)(2)(B). Subsection (i) is known as the “force clause”;
subsection (ii) contains “enumerated offenses” and the so-called
“residual clause,” which is the focus of Leeson’s Motion. Without
an ACCA enhancement, being a felon in possession of a firearm
carries a 10-year maximum sentence. Id. § 924(a)(2).
The landscape of sentencing under the ACCA changed radically
in 2015 when the Supreme Court of the United States decided Johnson
v. United States. There, the Court considered a vagueness challenge
to the ACCA’s definition of a violent felony. Reasoning that the
6
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
statute’s residual clause involved too much uncertainty about “how
to estimate the risk posed by a crime,” and how much risk sufficed
to qualify a felony as violent, the Supreme Court declared the
clause unconstitutionally vague. 135 S.Ct. at 2557-59. Thereafter,
in Welch v. United States, the Court applied Johnson retroactively
to cases on collateral review, thus entitling petitioners to
challenge their ACCA residual clause enhancements under 28 U.S.C.
§ 2255. 136 S.Ct. 1257, 1261 (2016).
When a petitioner challenges whether a predicate offense
depends on the unconstitutional residual clause of the ACCA, a
court must determine whether the offense fits within the force
clause or qualifies as an enumerated offense. See United States v.
White, 836 F.3d 437, 442-43 (4th Cir. 2016). As to the enumerated
offense of “burglary,” which is relevant here, in Taylor v. United
States, the Supreme Court concluded “that Congress meant by
‘burglary’ the generic sense in which the term is now used in the
criminal codes of most states.” 495 U.S. 575, 598 (1990). “Although
the exact formulations vary, the generic, contemporary meaning of
burglary contains at least the following elements: an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Id.
7
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
If a defendant has been convicted of burglary “where the
generic definition has been adopted, with minor variations in
terminology,” then the conviction qualifies as a predicate offense
if “the state statute corresponds in substance to the generic
definition of burglary.” Id. at 599. Some states, however, “define
burglary more broadly . . . by including places, such as
automobiles and vending machines, other than buildings.” Id. at
599. The Supreme Court has made clear that the ACCA “makes burglary
a violent felony only if committed in a building or enclosed space
. . . not a boat or motor vehicle.” Shepard v. United States, 544
U.S. 13, 15-16 (2005).
“To determine whether a prior conviction is for generic
burglary . . . courts apply what is known as the categorical
approach: They focus solely on whether the elements of the crime of
conviction sufficiently match the elements of generic burglary,
while ignoring the facts of the case.” Mathis v. United States, 136
S. Ct. 2243, 2248 (2016). If a statute has “multiple alternative
elements,” the Supreme Court has approved the “modified categorical
approach.” Id. at 2249 (citing Shepard, 544 U.S. at 26). “Under
that approach, a sentencing court looks to a limited class of
documents (for example, the indictment, jury instructions, or plea
8
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
agreement and colloquy) to determine what crime, with what elements
a defendant was convicted of.” Id. The court then compares that
particular crime to the elements of generic burglary. Id.
IV. DISCUSSION
A federal prisoner may attack his sentence by way of a motion
under 28 U.S.C. § 2255, which provides:
A prisoner in custody under sentence of a court
established by Act of Congress . . . may move the court
which imposed the sentence to vacate, set aside or
correct the sentence.
. . . If the court finds that the judgment was [unlawful
for various specified reasons], the court shall vacate
and set the judgment aside and shall discharge the
prisoner or resentence him or grant a new trial or
correct the sentence as may appear appropriate.
United States v. Hadden, 475 F.3d 652, 661 (4th Cir. 2007)
(alteration in original) (quoting 28 U.S.C. § 2255).
Therefore, “a district court’s resolution of a prisoner’s
§ 2255 petition proceeds in two steps.” Id. “First, the district
court must determine whether the prisoner’s sentence is unlawful on
one of the specified grounds.” Id. If the sentence is unlawful, the
court must vacate and set aside the sentence. “Second, if the
prisoner’s sentence . . . is set aside, the district court ‘shall’
grant the prisoner an ‘appropriate’ remedy.” Id.
