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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

UNITED STATES OF AMERICA *

 * CRIMINAL ACTION: 09-00143-KD-B

v. * CIVIL ACTION: 15-00165-KD

 * 

THOMAS EDWARD TAYLOR *

ORDER

This matter is before the Court on Taylor’s Notice of Supplemental Authority and Motion 

for Judgment (Docs. 33-35) and the Government’s Response (Doc. 37). These pending motions 

impact Taylor’s presently stayed Motion to Vacate, Set Aside or Correct his Sentence pursuant 

to 28 U.S.C. § 2255 (as amended) (Docs. 26, 27) (and the Government’s Response (Doc. 30)). 

Specifically, as grounds for his first habeas motion, Taylor contends that his December 

18, 2009 Armed Career Criminal Act (ACCA) based sentence1 should be vacated in light of the 

U.S. Supreme Court’s decision in Johnson v. United States, 135 S.Ct. 2551 (2015) (holding that 

imposing an increased sentence under the residual clause of the ACCA violates the Constitution's 

guarantee of due process) as he does not qualify as an armed career criminal. Taylor asserted

that per Johnson, none of his ACCA predicate convictions of Burglary Third Degree qualified as 

“violent felonies” under the residual clause and that such convictions no longer qualify as ACCA 

predicates under the enumerated crimes clause under United States v. Howard, 732 F.3d 1332 

(11th Cir. 2014) (resentencing required under Descamps v. United States, 133 S.Ct. 2376 (2013), 

because Alabama’s Burglary Third Degree statue was non-generic and indivisible). 

In response, the Government agreed that under Johnson Taylor’s convictions for burglary 

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 Pursuant to a plea agreement, Taylor entered a plea to Count 1 of the indictment charging the 

office of 18 U.S.C. § 922(g)(1), prohibited person in possession of a firearm. (Doc. 14). Taylor was 

sentenced under the ACCA to 180 months. (Doc. 20).

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in the third degree would not qualify under the ACCA had he been sentenced today. The 

Government added that it is the DOJ’s position that Johnson announced a new substantive rule of 

constitutional law which is retroactive in ACCA cases – those pending on direct review, as well 

as those that were final before that date but which are challenged on collateral review, as in this 

case (citing Schriro v. Summerlin, 542 U.S. 348, 352 (2004)). The Government noted that the 

Eleventh Circuit has held differently, ruling that Johnson does not apply retroactively for 

collateral review purposes (citing In re Rivero, 797 F.3d 986 (11th Cir. 2015); In re Franks, 2016 

WL 80551 (11th Cir. Jan. 6, 2016)). The Government contended that while the Court is bound by 

Eleventh Circuit law, currently pending is the case of Welch v. United States, 2016 WL 90594 

(2015) which will decide the issue of Johnson’s retroactivity. As such, the Government 

requested entry of a stay of this case pending a ruling in Welch (suggesting it may address the 

case law with regard to first time habeas petitioners). In reply, Taylor asserts, in part, as follows: 

...Because Mr. Taylor seeks relief not under 18 U.S.C. § 2255(h) but under § 2255(a) in 

a first petition, the government’s reliance on In re Franks and In re Rivero, two second or 

successive motions, is misplaced. The government and the Department of Justice agree

that under Johnson, Taylor’s predicate convictions for burglary in the third degree would 

not qualify under ACCA had he been sentenced today....They also agree that Johnson

announced a new substantive rule of constitutional law which is retroactive in ACCA 

cases- those pending on direct review, as well as those that were final before that date but 

which are challenged on collateral review, as here....The Eleventh Circuit has not 

foreclosed relief in a first motion under § 2255. The government and this Court should 

not, therefore, feel bound by the rulings in Franks and Rivero, which involved second or

successive motions and have no relevance to the motion filed in this case under 28 U.S.C. 

§ 2255(a). Accordingly, the relief sought in Taylor’s motion is due to be granted. 

Alternatively, the Court could hold in abeyance a ruling until a decision later this term by 

the Supreme Court in Welch v. United States.

(Doc. 31 at 4). On March 8, 2016, the Court stayed this case pending Welch. (Doc. 32). 

