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(CR05-5896-RBL) - 1 

HONORABLE RONALD B. LEIGHTON 

UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF WASHINGTON 

AT TACOMA 

WILLIAM GARY FUGITT, 

 Defendant-Petitioner, 

 v. 

UNITED STATES OF AMERICA, 

 Plaintiff-Respondent. 

CASE NO. C16-5423-RBL 

(CR05-5896-RBL) 

ORDER GRANTING PETITIONER’S 

§ 2255 MOTION 

DKT. #1 

THIS MATTER is before the Court on Defendant-Petitioner William Fugitt’s Motion to 

Vacate/Correct his Sentence under 28 U.S.C. § 2255 [Dkt. #1].1 A grand jury indicted Fugitt in 

December 2005 for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) 

and an Armed Career Criminal under 18 U.S.C. § 924(e)(1). Following an April 2007 bench 

trial, he was convicted. He stipulated to being an ACC, given his prior violent felony convictions 

for Washington second-degree burglary, first-degree child molestation, and two counts of 

indecent liberties, which raised his sentencing range from a ten-year statutory maximum to a 

 

1

 The United States Court of Appeals for the Ninth Circuit authorized Fugitt’s second 

§ 2255 filing, concluding he made a prima facie showing that his sentence is unconstitutional 

under Johnson v. United States, 576 U.S. __, 135 S. Ct. 2551 (2015), which deemed the Armed 

Career Criminal Act’s residual clause, 18 U.S.C. § 924(e)(2)(B)(ii) (defining “violent felony”), 

unconstitutionally vague. See Dkt. #69, USCA Order. 

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DKT. #1 - 2 

fifteen-year mandatory minimum. See U.S.S.G. § 4B1.4(b). On September 21, 2007, the Court 

sentenced Fugitt to 293 months imprisonment with five years supervised release. He claims to 

have been imprisoned for over ten years. 

Fugitt argues his sentence is unconstitutional after Johnson v. United States, 576 U.S. __, 

135 S. Ct. 2551 (2015), because without the Armed Career Criminal Act’s residual clause, his 

prior convictions do not meet the Act’s definition of “violent felony,” 18 U.S.C. § 924(e)(2)(B). 

He asks the Court to grant him habeas relief by vacating his ACCA-enhanced sentence. The 

Government argues that even though Fugitt’s prior convictions would not qualify as violent 

felonies today, the Court should deny him relief because (1) his claim is untimely and (2) 

procedurally defaulted, and (3) he has not proved that the Court relied on the residual clause 

when sentencing him. 

I. BACKGROUND 

Federal law forbids certain people, such as convicted felons, from shipping, receiving, or 

possessing firearms. See 18 U.S.C. § 922(g). It punishes violators with up to 10 years’ 

imprisonment. See § 924(a)(2). But if the violator has three or more earlier convictions for a 

“violent felony” or a “serious drug offense,” the ACCA increases his prison term to a mandatoryminimum of 15 years. See § 924(e)(1) (emphasis added). A violent felony is “any crime 

punishable by imprisonment for a term exceeding one year ... 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 the use of explosives, 

or

 otherwise involves conduct that presents a serious potential risk of 

physical injury to another.” 

 

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§ 924(e)(2)(B) (emphasis added to distinguish the residual clause from the elements clause and 

the enumerated offenses clause, respectively). 

In 2015, the Supreme Court held the definition’s final clause—its residual clause—

unconstitutionally vague. See Johnson v. United States, 135 S. Ct. at 2563. It later concluded 

Johnson had announced a new substantive rule with constitutional underpinnings that applies 

retroactively to cases on collateral review. See Welch v. United States, __ U.S. __, 136 S. Ct. 

1257, 1265 (2016) (applying test in Teague v. Lane, 489 U.S. 288, 310, 109 S. Ct. 1060 (1989)). 

Defendants determined to be ACC under the residual clause before Johnson therefore warrant 

resentencing. 