9
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
A. Leeson’s Claims One, Two, and Four
Finding no clear error in Magistrate Judge Trumble’s
recommendation that the Court dismiss Claims One, Two, and Four as
time-barred (Dkt. No. 34 at 7-10), the Court ADOPTS the
recommendation and DISMISSES WITH PREJUDICE Claims One, Two, and
Four of the Motion.
B. Leeson’s Claim Three
Regarding the Johnson argument raised by Leeson in Claim
Three, the R&R concluded that none of Leeson’s predicate offenses
relied on the residual clause (Dkt. No. 34 at 11-19). Leeson,
however, contends that the statute applicable to his burglary
conviction is too broad to qualify as an ACCA enumerated offense
(Dkt. No. 36). Based on Fourth Circuit cases, the Court agrees.
When Leeson was convicted of burglary in 1988, the relevant
Texas statute provided as follows:
(a) A person commits an offense if, without the
effective consent of the owner, the person:
(1) enters a habitation, or a building (or any
portion of a building) not then open to the
public, with intent to commit a felony, theft,
or an assault; or
(2) remains concealed, with intent to commit a
felony, theft, or an assault, in a building or
habitation; or
10
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
(3) enters a building or habitation and commits or
attempts to commit a felony, theft, or an
assault.
Texas Penal Code Ann. § 30.02(a) (West 1988). Leeson’s charging
documents indicate that “on or about October 29, 1988, [Leeson] did
then and there unlawfully with intent to commit theft, enter a
habitation owned by Deborah Westrope . . . without consent of any
kind” (Dkt. No. 9-7 at 1). This conduct correlates with
§ 30.02(a)(1).
Texas law in 1988 defined a “habitation” as “a structure or
vehicle that is adapted for the overnight accommodation of
persons.” Texas Penal Code Ann. § 30.01(1) (West 1988). A “vehicle”
included “any device in, on, or by which any person or property is
or may be propelled, moved, or drawn in the normal course of
commerce or transportation, except such devices as are classified
as ‘habitation.’” Id. § 30.01(3). To determine whether a structure
or vehicle is suitable for overnight accommodation, Texas courts
“look to a host of considerations such as the contents of the
structure, including bedding, electricity, plumbing, or furniture.”
Salazar v. State, 284 S.W.3d 874, 877 (Tex. Crim. App. 2009).
Because it squarely addressed whether a conviction under Texas
Penal Code § 30.02(a)(3) is a crime of violence in the Fourth
11
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
Circuit, at first inquiry, United States v. Bonilla appears to
dictate the outcome of this case. 687 F.3d 188 (4th Cir. 2012). In
Bonilla, the court reasoned that, “[b]ecause section (a)(3)
requires an unlawful entry, of a building or habitation, and the
separate intent to commit a felony, theft, or assault, . . . it
corresponds ‘in substance’ to Taylor’s generic definition of
burglary.” Id. at 193. This same analysis applies to subsection
(a)(1). See id. But see United States v. Herrold, 883 F.3d 517 (5th
Cir. 2018) (en banc) (holding that § 30.02(a) is not divisible and
subsection (3) is not a crime of violence), petition for cert.
filed, No. 17-1445 (April 19, 2018). But in Bonilla, the court did
not consider the breadth of “habitation” under § 30.02(a).
Other Fourth Circuit cases, however, have addressed similar
state burglary statutes that criminalize unlawful entry into
vehicles. In United States v. Henriquez, the court analyzed
Maryland’s burglary statute, which provides that “[a] person may
not break and enter the dwelling of another with the intent to
commit theft or a crime of violence.” 757 F.3d 144, 148 (4th Cir.
