United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT LARRY LEE’S MOTION FOR RELEASE ON BAIL, DOC. NO. 208; AND GRANTING GOVERNMENT’S MOTION TO STAY 28 U.S.C. § 2255 PETITION
J. Michael Seabright Chief United States District Judge
Defendant Larry Lee (“Defendant”) has filed a Motion for Release on Bail, Doc. No. 208 (“Motion for Bail”), pending the resolution of his claim under 28 U.S.C. § 2255 that his sentence is unconstitutional under Johnson v. United States, 135 S.Ct. 2551 (2015), and Descamps v. United States, 133 S.Ct. 2276 (2013). As announced at the March 7 and 11, 2016 hearings, the Motion for Bail is GRANTED. Furthermore, given Defendant’s agreement at the March 7, 2016 hearing, the government’s oral Motion to Stay the § 2255 Petition is GRANTED, pending decisions by the Supreme Court in Welch v. United States, No. 15-6418 (U.S.) (cert. granted Jan. 8, 2016) and Mathis v. United States, No. 15-6092 (U.S.) (cert. granted Jan. 19, 2016).
II. BACKGROUND 
Defendant was convicted on November 16, 2012, for violations of 18 U.S.C. § 922(j) (possession of a stolen firearm); 18 U.S.C. § 641 (receiving stolen government property); and 18 U.S.C. §§ 922(g)(1) & 924(e) (felon in possession of a firearm subsequent to three convictions for violent felonies). Doc. Nos. 153, 174. Defendant’s conviction was affirmed on direct appeal on November 10, 2014. Doc. No. 200.
Under the Armed Career Criminal Act (“ACCA”), if a defendant is convicted of a firearms offense and has three or more prior convictions for “a violent felony or a serious drug offense, or both, ” the defendant is subject to a mandatory minimum fifteen-year sentence. 18 U.S.C. § 924(e)(1). A “violent felony” is defined for these purposes as follows:
(B) the 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 --
(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, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[.]
18 U.S.C. § 924(e)(2). The first clause in § 924(e)(2)(B)(ii) (“is burglary, arson, or extortion, involves use of explosives”) is often called the “enumerated offense clause.” The other § 924(e)(2)(B)(ii) clause (“or otherwise involves conduct that presents a serious potential risk of physical injury to another”) is referred to as the “residual clause.”
Among Defendant’s prior state-court convictions are multiple convictions for first-degree burglary under Hawaii Revised Statutes (“HRS”) § 708-810. Doc. No. 180. Given those prior burglary convictions, the court sentenced Defendant on March 8, 2013 to a mandatory fifteen-year prison term under the ACCA. Doc. No. 174, Judgment at 3. When Defendant was sentenced, it did not matter for sentencing purposes whether Defendant’s prior burglary convictions were “violent felonies” under the enumerated offense clause or the residual clause. The court and the parties generally understood or assumed that first degree burglary under HRS § 708-810 fit within one or the other clause when applying the general approach derived from Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005). It was unnecessary for the parties to raise the issue, and the court made no specific finding as to which clause (or both) applied. On June 26, 2015, however, the Supreme Court issued Johnson, which invalidated the ACCA’s residual clause as unconstitutionally vague. 135 S.Ct. at 2557-58.
Given Johnson, and applying the “modified categorical approach” as explained by the Supreme Court in 2013 in Descamps (which elaborated on the Taylor/Shepard methodology) and subsequent Ninth Circuit caselaw to determine whether a prior crime qualifies under the ACCA, Defendant filed his § 2255 petition seeking re-sentencing. Doc. No. 205. The petition argues that absent the residual clause, a first-degree burglary conviction under HRS § 708-810 does not qualify as a burglary under the enumerated offense clause and is thus not a “violent felony” under the ACCA. See Doc. No. 207. If so, Defendant is not an “armed career criminal, ” and is not subject to the fifteen-year mandatory minimum. The argument turns in part on whether Johnson applies retroactively to ACCA cases on collateral review -- that is, whether Johnson is a “substantive rule of constitutional law” such that courts are required to give retroactive effect to that rule in a properly-brought ACCA case on collateral review. See, e.g., Montgomery v. Louisiana, 136 S.Ct. 718, 729 (2016) (discussing Teague v. Lane, 489 U.S. 288 (1989)).
The Supreme Court is considering this exact retroactivity issue in Welch, which is scheduled for oral argument on March 30, 2016. And in Welch, the United States has taken the position that Johnson does indeed apply to ACCA cases on collateral review. See Brief for the United States, Welch v. United States, 2016 WL 537542, at *17 (U.S. Feb. 9, 2016) (No. 15-6418) (“Johnson applies to cases on collateral review because it is a substantive decision.”). Further, in Mathis, the Supreme Court is also considering the methodology used to determine whether a prior conviction qualifies under the ACCA. Mathis is scheduled for oral argument on April 26, 2016. The Supreme Court’s decisions in Welch ...