Fugitt argues his ACCA-enhanced sentence is unconstitutional because his prior 

convictions no longer qualify as violent felonies. He argues his Washington second-degree 

burglary (RCW 9A.52.030(1) (1985)) and child molestation (RCW 9A.44.083 (1989)) 

convictions qualified as “violent felonies” only under the residual clause’s definition. And while 

the Court could have relied on the elements clause when determining his indecent liberties 

convictions (RCW 9A.44.100(1)(a) (1985)) constituted ACCA predicates, it could not reach that 

conclusion today, because the statute does not require juror unanimity on the offender’s use of 

force, and the offense is not enumerated. 

The Government concedes Fugitt’s second-degree burglary and child molestation 

convictions would not qualify as ACCA predicates today (although it argues his indecent 

liberties conviction would), 2 but it argues the Court cannot reach the merits of this dispute. It 

 

2

 If the Court determines two of Fugitt’s prior convictions fell under the residual clause’s 

definition, it may stop its analysis, because the ACCA requires a defendant to have been 

convicted of three or more prior violent felonies for the Court to impose an enhancement. 

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argues his claim is untimely because he relies on pre-Johnson case law and procedurally 

defaulted because he neglected to raise these issues on direct appeal. It also argues that because 

the Court accepted Fugitt’s ACC stipulation without further elaboration, he cannot prove that it 

necessarily relied on the residual clause when sentencing him. 

 II. DISCUSSION

A. Standard of Review. 

A prisoner in federal custody may petition the court that sentenced him to vacate, set 

aside, or correct his sentence if it imposed his sentence “in violation of the Constitution or laws 

of the United States” or lacked “jurisdiction to impose such sentence,” or if his sentence 

exceeded “the maximum authorized by law” or “is otherwise subject to collateral attack.” 28 

U.S.C. § 2255(a). The asserted error of law must be a fundamental defect resulting in “a 

complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 346, 94 S. Ct. 2298 

(1974) (quoting Hill v. United States, 368 U.S. 424, 429, 82 S. Ct. 468 (1962)). 

C. Timeliness. 

Fugitt makes defensive arguments that his prior convictions could not and cannot qualify 

under the elements or enumerated clauses because the Washington statutes for second-degree 

burglary and child molestation do not require the use of force and are overbroad and indivisible. 

He relies on pre-Johnson case law to argue his prior convictions necessarily fell under the 

residual clause: Johnson v. United States, 559 U.S. 133, 130 S. Ct. 1265 (2010) (defining 

“physical force” as “violent force”—force capable of causing physical pain or injury to another) 

(Johnson I) and Descamps v. United States, __ U.S. __, 133 S. Ct. 2276 (2013) (Courts may not 

apply the categorical approach to ACCA sentencing when the defendant’s crime-of-conviction is 

indivisible.). 

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The Government concedes Fugitt filed his application for permission to file a second 

§ 2255 motion within one-year of the Supreme Court’s Johnson decision. It argues, however, 

that he cannot timely rely on Johnson I and Descamps because their holdings are not retroactive. 

Fugitt retorts that his entire petition is timely because he could not have earlier argued 

that his prior convictions no longer constitute ACCA predicates, since they would have 

continued to meet the residual clause’s broad definition of “violent felony.” He argues he may 

support his argument with Johnson I’s and Descamps’ holdings because as reiterations of settled 

rules, their holdings represent the results the courts always should have reached when comparing 

his convictions to the violent felony clauses, and they apply retroactively. 

A petitioner seeking relief under § 2255 has one year from (1) his date of conviction, (2) 

the date on which a government-created impediment to making such a motion is removed, (3) the 

date on which the facts supporting the claims presented could have been discovered, or (4) “the 

date on which the right asserted was initially recognized by the Supreme Court, if that right has 

been newly recognized by the Supreme Court and made retroactively applicable to cases on 

collateral review.” 28 U.S.C. § 2255(f). 

Fugitt asked the Ninth Circuit for permission to file a second § 2255 motion within one 

year of Johnson’s retroactive decision. His reliance on pre-Johnson case law does not undermine 

the crux of his petition, making it untimely, because without Johnson, his prior convictions 

would continue to meet the residual clause’s definition. See United States v. Ladwig, No. 2:03-

CR-00232-RHW, 2016 WL 3619640, at *5 (E.D. Wash. June 28, 2016). Nor is his reliance on 

these arguments misplaced. Settled rules—those dictated by precedent existing when a 

defendant’s conviction became final—apply retroactively on collateral review. See Chaidez v. 