2014) (quoting Md. Code Ann., Crim. Law § 6-202(a)). Maryland’s
interpretation of “dwelling” includes places “intended to be used,
and in fact . . . used, as an abode and place for humans to sleep.”
12
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
Id. (quoting McKenzie v. State, 962 A.2d 998, 1005 (Md. 2008)).
This “capture[s] recreational vehicles and easily could cover those
boats and motor vehicles that people intend to use, and do use, as
their dwellings.” Id. at 148-49. Because “a sentencing court would
have no way to ensure that a first degree burglary conviction in
Maryland did not involve an excluded enclosure,” the crime is
broader than the generic definition, and thus not a crime of
violence. Id. at 149.
Likewise, in United States v. White, the Fourth Circuit
decided whether a conviction for burglary under W. Va. Code § 61-3-
11(a) qualifies as “burglary” within the meaning of the ACCA. 836
F.3d at 444. West Virginia’s burglary statute provides as follows:
If any person shall, in the nighttime, break and enter,
or enter without breaking, or shall, in the daytime,
break and enter, the dwelling house, or an outhouse
adjoining thereto or occupied therewith, of another, with
intent to commit a crime therein, he shall be deemed
guilty of burglary.
W. Va. Code § 61-3-11(a). Critically, the statutory definition of
a “dwelling house” includes vehicles:
[A] mobile home, house trailer, modular home, factory-
built home or self-propelled motor home, used as a
dwelling regularly or only from time to time, or any
other nonmotive vehicle primarily designed for human
habitation and occupancy and used as a dwelling regularly
or only from time to time.
13
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
Id. § 61-3-11(c). Because this statute includes vehicles, the
Fourth Circuit concluded that “the West Virginia burglary statute
encompasses conduct that is excluded from the definition of generic
burglary,” and does not qualify as an ACCA predicate offense.
White, 836 F.3d at 445.
Texas Penal Code § 30.02(a) contains the same fatal over-
breadth. Section 30.02(a) criminalizes burglary of a “habitation,”
which includes structures or vehicles “adapted for the overnight
accommodation of persons.” Texas Penal Code Ann. § 30.01(1) (West
1988). A vehicle may be so adapted if it is found to contain
“bedding, electricity, plumbing, or furniture.” Salazar, 284 S.W.3d
at 877. Undoubtedly, a “habitation” under § 30.02(a) “easily could
cover those boats and motor vehicles that people intend to use, and
do use, as their dwellings.” Henriquez, 757 F.3d at 149. Since
boats and motor vehicles fall outside the Supreme Court’s
definition of generic burglary, a conviction under Texas Penal Code
§ 30.02(a) cannot qualify as an enumerated predicate offense under
the ACCA, and Leeson’s conviction under § 30.02(a) should not have
been counted. It follows that, absent the Texas burglary
conviction, Leeson has an insufficient number of predicate offenses
to qualify for an enhancement under the ACCA, making his ACCA
14
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
enhancement unlawful. The Court therefore GRANTS Claim Three of his
Motion (Dkt. No. 1).
C. The Appropriate Remedy
The Court must next determine the appropriate remedy. “The
district court has broad and flexible power to fashion an
appropriate remedy in granting relief on collateral review.” United
States v. Davis, 708 F. App’x 767, 768 (4th Cir. 2017) (unpublished
decision). “[T]he end result of a successful § 2255 proceeding must
be the vacatur of the prisoner’s unlawful sentence . . . and one of
the following: (1) the prisoner’s release, (2) the grant of a
future new trial to the prisoner, (3) or a new sentence, be it
imposed by (a) a resentencing or (b) a corrected sentence.” Hadden,
475 F.3d at 661. “A district court need not actually vacate the
original sentence if [an amended] judgment has the ‘practical
effect’” of doing so. Davis, 708 F. App’x at 769 (citing Hadden,
475 F.3d at 661 n.8).
Here, because the length of Leeson’s sentence was unlawfully
extended by application of the ACCA enhancement, the appropriate
form of relief is the imposition of a new sentence. Given the
circumstances of this case, a formal resentencing is unnecessary
and, in fact, would needlessly prolong Leeson’s incarceration.
