Thompson v. United States of America
ORDER: The 1 otion to Vacate/Set Aside/Correct Sentence (2255) (Criminal no. 03-CR-3069-LRR) is denied. A limited certificate of appealability will issue. The 26 Pro Se Motion to terminate counsel is denied as moot. Signed by Judge Linda R Reade on 09/15/2017. (copy w/NEF mailed to Petitioner) (jjh) Modified text on 9/15/2017 (jjh).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
BRAUN NATHAN THOMPSON,
28 U.S.C. § 2255 MOTION
UNITED STATES OF AMERICA.
This matter appears before the court on the movant’s motion to vacate, set aside or
correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). The movant filed such
motion on April 28, 2016. In his § 2255 motion and related briefing (civil docket nos. 1
& 19), the movant claims that he is entitled to relief under the recent United States
Supreme Court decision in Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551
(2015). The government disputes that the movant is entitled to relief under 28 U.S.C. §
2255 (civil docket no. 20).
A jury found the movant guilty of count 1, being a felon in possession of a firearm
in violation of 18 U.S.C. §§ 922(g)(1) & 924(e), count 2, possessing an unregistered
firearm in violation of 26 U.S.C. §§ 5841, 5861(d) & 5871, and count 3, being a felon in
possession of ammunition in violation of 18 U.S.C. §§ 922(g)(1) & 924(e). The court
ordered a pre-sentence report to be prepared. The parties filed sentencing memoranda
(criminal docket nos. 76, 78 & 85). The court determined that the movant qualified as an
armed career criminal and calculated a sentencing guidelines range of 262 to 327 months
imprisonment based on a total adjusted offense level of 34 and a criminal history category
VI. On October 30, 2004, the court determined that the movant qualified as an armed
career criminal and, after departing upward, sentenced the movant to a term of 420 months
imprisonment on count 1 and count 3 and a term of 120 months imprisonment on count 2.
It ordered the sentences to be served concurrently to one another.
III. LEGAL STANDARD
A prisoner in custody under sentence of a federal court is able to move the
sentencing court to vacate, set aside or correct a sentence. See 28 U.S.C. § 2255(a). To
obtain relief pursuant to 28 U.S.C. § 2255, a federal prisoner must establish: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”;
(2) “that the court was without jurisdiction to impose such sentence”; (3) “that the sentence
was in excess of the maximum authorized by law”; or (4) “[that the judgment or sentence]
is otherwise subject to collateral attack.” Id.; see also Hill v. United States, 368 U.S. 424,
426-27 (1962) (listing four grounds upon which relief under 28 U.S.C. § 2255 may be
claimed); Watson, 493 F.3d at 963 (same); Lee v. United States, 501 F.2d 494, 499-500
(8th Cir. 1974) (clarifying that subject matter jurisdiction exists over enumerated grounds
within the statute); Rule 1 of the Rules Governing Section 2255 Proceedings (specifying
scope of 28 U.S.C. § 2255). If any one of the four grounds is established, the court is
required “to vacate and set aside the judgment and [it is required to] discharge the prisoner
or resentence him or grant a new trial or correct the sentence as may appear appropriate.”
28 U.S.C. § 2255(b).
When enacting 28 U.S.C. § 2255, Congress “intended to afford federal prisoners
a remedy identical in scope to federal habeas corpus.” Sun Bear v. United States, 644
F.3d 700, 704 (8th Cir. 2011) (en banc) (quoting Davis v. United States, 417 U.S. 333,
343 (1974)) (internal quotation mark omitted). Although it appears to be broad, 28 U.S.C.
§ 2255 does not provide a remedy for “all claimed errors in conviction and sentencing.”
Id. (quoting United States v. Addonizio, 442 U.S. 178, 185 (1979)). Rather, 28 U.S.C.
§ 2255 is intended to redress constitutional and jurisdictional errors and, apart from those
errors, only “fundamental defect[s] which inherently [result] in a complete miscarriage of
justice” and “omission[s] inconsistent with the rudimentary demands of fair procedure.”