United States, __ U.S. __, 133 S. Ct. 1103, 1107, 185 L. Ed. 2d 149 (2013) (Unless a Teague

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exception applies, “[o]nly when [the Supreme Court] appl[ies] a settled rule may a person avail 

herself of the decision on collateral review.”). Both Johnson I and Descamps applied settled rules 

of law. See In re Jackson, 776 F.3d 292, 296 (5th Cir. 2015); see also Ezell v. United States, 778 

F.3d 762, 766. The Court may therefore consider Fugitt’s defensive arguments about why his 

Washington second-degree burglary and child molestation convictions never properly qualified 

as ACCA predicates under the enumerated or elements clauses. 

D. Procedural Default. 

The Government argues Fugitt’s claim that his convictions no longer qualify as violent 

felonies is procedurally defaulted because he failed to raise it on direct review. Fugitt argues the 

Court should excuse his default, allowing him to raise the argument now, because (1) it was not 

available to him until the Supreme Court decided Johnson, and (2) retrospectively, the Court 

unconstitutionally enhanced his sentence. The Government does not contest that the ACCA 

enhancement prejudiced Fugitt, but it argues the Court should not excuse his failure to earlier 

argue that the residual clause is unconstitutionally vague. It contends that even though this 

argument was more-often-than-not unsuccessful, it was not so novel that a defendant could 

ignore the need to preserve it. Indeed, the Government argues, Johnson successfully presented 

the argument to the Supreme Court after it had twice disregarded it. 

“[T]o obtain collateral relief based on trial errors to which no contemporaneous objection 

was made, a convicted defendant must show both (1) ‘cause’ excusing his double procedural 

default, and (2) ‘actual prejudice’ resulting from the errors of which he complains.” United 

States v. Frady, 456 U.S. 152, 167–68 (1982). “Cause” excusing a procedural default includes “a 

showing that the factual or legal basis for a claim was not reasonably available to counsel.” 

Murray v. Carrier, 477 U.S. 478, 488 (1986). A claim was not reasonably available if it is based 

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on a Supreme Court decision that “explicitly overrule[d] one of [its] precedents.” Reed v. Ross, 

468 U.S. 1, 17 (1984). “Actual prejudice” exists when there is a reasonable probability that the 

court would have imposed a lighter sentence without the error to which the petitioner failed to 

object. See Strickler v. Greene, 527 U.S. 263, 289 (1999). 

Fugitt has shown both cause and prejudice. The Supreme Court explicitly overturned its 

precedent (James v. United States, 550 U.S. 192, 127 S. Ct. 1586 (2007) and Sykes v. United 

States, 564 U.S. 1, 131 S. Ct. 2267 (2011)) when holding the ACCA’s residual clause 

unconstitutional. See Johnson, 135 S. Ct. at 2563. Fugitt could not have successfully argued that 

his prior convictions do not qualify as ACCA predicates until after the Supreme Court decided 

Johnson. Also, his sentence would not have exceeded the ten-year statutory maximum for being 

a felon in possession had the Court not determined he qualified as an ACC. Fugitt may therefore 

argue his sentence is unconstitutional after Johnson without seriously implicating any of the 

concerns requiring deference to a procedural bar. 

E. Reliance on the Residual Clause. 

 The Government argues that to receive habeas relief, Fugitt must prove that the Court 

relied on the ACCA’s residual clause by a preponderance of the evidence. It argues he cannot 

meet this burden because the Court accepted his stipulation without expounding which ACCA 

clauses his prior convictions satisfied. Fugitt disagrees that he bears this burden. He argues the 

residual clause’s availability to the Court, and the Government’s insistence that the Court rely on 

it, infected his sentencing with constitutional error. He also argues that the completeness of a 

court’s analysis at sentencing cannot provide a principled basis for distinguishing which § 2255 

petitioners later receive habeas relief. The Government argues that even if Fugitt could show that 

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DKT. #1 - 8 

the Court did more than accept his ACC stipulation, he cannot show that the Court did not 

mistakenly rely on another clause to conclude his prior convictions constitute ACCA predicates. 

The Court has pondered how a petitioner can establish that a constitutional error occurred 

as a matter of fact where no descriptive record exists for the habeas court’s review. When a 

sentencing court accepts a stipulation that a defendant’s prior convictions constitute violent 

felonies under the ACCA, typically no record exists explaining whether his prior convictions fit 

the elements clause, the enumerated offenses clause, or the residual clause. The court makes the 

final determination, but the parties evaluate the relationship between the defendant’s prior 

convictions and the violent felony clauses behind closed doors. The Court has concluded that in 

the context of habeas review of an ACCA-enhanced sentence where the defendant stipulated to 

his ACC classification, the benefit of the doubt lies with the petitioner: the Court presumes his 

predicate offenses only satisfied the residual clause. See, e.g., Murray v. United States, 15-cv5720-RJB, 2015 WL 7313882, at *5 (W.D. Wash. Nov. 19, 2015) (applying the rule of lenity in 

the petitioner’s favor where the record was unclear why the defendant’s prior convictions 

classified as violent felonies); Gibson, 2016 WL 3349350, at *1–2 (following Murray and 

relying on O’Neal to conclude that when “grave doubt” exists about the constitutionality of the 

petitioner’s sentence, the reviewing court must conclude the sentencing court relied on the 

residual clause). Here, however, the Court need not even reach this presumption, as the 

Government concedes Fugitt’s first-degree burglary and child molestation convictions could 

have properly fallen within the residual clause only. 

1. Method of Analysis. 

To determine whether a defendant’s past convictions qualify as violent felonies, a court 

uses the three-step process set forth in Descamps v. United States, __ U.S. __, 133 S. Ct. 2276 

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(2013); see also United States v. Gardner, 823 F.3d 793 (4th Cir. 2016) (applying the Descamps

approach to assess whether North Carolina common law robbery meets the elements clause 

definition of “violent felony” under the ACCA). First, a court uses the categorical approach to 

“compare the elements of the statute forming the basis of the defendant’s conviction with the 

elements of the ‘generic’ crime—i.e., the offense as commonly understood.” Descamps, 133 S. 

Ct. at 2281. It may not look to the particular facts underlying the defendant’s conviction. See 

Taylor v. United States, 495 U.S. 575, 600, 110 S. Ct. 2143 (1990). The defendant’s “prior 

conviction qualifies as [a] ... predicate only if the statute’s elements are the same as, or narrower 

than, those of the generic offense.” Id. If the relevant statute sweeps more broadly than the 

generic crime, a conviction under that law cannot serve as an ACCA predicate, even if the 

defendant actually committed the offense in its generic form. Id. at 2283, 86. 

When a statute is overbroad, the court may turn to step two: determining whether the 

statue is divisible or indivisible. If the statute is overbroad and indivisible—it does not contain 

alternative elements—the court’s inquiry ends; “a conviction under an indivisible, overbroad 

statute can never serve as a predicate offense.” See Almanza-Arenas v. Lynch, 815 F.3d 469, 475 

(9th Cir. 2016) (quoting Lopez-Valencia v. Lynch, 798 F.3d 863, 867–68 (9th Cir. 2015)). 

If the statute of conviction is divisible—if it effectively creates several different crimes 

by setting out multiple alternative elements—courts may apply the modified categorical 

approach. Id. at 2281; see also Mathis v. United States, __ U.S. __, 136 S. Ct. 2243, 2249 (2016). 

“The critical distinction is that while indivisible statutes may contain multiple, alternative means 

of committing the crime, only divisible statutes contain multiple, alternative elements of 

functionally separate crimes.” Rendon v. Holder, 782 F.3d 1077, 1086 (9th Cir. 2014) (“[T]he 

Supreme Court regards elements as those circumstances on which the jury must unanimously 

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agree, while it regards means as those circumstances on which the jury may disagree yet still 

convict.”). 