On March 29, 2016, the Eleventh Circuit decided the case of United States v. Mays, 2016 

WL 121149 (11th Cir. Mar. 29, 2016) (per curiam), a first habeas petition case, holding that that 

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Mays was sentenced illegally under the ACCA because per the rulings in Descamps and Howard

a conviction under the Alabama Burglary Third Degree statute, Ala. Code § 13A-7-7, is no 

longer a violent felony. The Eleventh Circuit reasoned that if Mays were sentenced now the 

enumerated crimes clause of the ACCA, which makes generic burglary a qualifying offense 

under the ACCA, would not apply to his burglary conviction. Id. Recognizing that the U.S. 

Supreme Court struck down the residual clause of the ACCA as void for vagueness in Johnson, 

Mays asserted that his sentence was illegal under Section 924(e) because he did not have the 

requisite number of qualifying convictions to trigger a Section 924(e)(1) sentence. Id. The 

Mays Court ruled: “[w]e agree and find that Mays’s sentence is illegal. Although Descamps and 

Johnson were decided after Mays’s conviction and sentence became final, we hold that both 

cases apply retroactively in the first post-conviction relief....we reverse the district court’s denial 

of Mays’s motion and remand for resentencing.” Id. at *1. The Mays Court further specified: 

...[i]n light of our finding that Johnson applies retroactively to prisoners, like Mays, who 

are challenging their § 924(e)(1) sentence via an initial habeas petition, we conclude that 

Mays's burglary conviction cannot be considered a violent felony under the residual 

clause...

....We reverse the district court's denial of Mays's § 2255 motion to vacate and remand 

this case to district court for resentencing, without the § 924(e)(1) enhancement. In 

resentencing Mays, the district court shall perform a fresh review of the 18 U.S.C. § 

3553(a) factors. See United States v. Estrada, 777 F.3d 1318, 1323 (11th Cir.2015) (per 

curiam) (ordering that, on remand for resentencing, “the district court shall consider all 

appropriate 18 U.S.C. § 3553(a) factors in determining a reasonable sentence”)...

Id. at *7.

On March 30, 2016, Taylor filed a notice of this supplemental authority and moved for 

judgment on his habeas petition based on Mays. (Doc. 33). Taylor contends that he is in the 

same position as Mays such that he is entitled to the same relief. Per Mays, Taylor moves for his 

motion for judgment of law to be granted and for his case to be set for resentencing as the 

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Eleventh Circuit has now held that Johnson is retroactive in the first post-conviction context.

In response, the Government acknowledges the Mays ruling – that Johnson applies 

retroactively on collateral review to prisoners seeking habeas relief for the first time – but states

the issue “has not been definitively decided by the Supreme Court[]” in light of the pending 

Welch case. (Doc. 37). The Government requests the Court continue the stay pending Welch.

Upon consideration, given the Eleventh Circuit’s recent and clear ruling directly on point 

to Taylor’s status as a first time habeas petitioner, the Court concludes that it is bound by Mays

at the present time. As such, it is ORDERED that the STAY is LIFTED, Taylor’s Motion 

(Docs. 33-35) is GRANTED such that the Judgment (his prior sentence) (Doc. 20) is

VACATED per United States v. Mays, 2016 WL 121149 (11th Cir. Mar. 29, 2016), Taylor’s 

habeas petition (Docs. 26, 27) is GRANTED per Mays, supra, and this matter is SET for

RESENTENCING on May 13, 2016 at 12:00 p.m. (noon) in Courtroom 5A of the United 

States Courthouse, 113 Saint Joseph Street, Mobile, AL, 36602.

The United States Marshal is DIRECTED to produce Thomas Edward Taylor for the 

May 13, 2016 resentencing.

The Clerk of Court is DIRECTED to arrange for Thomas Edward Taylor to be present 

for the sentencing by issuance of the appropriate Writ of Habeas Corpus.

Thomas Edward Taylor shall remain in custody pending resentencing.

DONE AND ORDERED this the 12th day of April 2016.

/s/ Kristi K. DuBose

KRISTI K. DuBOSE

UNITED STATES DISTRICT JUDGE

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