November 13, 2012 - Government Concedes Error on 2241 Motion

November 13, 2012 the United States conceded error in Michael W. Johnson v. Warden, FCC Coleman-USP-I, in the United States District Court for the Middle District of Florida, Case Number 5:11-cv-42, to a federal habeas petition filed under 28 U.S.C. Section 2241 and the "savings clause" of 28 U.S.C. Section 2255(d), challenging a 21 year 10 month(262 month) Armed Career Criminal sentence entered by a district court in 2003 in Missouri.  This client had exhausted all his prior remedies after challenging the ACC sentence at sentencing, on direct appeal after trial, in a 2255 habeas filed in Missiour and then was denied a certificate of appealability at the Eighth Circuit Court of Appeals.  The underlying merits issue was whether a prior Missouri state conviction for "tampering with amotor vehicle by operation" was a crime of violence or not.  After the client lost his final challenge to this issue in the Eighth Circuit the Eighth Circuit, in another case, held that this Missouri offense was not a crime of violence for ACC purposes - but the client was procedurally barred from seeking further relief at that point and the new decision did not help Mr. Johnson.  Mr. Kent briefed this issue under a petition filed pursuant to 28 USC 2241 arguing that he fell under the savings clause of 2255(d).  In conceding error, the Government cited another case Mr. Kent won on appeal to the Eleventh Circuit earlier this year, Chaplin v. Hickey, 458 Fed. Appx. 827 (11th Cir. 2012), for the proposition that the court should accept the Government's concession to entitlement of relief under 2241 when the sentence imposed exceeds the statutory maximum.  We thank the Government for its concession.  If the district court accepts the concession and remands the case to Missouri for resentencing, Mr. Johnson should receive a sentence that will amount to time already served and be released.