This third step enables a sentencing court to determine which alternative element formed 

the basis of the defendant’s prior conviction by permitting it to consult a limited class of 

documents. Descamps, 133 S. Ct. at 2285. The judge may “peek” at the indictment, jury 

instructions, plea colloquy, and plea agreement to determine whether the listed items are 

elements of the offense and then comparing them to the elements of the generic offense. See 

Mathis, 136 S. Ct. at 2256–57. A court still may not examine the underlying facts. See 

Descamps, 133 S. Ct. at 2285. For example, if instead of listing multiple elements disjunctively, 

a statute enumerates various factual means of committing a single element, a court may not ask 

whether the defendant’s conduct falls within the generic definition, because a jury did not have 

to agree on the means he employed. See Mathis, 136 S. Ct. at 2256; see also Rendon, 782 F.3d at 

1086. Illustrative statutes are therefore often too broad to serve as ACCA predicates. See, e.g., 

Mathis, 136 S. Ct. at 2257 (holding Iowa burglary, which set out alternative means of fulfilling 

its locational element that were broader than the locational element of generic burglary, 

overbroad). 

2. Washington Second-Degree Burglary. 

Fugitt was convicted under the 1985 version of Washington’s second-degree burglary 

statute: “A person is guilty of burglary in the second degree if, with intent to commit a crime 

against a person or property therein, he enters or remains unlawfully in a building other than a 

vehicle.” RCW 9A.52.030(1) (1985) (emphasis added). Besides its ordinary meaning, the statute 

also defines “building” as including “any dwelling, fenced area, vehicle, railway car, cargo 

container, or any other structure used for lodging of persons or for carrying of business therein, 

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or for the use, sale, or deposit of goods.” RCW 9A.04.110. “[E]ach unit of a building consisting 

of two or more units separately secured or occupied is a separate building.” Id. 

The Court could not have concluded Washington second-degree burglary satisfies the 

elements clause because the statute does not have “as an element the use, attempted use, or 

threatened use of physical force against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see 

also Johnson I, 559 U.S. at 140. 

It also could not have fallen within the enumerated offenses clause because it is 

overbroad and indivisible. See 18 U.S.C. § 924(e)(2)(B)(ii); see also Almanza-Arenas, 815 F.3d 

at 475. It is not, and could not have properly been, a categorical match with generic burglary. See 

United States v. Hines, 150 F. Supp. 3d 1227, 1229 (E.D. Wash. 2015). Generic burglary 

requires the “unlawful or unprivileged entry into, or remaining in, a building or structure, with 

intent to commit a crime.” Descamps v. United States, __ U.S. __, 133 S. Ct. 2276, 2295 (2013) 

(referencing W. LaFave & A. Scott, Substantive Criminal Law § 8.13, p. 464 (1986)). 

Washington burglary encompasses additional physical areas. See Hines, 150 F. Supp. 3d at 1229. 

The statute is indivisible because it does not require a jury to unanimously conclude which type 

of “building” the defendant entered. See id. at 1230 (referencing the Washington Pattern Jury 

Instructions). Fugitt’s burglary conviction therefore only constituted an ACCA predicate under 

the now-excised residual clause. 

3. Washington First-Degree Child Molestation. 

 Fugitt was convicted under the 1989 version of Washington’s child molestation statute: 

“A person is guilty of child molestation in the first degree when the person has sexual contact 

with another who is less than twelve years old and not married to the perpetrator and the 

perpetrator is at least thirty-six months older than the victim.” RCW 9A.44.083 (1989). 

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Fugitt’s conviction cannot fall under the elements or the enumerated offenses clause. The 

statute does not include “as an element the use, attempted use, or threatened use of physical force 

against the person of another.” 18 U.S.C. § 924(e)(2)(B)(i); see also Johnson I, 559 U.S. at 140. 

And molestation is not an enumerated offense. Therefore, Fugitt’s conviction could only have 

qualified under the residual clause. Without three prior violent felony convictions, the Court 

cannot constitutionally classify Fugitt as an ACC. He warrants resentencing. 

III. CONCLUSION

Fugitt’s Motion to Vacate/Correct his Sentence under 28 U.S.C. § 2255 [Dkt. #5] is 

GRANTED. He and the Government shall work with the Court to schedule a mutually agreeable 

date for his resentencing. The parties may submit sentencing memoranda. 

IT IS SO ORDERED. 

Dated this 26th day of September, 2016. 

A

Ronald B. Leighton 

United States District Judge 

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