Pannell v. United States
Decision Date | 26 August 2021 |
Docket Number | 16-cv-3496 (NG),06-cr-578 (NG) |
Parties | DERREK PANNELL, Petitioner, v. UNITED STATES, Respondent. |
Court | U.S. District Court — Eastern District of New York |
Petitioner Derrek Pannell seeks relief under 28 U.S.C. § 2255 through two separate motions, from his September 25, 2007 conviction, following a jury trial, of conspiracy to assault and rob employees of the United States Postal Service by use of a dangerous weapon in violation of 18 U.S.C. § 371 (Count One), armed postal robbery in violation of 18 U.S.C § 2114(a) (Count Two), and an associated count of unlawful use of a firearm in connection with a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) in furtherance of Count Two (Count Three). For the reasons that follow, the motions are denied.
On April 7, 2009, the Second Circuit affirmed petitioner's conviction and sentence. United States v. Pannell, 321 Fed.Appx. 51 (2d Cir. 2009), cert. denied, 558 U.S. 1019. He later filed his first motion under 28 U.S.C. § 2255 alleging that his attorneys at trial and sentencing were ineffective. I denied that motion on April 15, 2014. Pannell v. United States, 2014 WL 1478847 (E.D.N.Y. Apr. 15, 2014). The Second Circuit denied Mr. Pannell's motion for a certificate of appealability. Pannell v. United States, No. 14-4223 (2d Cir. Apr 15, 2015).
On June 24, 2016, counsel from the Federal Defenders of New York appeared on behalf of petitioner and filed a motion pursuant to § 2255, arguing that, after Johnson v. United States, 576 U.S. 591 (2015), petitioner's conviction under 18 U.S.C. § 924(c) could not stand because neither Count One nor Count Two qualified as a “crime of violence.” I stayed the motion pending the Second Circuit's decisions in two cases addressing the definition of a “crime of violence” under 18 U.S.C. § 924(c): United States v. Hill, 890 F.3d 351 (2d Cir. 2018) (amended opinion) and United States v. Barrett, 903 F.3d 166 (2d Cir. 2018) (“Barrett I”), rev'd in relevant part by United States v. Barrett, 937 F.3d 126 (2d Cir. 2019) (“Barrett II”).
Following the Second Circuit's decisions in Hill and Barrett II, petitioner's counsel filed supplemental briefing on February 5, 2020. Mr. Pannell later filed a supplemental brief on his own behalf on June 4, 2020 but moved to withdraw it on June 22, 2020. Petitioner, proceeding pro se, submitted another § 2255 motion dated June 18, 2020 to the Second Circuit Court of Appeals, seeking permission to file a successive petition. The Circuit forwarded that motion to this court under Fed. R. App. P. 4(d) on July 9, 2020.[1] On August 10, 2020, petitioner filed further briefing in this court in support of his pro se motion. In both the counseled and pro se § 2255 motions, Mr. Pannell argues that his conviction under § 924(c) was unconstitutional and must be vacated.
On September 4, 2020, I found, sua sponte, that I lacked jurisdiction to adjudicate the motions absent authorization from the Circuit. I therefore transferred them to the Second Circuit pursuant to 28 U.S.C. § 1631 and § 2244(b)(3). See United States v. Larkins, 670 Fed.Appx. 1 (2d Cir. 2016), as amended (Nov. 8, 2016) (summary order); Torres v. Senkowski, 316 F.3d 147, 151-52 (2d Cir. 2003).
At trial, petitioner was convicted of three offenses: conspiracy, armed postal robbery, and unlawful use of a firearm. The first count charged petitioner, together with others, under 18 U.S.C. § 371, with knowingly and willfully conspir[ing] to assault and rob persons having lawful charge, control and custody of property of the United States, to wit: a quantity of money and mail matter, which property belonged to the United States Postal Service, and put such persons' lives in jeopardy by the use of a dangerous weapon.
Petitioner was sentenced to five years' imprisonment on the conspiracy conviction. The second count charged petitioner, under 18 U.S.C. § 2114(a), with knowingly and intentionally assault[ing] and rob[bing] persons having lawful charge, custody and control of property of the United States, to wit: a quantity of money and mail matter, which property belonged to the United States Postal Service, and put such persons' lives in jeopardy by the use of a dangerous weapon.
Petitioner was sentenced to 18 years' imprisonment on the armed postal robbery conviction, to run concurrently with the conspiracy sentence.
Petitioner was also charged with and convicted of violating § 924(c)(1)(A)(ii), which requires the imposition of an additional term of imprisonment of no less than seven years for a defendant who, “during and in relation to any crime of violence . . . uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm . . . if the firearm is brandished....” The phrase “crime of violence” is separately defined in the statute through two provisions: an elements clause and a residual clause. Under the elements clause, a crime of violence is defined as a felony that “has as an element the use, attempted use, or threatened use of physical force against the person or property of another, ” whereas the residual clause defines a crime of violence as a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the crime.” 18 U.S.C. § 924(c)(3)(A)-(B). Petitioner was sentenced to a mandatory seven years' imprisonment for his conviction on Count Three, to run consecutively to the sentences on the conspiracy and armed postal robbery convictions.
In Johnson, the Supreme Court found unconstitutionally vague the residual clause of the Armed Career Criminal Act (“ACCA”), which subjects repeat offenders to enhanced sentences for any “violent felony” that “involves conduct that presents a serious potential risk of physical injury to another, ” a provision that closely tracks the language in the residual clause of § 924(c). Johnson, 576 U.S. at 593; compare 18 U.S.C. § 924(e)(2)(B)(ii) with 18 U.S.C. § 924(c)(3)(B). The Court found that the ACCA did not adequately put defendants on notice of behavior that could subject them to enhanced penalties. Id. at 597. While the residual clause was stricken, the ACCA's elements clause, which mirrors the elements clause of § 924(c), survived. Johnson, 576 U.S. at 606; see also Stokeling v. United States, 586 U.S., 139 S.Ct. 544, 550 (2019); compare 18 U.S.C. § 924(e)(2)(B)(i) with 18 U.S.C. § 924(c)(3)(A).
In assessing whether the elements of an offense qualify as a “crime of violence” under § 924(c)(3), the Second Circuit utilizes the “categorical approach” set forth in Taylor v. United States, 495 U.S. 575 (1990). Hill, 890 F.3d at 55. Under the categorical approach, courts must look only to the statutory definition of an offense-not to the particular underlying facts-in order to determine whether the offense qualifies as a crime of violence. Id.; Taylor, 495 U.S. at 600. To determine what the elements underlying a petitioner's conviction are, a court must first determine whether the statute is divisible. A statute is considered divisible if it sets out one or more crimes in the alternative. Descamps v. United States, 570 U.S. 254 (2013). “If statutory alternatives carry different punishments, then . . . they must be elements.” Mathis v. United States, 579 U.S. __, 136 S.Ct. 2243, 2256 (2016). Under this “modified categorical approach, ” a court may review “a limited class of documents, such as indictments and jury instructions, to determine which alternative formed the basis of the defendant's prior conviction.” Descamps, 570 U.S. at 257.
A wave of litigation followed the Supreme Court's decision in Johnson to determine the scope of the decision's application, and the Second Circuit was soon called upon to interpret Johnson in the context of a robbery under 18 U.S.C. § 1951(b)(1) (“Hobbs Act robbery”), in United States v. Hill. In Hill, the Second Circuit found that, applying the categorial approach, a substantive Hobbs Act robbery satisfies § 924(c)(3)(A)'s elements clause and is a ...
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