Hill, 368 U.S. at 428; see also Sun Bear, 644 F.3d at 704 (clarifying that the scope of
28 U.S.C. § 2255 is severely limited and quoting Hill, 368 U.S. at 428); United States v.
Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under 28 U.S.C. § 2255 is reserved
for transgressions of constitutional rights and for a narrow range of injuries that could not
have been raised for the first time on direct appeal and, if uncorrected, would result in a
complete miscarriage of justice.” (citing Poor Thunder v. United States, 810 F.2d 817, 821
(8th Cir. 1987))). A collateral challenge under 28 U.S.C. § 2255 is not interchangeable
or substitutable for a direct appeal. See United States v. Frady, 456 U.S. 152, 165 (1982)
(making clear that a motion pursuant to 28 U.S.C. § 2255 will not be allowed to do service
for an appeal). Consequently, “an error that may justify reversal on direct appeal will not
necessarily support a collateral attack on a final judgment.” Id. (quoting Addonizio, 442
U.S. at 184).
The parties dispute whether the movant has enough prior qualifying convictions to
be subject to an enhanced sentence under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(1). The movant argues that all five of his prior convictions do not qualify
as predicate felonies and, therefore, his sentence exceeds the non-ACCA statutory
maximum. The government argues that relief is not available under 28 U.S.C. § 2255
because the movant still has three convictions that qualify as violent felonies for purposes
of the ACCA.
Under the ACCA, a defendant convicted of being a felon in possession of a firearm
faces more severe punishment if the defendant has three or more previous convictions for
a “violent felony or a serious drug offense.” 18 U.S.C. § 924(e)(1). The ACCA defines
a violent felony as any crime punishable by imprisonment for a term exceeding one year
that: (1) “has as an element the use, attempted use, or threatened use of physical force
against the person of another”; (2) “is burglary, arson, or extortion, involves use of
explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of
physical injury to another.” 18 U.S.C. § 924(e)(2)(B). These definitions of “violent
felony” fall into three respective categories: (1) the elements clause; (2) the
enumerated-crimes clause; and (3) and the residual clause.
In Johnson, the Supreme Court addressed the constitutionality of the residual clause;
the Supreme Court held that “the indeterminacy of the wide-ranging inquiry required by
the residual clause both denies fair notice to the defendant and invites arbitrary
enforcement by judges.” ___ U.S. at ___, 135 S. Ct. at 2557. Shortly after invalidating
the residual clause, the Supreme Court concluded in Welch v. United States that Johnson
announced a substantive rule that applied retroactively on collateral review. ___ U.S. ___,
___, 136 S. Ct. 1257, 1265 (2016). Hence, under Johnson and Welch, a prior conviction
may not be used as a predicate ACCA offense if it falls under 18 U.S.C. § 924(e)(2)(B)’s
invalidated residual clause.
The Supreme Court, however, clarified that the ACCA’s other two clauses, namely,
the elements clause and the enumerated-crimes clause, remain viable. See Johnson, ___
U.S. at ___, 135 S. Ct. at 2563 (“Today’s decision does not call into question application
of the [ACCA] to the four enumerated offenses, or the remainder of the [ACCA’s]
definition of a violent felony.”); accord United States v. Sykes, 844 F.3d 712, 716 (8th
Cir. 2016). Thus, application of Johnson and Welch negates the use of a felony unless it
qualifies as an ACCA predicate without relying on the residual clause. “[E]ven if a
defendant’s prior conviction was counted under the residual clause, courts can now
consider whether that conviction counted under another clause of the ACCA.” In re
Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (citing Welch, ___ U.S. at ___, 136 S. Ct.
at 1268). The movant must prove that he was sentenced using the residual clause and that
the use of that clause made a difference in the sentence. See id. at 1273; see also Stanley
v. United States, 827 F.3d 562, 566 (7th Cir. 2016) (stating that a “proponent of collateral
review” must “produce evidence demonstrating entitlement to relief”); In re Cooks, No.
16-14444-J, 2016 U.S. App. LEXIS 23767, *8 n.2, (11th Cir. Aug. 9, 2016) (emphasizing
that burden is on movant); Holloway v. United States, 960 F.2d 1348, 1355 (8th Cir.
1992) (citing Kress v. United States, 411 F.2d 16, 20-21 (8th Cir. 1969), for the
proposition that the burden of proof is on petitioner in § 2255 proceeding); Day v. United
States, 428 F.2d 1193, 1196 (8th Cir. 1970) (providing that petitioner bears burden of
proof on each ground asserted in § 2255 motion); Taylor v. United States, 229 F.2d 826,
832 (8th Cir. 1956) (“Because the statutory proceeding is a collateral attack upon the
judgment of conviction, the burden is on the [movant] to establish a basis for relief under
some one or more of the grounds set forth in [§ 2255].”).
The undisputed facts in the movant’s pre-sentence report refer to his 1979
conviction for aggravated robbery and indicate the following:
A Freeborn County, Minnesota Complaint reflects that, on
December 7, 1978, the defendant robbed a Walgreens Drug
Store in Albert Lea, Minnesota. During the robbery, the
defendant used a sawed off shotgun and fled on foot. Later
that evening, law enforcement officers arrested the defendant
who was still in possession of the shotgun. During the
robbery, $181.64 was taken.
See PSR (criminal docket no. 65) at ¶ 61.1 It also refers to his 1994 convictions for
In this collateral proceeding, the court finds that it is proper to consider the
unobjected-to portions of the pre-sentence report. Cf. Fed. R. Crim. P. 32(i)(3) (stating
that a court “may accept any undisputed portion of the presentence report as a finding of
fact”); United States v. Garcia-Longoria, 819 F.3d 1063, 1067 (8th Cir. 2016) (finding
that, because the pre-sentence report described prior offense conduct without stating its
sources, the failure to object to conduct described in the pre-sentence report relieved the
government of its obligation to introduce at sentencing the documentary evidence Taylor
or Shepard requires); United States v. Shockley, 816 F.3d 1058, 1063 (8th Cir. 2016)
(explaining that sentencing courts may not look to factual assertions within federal presentence reports—even if the defendant failed to object to the reports—where the presentence report indicates that the source of the information in the reports might have been
from a non-judicial source); United States v. Reliford, 471 F.3d 913, 916 (8th Cir. 2006)
(“[I]f the defendant fails to object to fact statements in the presentence investigation report
(PSR) establishing that a prior offense was a violent felony conviction, the government
need not introduce at sentencing the documentary evidence that Taylor and Shepard
otherwise require.”); United States v. Bell, 445 F.3d 1086, 1090 (8th Cir. 2006)
(concluding that court properly considered fact recital that defendant did not contest);
United States v. Paz, 411 F.3d 906, 909 (8th Cir. 2005) (explaining that facts in presentence report are deemed admitted unless the defendant objects to those facts); United
States v. Rodamaker, 56 F.3d 898, 902 (8th Cir. 1995) (stating that it is permissible to rely
on unobjected-to facts in the pre-sentence report); see also United States v. Chapman, No.
16-1810, 2017 WL 3319287 (3d Cir. Aug. 4, 2017) (Jordan, J., concurring) (observing
that the categorical approach impedes uniformity, interferes with the ability of courts to
ensure that repeat, violent offenders receive the most severe sentences, requires judges to
feign amnesia and leads to unusual questions of statutory interpretation). It is clear that
the dimensions of the issues addressed during a criminal trial or change of plea and during
a sentencing hearing are fundamentally different. Indeed, a sentencing hearing is not
undertaken to convict a defendant for the alleged violation, and, therefore, it does not give
rise to the full panoply of rights that are due a defendant at a trial or during a change of
plea. Similarly, it is clear that the dimensions of issues addressed during collateral
proceedings are fundamentally different. Having considered well-established precedent
that emphasizes finality, well-established precedent that reiterates the limited scope of
relief under § 2255 and the likelihood of disparate treatment among individuals seeking
collateral relief based on variables such as the number of offenses charged and convicted
of, the litigation strategies previously pursued or the course chosen at the trial and
appellate level and the availability of initial or subsequent collateral review, the court
declines to adopt an expansive view of the law or proceed with eyes shut when conducting
aggravated robbery. Id. at ¶¶ 66 & 67. The first of those convictions indicates:
A Mower County Complaint reflects that, on October 24,
1993, the defendant robbed the Ankeny Mini-Mart in Austin,
Minnesota. According to the victim in this case, the defendant
entered the Ankeny Mini-Mart at 9:53 p.m., brandished a
hunting knife with a 3” to 5” blade and told her to open the
cash register. The victim complied and the defendant fled the
scene after taking $25 to $100 from the cash register.
Id. at ¶ 66. The second of those convictions indicates:
A police report reflects that, on October 25, 1993, law
enforcement officers received a report of an armed robbery at
Bob’s Food Pride in Chatfield, Minnesota. The description of
the robber was consistent with that provided by witnesses to
the robbery on October 24, 1993, in Austin, Minnesota. It
was also learned that the vehicle description was the same as
the one the defendant was driving the day before.
The store clerk/victim told officers that the defendant
approached her work station, grabbed her wrist, and produced
an open knife. He then placed the blade on her wrist and
began moving it back and forth but did not cut her. The clerk
was able to pull her arm away and began backing away from
the defendant. The defendant continued approaching her,
making sweeping motions with the knife. She was then able
to turn and run, alerting other employees of the robbery in
progress. The defendant reportedly took cash from the
register and fled the store.
When the defendant was later stopped by officers, he lunged
at one officer, hitting him in the mouth. The defendant then
attempted to kick the officer in the groin. The defendant then
ran to his vehicle while the officer grabbed him, trying to pull
him from the vehicle. The defendant started driving away and
after approximately 30 feet, the officer let go of the defendant.
After a high speed chase, the defendant’s car was stopped in
the ditch, and he was subdued. During subsequent interviews,
an ACCA analysis at this stage.
it was learned the defendant described to others how he had
committed the robberies.
Id. at ¶¶ 67, 68 & 69.
Even if the undisputed facts in the pre-sentence report are ignored, the categorical
approach reveals that each of the movant’s Minnesota aggravated robbery convictions
qualifies as a predicate offense for purposes of the ACCA. At the time of the movant’s
sentencing in 2004, legal authority would have supported the court’s use of the categorical
approach to assess whether the movant’s Minnesota aggravated robbery convictions under
M.S.A. § 609.245 were violent felonies under the ACCA’s elements clause.
[O]ne of the elements in Minn. Stat. § 609.245 [is] being
“armed with a dangerous weapon or any article used or
fashioned in a manner to lead the victim to reasonably believe
it to be a dangerous weapon, or inflict[ing] bodily harm upon
another.” Minn. Stat. § 609.245 (1988) (amended 1994). The
penalty [is] “imprisonment for not more than 20 years or . . .
payment of a fine of not more than $35,000, or both.” Id. [A
Minnesota] aggravated robbery conviction meets the definition
of a “violent felony” under the ACCA because it has as an
element “threatened use of physical force” against another and
is punishable by up to 20 years imprisonment.
United States v. Rucker, 545 F. App’x 567, 572-73 (8th Cir. 2013); see also United States
v. Maxwell, 823 F.3d 1057, 1061 (7th Cir. 2016) (concluding that a conviction under
Minnesota’s simple robbery statute is a crime of violence under the Guidelines’ elements
clause); United States v. Raymond, 778 F.3d 716, 717 (8th Cir. 2015) (per curiam)
(endorsing, without analysis, Rucker’s holding that Minnesota aggravated robbery is a
violent felony under § 924(e)); United States v. Spight, No. 16-cv-2459, 2017 U.S. Dist.
LEXIS 34116 (D. Minn. Mar. 6, 2017) (concluding that a conviction under Minnesota’s
first-degree aggravated robbery statute is necessarily a crime of violence under the
ACCA’s force clause because Minnesota’s first-degree aggravated robbery statute is based
on the simple robbery statute).
Additionally, the level of force required to sustain a conviction under M.S.A. §
609.245 satisfies the requirement of physical force under § 924(e)(2)(B)(i)—“force capable
of causing physical pain or injury to another person.” Johnson v. United States, 559 U.S.
133, 140 (2010). Even when focusing on the minimum conduct criminalized by M.S.A.
§ 609.245, it appears from Minnesota case law that it requires more than minimal force
because the power of the owner to retain his or her property has been overcome by the use
of actual force or the threat of imminent force. See United States v. Taylor, No. 16-cv2498, 2017 U.S. Dist. LEXIS 17376 (D. Minn. Feb. 7, 2017) (determining that Minnesota
simple robbery is a violent felony for purposes of the ACCA because it has as an element
the use, attempted use or threatened use of force capable of causing physical pain or
injury); cf. United States v. Lamb, 847 F.3d 928, 930 (8th Cir. 2017) (reasserting that
Michigan robbery convictions were ACCA violent felonies); United States v. Boots, 816
F.3d 971, 974 (8th Cir. 2016) (reaffirming that assault conviction under Iowa Code section
708.1(3) categorically constitutes a threatened use of force); United States v. Pulliam, 566
F.3d 784, 788 (8th Cir. 2009) (“It goes without saying that displaying an operational
weapon before another in an angry or threatening manner qualifies as a threatened use of
physical force against another person.”).
In sum, the movant’s prior Minnesota aggravated robbery convictions constitute
predicate violent felonies for purposes of the ACCA. Since Johnson has no bearing on
offenses that qualify under the elements clause of 18 U.S.C. § 924(e)(2)(B)(i), the
movant’s designation as an armed career criminal stands.
V. CERTIFICATE OF APPEALABILITY
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); Garrett v. United States,
211 F.3d 1075, 1076-77 (8th Cir. 2000); Carter v. Hopkins, 151 F.3d 872, 873-74 (8th
Cir. 1998); Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523.
To make such a showing, the issues must be debatable among reasonable jurists, a court
could resolve the issues differently, or the issues deserve further proceedings. Cox, 133
F.3d at 569 (citing Flieger v. Delo, 16 F.3d 878, 882-83 (8th Cir. 1994)); see also MillerEl, 537 U.S. at 335-36 (reiterating standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484 (2000)). When a federal habeas petition is dismissed on
procedural grounds without reaching the underlying constitutional claim, “the [movant
must show], at least, that jurists of reason would find it debatable whether the petition
states a valid claim of the denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its procedural ruling.” See Slack,
529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
made the requisite “substantial showing” with respect to his assertion that his Minnesota
aggravated robbery convictions do not constitute a predicate offense for purposes of the
ACCA. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b). The movant only presents
a question of substance for appellate review regarding this limited issue. Accordingly, a
certificate of appealability shall be granted with respect to it. If he desires further review
of his motion pursuant to 28 U.S.C. § 2255, the movant may request expansion of the
certificate of appealability by a circuit judge of the Eighth Circuit Court of Appeals in
accordance with Tiedeman, 122 F.3d at 520-22.
Based on the foregoing, it is evident that the alleged error that is asserted by the
movant warrants no relief under 28 U.S.C. § 2255. Because the movant’s claim is without
merit, the movant’s motion pursuant to 28 U.S.C. § 2255 is denied. Additionally, a
limited certificate of appealability will issue. Lastly, the movant’s motion to terminate
counsel (civil docket no. 26) is denied as moot.
IT IS SO ORDERED.
DATED this 15th day of September, 2017.
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