Valentine v. United States
| Decision Date | 07 September 2018 |
| Docket Number | Case No. 4:17CV02475 ERW |
| Parties | TYRONE VALENTINE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Eastern District of Missouri |
This matter is before the Court on Petitioner Tyrone Valentine's Pro Se Motion to Vacate, Set Aside, or Correct Sentence [1], Amended Motion to Vacate Conviction and Correct Sentence under 28 U.S.C. § 2255 [13] and Second Amended Motion to Vacate Conviction and Correct Sentence under 28 U.S.C. § 2255 [22].
On April 9, 2014, Petitioner Tyrone Valentine was indicted for being a felon in possession of ammunition in violation of 18 U.S.C. § 922(g)(1). On January 7, 2015, Petitioner pled guilty to the charge in the indictment. He was sentenced on June 17, 2015, to 180-months imprisonment and three years of supervised release.
To determine Petitioner's sentence, the Court used the 2014 United States Sentencing Guidelines Manual. Petitioner's base offense level was calculated to be 22 under § 2K2.1(a)(1)(2), because Petitioner committed the offense after sustaining one prior felony conviction of a controlled substance offense and he used or possessed ammunition in connection with the commission or attempted commission of another offense. He received a four-level increase because the victim sustained life-threatening bodily injury. Petitioner received a Chapter Four enhancement to offense level 34, because he was found to be an Armed Career Criminal. Three levels were subtracted for acceptance of responsibility. His total offense level was 31. Petitioner's criminal history category was III, but was increased to VI because he was found to be an Armed Career Criminal and used and possessed the ammunition in connection with a crime of violence. The guideline range was 188 to 235 months. He was sentenced to 180-months imprisonment and a three-year term of supervised release.
After the United States Supreme Court decided Johnson v. United States, 135 S. Ct. 2251 (2015), Petitioner filed the present pro se motion to correct his sentence asserting he is no longer an Armed Career Criminal in light of the Supreme Court's decision in Johnson. The Federal Public Defender's Office was appointed to represent Petitioner and the Assistant Public Defender filed an amended motion to vacate, and a second amended motion to vacate which the Court will now address.
A federal prisoner who seeks relief under 28 U.S.C. § 2255 on grounds "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). In order to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory violation constituting "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v. Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may be limited by procedural default. A petitioner "cannot raise a non-constitutional or non-jurisdictional issue in a § 2255 motion if the issue could have been raised on direct appeal but was not." Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Claims, including those concerning constitutional and jurisdictional issues, unraised on direct appeal cannot subsequently be raised in a § 2255 motion unless the petitioner establishes "(1) cause for default and actual prejudice or (2) actual innocence." United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 621-22 (1998)). Exceptions to this rule are recognized only upon production of convincing new evidence of actual innocence, and are available only in the extraordinary case. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). However, ineffective assistance of counsel claims may be raised for the first time in a § 2255 motion even if they could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003).
If the petitioner's claims are not procedurally barred, the Court must hold an evidentiary hearing to consider the claims "when the facts alleged, if true, would entitle [the petitioner] to relief." 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994); Payne v. United States, 78 F.3d 343, 347 (8th Cir. 1996) (citation omitted). However, a court may dismiss a claim without a hearing "if the claim is inadequate on its face or if the record affirmatively refutes the factual assertions upon which it is based." Shaw, 24 F.3d at 1043.
Petitioner raises five grounds for relief in his Second Amended Motion to Vacate ("Motion"). First, he asserts he is not an Armed Career Criminal, because the Missouri statute for Assault in the First Degree does not require the use of violent force in every instance listed in the statute. Second, Petitioner argues his 1984 Missouri Assault in the First Degree convictions areinvalid, because the Circuit Court of St. Louis entered them without a valid factual basis. Third, he contends his counsel was ineffective on direct appeal by failing to argue for relief under Johnson. Fourth, he asserts his counsel was ineffective prior to his change of plea hearing, because he failed to seek dismissal of the indictment, which did not include any allegations of an essential element of the offense. Finally, he argues his counsel was ineffective in failing to timely inform Petitioner of the government's plea offer and to describe the admissions the plea agreement included, making his guilty plea uninformed and involuntary in violation of the Constitution.
The Armed Career Criminal Act ("ACCA") establishes a minimum term of imprisonment of fifteen years for individuals convicted of certain crimes who have sustained three prior convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924. The ACCA defines "violent felony" as:
. . . any crime punishable by imprisonment for a term exceeding one year, . . . that (i) has an element the use, attempted use, or threatened use of physical force against the person of another, or (ii) is burglary, arson, extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another . . .
18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court determined the residual clause in the definition of "violent felony" in the ACCA was unconstitutionally vague. 135 S. Ct. 2551. The second half of (ii), "or otherwise involves conduct that presents a serious potential risk of physical injury to another" is the "residual clause" which the Supreme Court found to be unconstitutional. Subsequently, in United States v. Welch, the Supreme Court ruled Johnson was a new substantive rule, retroactive on collateral review. 136 S. Ct. 1257 (2016).
Petitioner was found to be an Armed Career Criminal, because he has a prior felony conviction for Possession with Intent to Distribute Heroin, and two prior felony convictions for Assault in the First Degree in Missouri. The issue before the Court is whether his prior convictions for Assault in the First Degree qualify as "violent felonies." The Court will analyze whether Petitioner's convictions are predicate offenses under the first clause, the elements or use-of-force clause, only, because they clearly are not one of the enumerated offenses listed in (ii) of the ACCA.
The Court applies the categorical approach to determine if a conviction qualifies as a crime of violence when the statute underlying the conviction is indivisible. United States v. Bell, 840 F.3d 963, 964 (8th Cir. 2016) (citing United States v. Gordon, 557 F.3d 623, 625 (8th Cir. 2009)). The categorical approach focuses on the generic elements of the offense, not on the specific underlying facts of the conviction. Id. Under the categorical approach, a court "must consider the lowest level of conduct that may support a conviction under the statute." Id. at 5. When a statute is divisible, or has multiple alternative elements, some of which qualify as violent felonies and some of which do not, the Court applies the modified categorical approach, which allows a sentencing court to look at a limited class of documents, the indictment, jury instructions, or plea agreement and colloquy, to determine what crime, with what elements, of which a defendant was convicted. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
The statute at issue here, Missouri Revised Statute § 565.050 (1978), is clearly divisible and so the modified categorical approach must be applied. The statute permits three different ways a person can commit the crime of Assault in the First Degree:
Mo. Rev. Stat. § 565.050 (1978).1 Petitioner was convicted under § 565.050(2), because his indictment states he "committed the class A felony of assault in the first degree . . . in that the defendant attempted to kill or to cause serious physical injury . . ."
To show the statute cannot qualify as a predicate offense, Petitioner asserts ...
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