15
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
“[H]ad Johnson v. United States been controlling at the time his
sentence was imposed, [Leeson] would have only faced a statutory
maximum term of 120-months and [Leeson] has now served more than
120-months in prison.” Evans v. United States, No. 3:16-cv-00212-
RLV, 2016 WL 3079923, at *2 (W.D.N.C. May 31, 2016). Furthermore,
a conviction for which a ten year sentence is imposed is classified
as a Class C Felony and carries a maximum of three years of
supervised release, 18 U.S.C. §§ 3559(a)(3), 3583(b), rather than
the five-year term previously imposed by the Court at Leeson’s
sentencing.
Therefore, the Court CORRECTS Leeson’s sentence by reducing
his term of incarceration to a period of time served and his term
of supervised release to a period of three years. Accord United
States v. Westry, No. 3:04CR267, 2017 WL 2221714, at *3 (E.D. Va.
May 19, 2017). All other terms and conditions of the Judgment
entered on February 16, 2005, remain in full force and effect
(Crim. No. 1:03cr43, Dkt. No. 68).
V. CONCLUSION
For the reasons discussed, the Court:
16
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
1) ADOPTS in part and REJECTS in part the R&R (Civ. No.
1:16CV139, Dkt. No. 34; Crim. No. 1:03CR43, Dkt. No.
144);
2) GRANTS in part and DENIES in part Leeson’s Motion (Civ.
No. 1:16CV139, Dkt. No. 1; Crim. No. 1:03CR43, Dkt. No.
112);
3) DENIES AS MOOT Leeson’s various motions to supplement and
for expedited review (Civ. No. 1:16CV139, Dkt. Nos. 21,
22, 23, 24, 26, 28, 29, 33, 37, 38, 40, 42, 43, 44; Crim.
No. 1:03CR43, Dkt. Nos. 132, 133, 134, 135, 137, 139,
140, 143, 147, 148, 152, 154, 155, 156);
4) CORRECTS Leeson’s sentence by reducing his term of
incarceration to a period of time served and his
supervised release to a period of three years; and
5) ORDERS the Bureau of Prisons to release Leeson as soon as
practicable from his current facility of incarceration.
It is so ORDERED.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11(a) of the Rules Governing § 2255
Proceedings, the district court “must issue or deny a certificate
of appealability when it enters a final order adverse to the
17
LEESON V. USA 1:16CV139/1:03CR43
MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND
REJECTING IN PART REPORT AND RECOMMENDATION [DKT. NO. 34] AND
GRANTING IN PART AND DENYING IN PART § 2255 MOTION [DKT. NO. 1]
applicant” in such a case. If the court denies the certificate, “a
party may not appeal the denial but may seek a certificate from the
court of appeals under Federal Rule of Appellate Procedure 22.” 28
U.S.C. foll. § 2255(a).
The Court finds it inappropriate to issue a certificate of
appealability in this matter because Leeson has not made a
“substantial showing of the denial of a constitutional right” with
regard to Claims One, Two, and Four. See 28 U.S.C. § 2253(c)(2). A
petitioner satisfies this standard by demonstrating that reasonable
jurists would find that any assessment of the constitutional claims
by the district court is debatable or wrong, and that any
dispositive procedural ruling by the district court is likewise
debatable. See Miller–El v. Cockrell, 537 U.S. 322, 336–38 (2003).
Upon review of the record, the Court concludes that Leeson has
failed to make the requisite showing with regard to Claims One,
Two, and Four, and DENIES a certificate of appealability.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record, the pro se petitioner, by certified mail and
return receipt requested, and all appropriate agencies. The Clerk
is further DIRECTED to enter a separate judgment order.
DATED: May 11, 2018.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE