Prutting v. Martinez
| Decision Date | 25 August 2021 |
| Docket Number | CV 21-2283-PA(E) |
| Court | U.S. District Court — Central District of California |
| Parties | KENNETH FLOYD PRUTTING, Petitioner, v. WARDEN FELIPE MARTINEZ, JR., Respondent. |
ORDER OF DISMISSAL
Petitioner a federal prisoner, filed a “Petition Pursuant to Title 28 USC § 2241 through Title 28 USC § 2255(d)'s Savings Clause, etc.” on March 12, 2021. The Petition seeks to challenge Petitioner's sentence for possession of a firearm by a felon, imposed in United States v Prutting, United States District Court for the Middle District of Florida case No. 92-271-Cr-T-99(B).[1]
On May 10, 2021, Respondent filed “Respondent's Motion to Dismiss or Transfer Petition, etc.” (“Motion to Dismiss or Transfer”), accompanied by exhibits.[2] On July 19, 2021, Petitioner filed “Petitioner's Motion to Reply to the Government[']s Response for Motion to Dismiss, etc ” which constitutes Petitioner's reply to the Motion to Dismiss or Transfer (“Reply”).
In 1993, in United States District Court for the Middle District of Florida case No. 92-271-Cr-T-99(B), a jury found Petitioner guilty of being a felon in possession of a firearm in violation of 18 U.S.C. section 922(g)(1) (Petition, p. 3; Respondent's Ex. 3 (Reporter's Transcript) [“R.T.”] pp. 112-13). “The maximum punishment for this offense is typically 10 years in prison.” United States v. Stitt, 139 S.Ct. 399, 404 (2018); 18 U.S.C. § 924(a)(2). As discussed below, however, Petitioner received a much longer sentence by reason of his extensive criminal history.
The evidence at trial, including Petitioner's own admissions, showed that Petitioner had suffered three prior felony robbery convictions in Connecticut: (1) a conviction for a second degree robbery committed in 1980, involving Petitioner's taking of a television and a radio while armed with a BB gun (which Petitioner had put into a garbage bag “to make it look like it was a real gun”); (2) a conviction for a first degree robbery committed in 1981, two months after the previous robbery (this robbery involved the taking of money from a girlfriend after Petitioner slapped her and spit on her); and (3) a 1984 conviction for a 1983 first degree armed robbery of a liquor store carried out by Petitioner's confederates while Petitioner allegedly remained in the car (Respondent's Ex. 3 (R.T. 56-58, 61-62, 77-80, 84-85)). In a consolidated proceeding in 1982, Petitioner had pled guilty to the 1980 robbery and the 1981 robbery (R.T. 78-79; see Petition, p. 27; Reply, pp. 10-11 & Ex. 2). Petitioner had received a suspended prison sentence of 2 1/2 to 5 years plus three years' probation for the 1980 robbery and a prison sentence of 30-31 months for the 1981 robbery (Reply, Ex. 2). In 1984, Petitioner received a prison sentence of 20 years for the 1983 robbery (R.T. 61).
Based on Petitioner's three prior robbery convictions, the District Court in the federal case determined that Petitioner was an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. section 924(e) (Respondent's Ex. 6, p. 10). Under section 924(e), a person who violates § 922(g)(1) “and has three previous convictions . . . for a violent felony . . ., committed on occasions different from one another, ” shall be imprisoned for a minimum of fifteen years. 18 U.S.C. section 924(e)(1); see United States v. Walker, 953 F.3d 577, 579 (9th Cir. 2020), cert. denied, 141 S.Ct. 1084 (2021) (citation omitted); see also Sessions v. Dimaya, 138 S.Ct. 1204, 1211-12 (2018) () (citation omitted).
ACCA defines a “violent felony” as “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 [known as the force clause or the elements clause]; or (ii) is burglary, arson, or extortion, involves use of explosives [known as the enumerated felonies clause], or otherwise involves conduct that presents a serious potential risk of physical injury to another [known as the residual clause].” United States v. Lawrence, 905 F.3d 653, 657 n.5 (9th Cir. 2018) (brackets in original); 18 U.S.C. § 924(e)(2)(B).
The sentencing court did not expressly identify under which ACCA clause the court deemed Petitioner's robberies to be violent felonies.[3] Petitioner received a total ACCA sentence of 264 months, to run consecutive to a Connecticut sentence on an escape conviction (Petition, p. 3; Respondent's Lodgment 1, Respondent's Ex. 4; Respondent's Ex. 6, pp. 12-15).
Petitioner appealed, arguing that the trial court had abused its discretion by denying a continuance and also had erred by admitting certain evidence concerning Petitioner's prior convictions. See United States v. Prutting, United States Court of Appeals for the Eleventh Circuit case No. 93-2692, “Initial Brief of Appellant, etc., ” 1993 WL 13630743 (filed Dec. 10, 1993). The United States Court of Appeals for the Eleventh Circuit affirmed in an unpublished disposition. See United States v. Prutting, 24 F.3d 254 (11th Cir. 1994) (table).
On June 21, 2016, Petitioner filed a “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence, etc.” in United States v. Prutting, United States District Court for the Middle District of Florida case No. 8:16-CV-01673. In this section 2255 motion, Petitioner argued that his sentence was unlawful under Johnson v. United States, 576 U.S. 591 (2015) (“Johnson”). Johnson had held unconstitutional ACCA's residual clause (18 U.S.C. section 924(e)(2)(B)(ii)). On April 18, 2016, the United States Supreme Court held that Johnson had announced a substantive rule of law which applied retroactively on collateral review. Welch v. United States, 136 S.Ct. 1257 (2016).
On November 2, 2016, the District Court denied Petitioner's section 2255 motion, ruling: (1) the motion was untimely; and (2) the Johnson argument failed on the merits because Petitioner's robbery convictions were violent felonies under ACCA's elements clause (see Order filed November 2, 2016 in Prutting v. United States, United States District Court for the Middle District of Florida case No. 8:16-cv-1673-T-24TGW). On February 1, 2018, the United States Court of Appeals for the Eleventh Circuit affirmed. See Prutting v. United States, 723 Fed. App'x 886 (11th Cir. 2018), cert. denied, 139 S.Ct. 788 (2019). On January 7, 2019, the United States Supreme Court denied certiorari. Prutting v. United States, 139 S.Ct. 788 (2019).
On October 8, 2020, Petitioner filed an “Application for Leave to File a Second or Successive Habeas Corpus Petition, etc.” in the United States Court of Appeals for the Eleventh Circuit, in In re Prutting, case No. 20-13780. Petitioner sought to challenge his sentence on the ground that the prosecution purportedly failed to prove that Petitioner knew both that he possessed a firearm and that he belonged within the relevant category of persons who cannot lawfully possess firearms, as allegedly required by Rehaif v. United States, 139 S.Ct. 2191 (2019) (“Rehaif”) (). Rehaif held that 18 U.S.C. section 924(a)(2), which authorizes imprisonment for up to ten years if the defendant “knowingly” violates section 922(g), requires that the defendant know not only that he or she possessed a firearm, but also that he or she had the relevant status while possessing the firearm. Rehaif, 139 S.Ct. at 2194, 2200. Thus, an individual charged with possession of a firearm by a felon must “know[] of his status as a person barred from possessing a firearm.” Id. at 2195. On October 16, 2020, the United States Court of Appeals for the Eleventh Circuit denied Petitioner's application to file a second or successive section 2255 motion.
Petitioner contends:
1. Petitioner assertedly is actually innocent of the section 922(g)(1) offense because: (a) the jury instructions allegedly were invalid under Rehaif; (b) the asserted “misinformation” concerning the elements of 922(g)(1) allegedly violated Petitioner's purported “automomy interest” under the Fifth and Sixth Amendments to make “an informed choice” concerning “how to protect his liberty interest”; and (c) Petitioner supposedly had not possessed a firearm (see Petition, pp. 4, 8; Reply, pp. 6-9) (Ground One); and
2. Petitioner assertedly is actually innocent of the ACCA enhancement because: (1) “two of his priors [i.e., the two robbery convictions which were consolidated for sentencing] were consolidated and should have only been counted as one” for purposes of section 924(e)[4]; and (2) the second degree robbery allegedly did not qualify as a “crime of violence” under Mathis v. United States, 136 S.Ct. 2243 (2016) (“Mathis”) (), and Descamps v. United States, 570 U.S. 254 (2013) (“Descamps”) () (see Petition, pp. 4, 27-28) (Ground Two).
A federal prisoner who contends that his or her conviction or sentence is subject to collateral attack “may move the court which...
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