Luke v. USA

Filing 20

MEMORANDUM AND ORDER re: 14 AMENDED PETITION for Writ of Habeas Corpus filed by Petitioner Marty L. Luke, 1 MOTION to Vacate, Set Aside or Correct Sentence filed by Petitioner Marty L. Luke. IT IS HEREBY ORDERED that the motion and amended motion to vacate, set aside or correct sentence [1, 14] are denied. IT IS FURTHER ORDERED that the Clerk of Court shall docket a copy of this Memorandum and Order in Luke's Criminal Case No. 1:07CR178 CDP.A separate judgment in accord with this Order is entered in this case today. Signed by District Judge Catherine D. Perry on 12/27/16. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARTY LUKE,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:15 CV 239 CDP

MEMORANDUM AND ORDER
Movant Marty Luke, through appointed counsel, seeks relief under 28
U.S.C. § 2255, relying on Johnson v. United States, 135 S.Ct. 2551 (2015). Luke
was sentenced to 180 months imprisonment under the Armed Career Criminal Act,
18 U.S.C. §924(3). The government opposes the motion on a number of grounds,
including a procedural argument that Luke is really seeking relief under Descamps
v. United States, 133 S.Ct. 2276 (2013) and Mathis v. United States, 136 S.Ct.
2243 (2106), which the government argues do not provide a basis for relief in this
successive § 2255 motion.
I need not decide the procedural issue, however, because a case recently
decided by the Eighth Circuit Court of Appeals, United States v. Sykes, No. 143139, 2016 WL 7383744 (8th Cir. Dec. 21, 2016) shows that Luke is not entitled to
relief on the merits of his claim. Sykes held that Missouri’s second-degree

burglary statute is a divisible statute that lists elements in the alternative, and that
convictions for second degree burglary of a building are enumerated crimes of
violence covered by the ACCA. Because Luke has more than three convictions
for second degree burglary of a building, he is not entitled to relief.
Background
Marty Luke pleaded guilty to being felon in possession of a firearm in 2007.
Because he had more than three convictions for burglary, he qualified as a career
offender and I sentenced him to the mandatory minimum term of 180 months
imprisonment. He did not file a direct appeal, but he filed an earlier motion under
28 U.S.C. § 2255, Case No. 1:09CV52 CDP. In that earlier motion Luke argued
that his counsel was ineffective and that he had been mentally incompetent during
the earlier proceedings. After an evidentiary hearing which included testimony
from two expert witnesses as well as from Luke and his former lawyer, I denied
the motion. That denial was affirmed by the Court of Appeals. United States v.
Luke, 686 F.3d 600 (8th Cir. 2012).
After the Supreme Court decided Johnson, Luke sought permission to file a
successive § 2255 motion to argue for relief under that case, and the Eighth Circuit
Court of Appeals granted that request. Appointed counsel filed an amended
motion. Under the procedure established by our Court, I directed the United
States Probation Office to prepare a resentencing report. That report concluded
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that Luke remains a career offender. Both the government and Luke’s counsel
have filed further briefs on the issue, which I have fully considered.
Discussion
The Armed Career Criminal Act, 18 U.S.C. §924(e), enhances the sentences
in felon in possession cases from a ten-year maximum to a fifteen-year mandatory
minimum if a defendant has three previous convictions for a “violent felony.” The
statutory definition of violent felony includes any felony that:
(i)

has as an element the use, attempted use, or threatened use of physical
force against the person of another; or

(ii)

is burglary, arson, or 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) (emphasis added). The italicized portion set out above is
referred to as the residual clause, while the listed crimes of burglary, arson, or
extortion are often called the “enumerated” crimes.
In Johnson v. United States, 135 S.Ct. 2551 (2015) the Supreme Court held
that the residual clause of the ACCA was unconstitutionally vague. Luke argues
here that he is entitled to relief under Johnson because his prior convictions under
Missouri’s second-degree burglary statute, § 569.170, R. S. Mo., were considered
crimes of violence under the now-invalidated residual clause of the ACCA. At the
time of his sentencing, of course, neither the presentence report nor the court
specified how his priors qualified him under the statute.
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Missouri’s second-degree burglary statute includes unlawful entry into
buildings or inhabitable structures, but an inhabitable structure is defined as a
“ship, trailer, sleeping car, airplane or other vehicle or structure.” § 569.010(2), R.
S. Mo. Luke argues here that his second degree burglary convictions must have
been considered as falling under the residual clause because the Missouri burglary
statute is broader than generic burglary and the statute merely provides different
means of committing the crime. See Mathis v. United States, 136 S.Ct. 2243
(2016). The government argues that this Mathis-related argument cannot be raised
on this successive § 2255 motion.
I need not consider this procedural argument because the recent Eighth
Circuit case of United States v. Sykes, No. 14-3139, 2016 WL 7383744 (8th Cir.
Dec. 21, 2016) precludes any relief for Luke. In that case the Court of Appeals had
earlier concluded that the prior convictions under § 569.170 qualified under the
ACCA, United States v. Sykes, 809 F.3d 435 (2016), but the Supreme Court
granted certiorari and vacated that decision and remanded for further consideration
in light of Mathis. 137 S.Ct. 124 (2016). On remand, the Eighth Circuit held that
Sykes’s convictions for second degree burglary of a building qualified under the
ACCA. Sykes, 2016 WL 7383744 at *2. The Court reasoned that although the
statute was broader than generic burglary, it was divisible and listed different
elements, not simply different means for committing the crime. Because it was
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divisible, it was appropriate to apply the modified categorical approach and look at
the charging documents, which showed that Sykes had been charged with
burglarizing a building, and not merely an “inhabitable structure.” Id.
Sykes resolves the issue presented here. Luke has more than three
convictions for second-degree burglary in which he was specifically charged with
burglary of a building. These convictions required that he be sentenced to a
minimum of fifteen years under the Armed Career Criminal Act. He is not entitled
to any relief.
Accordingly,
IT IS HEREBY ORDERED that the motion and amended motion to
vacate, set aside or correct sentence [1, 14] are denied.
IT IS FURTHER ORDERED that the Clerk of Court shall docket a copy
of this Memorandum and Order in Luke’s Criminal Case No. 1:07CR178 CDP.
A separate judgment in accord with this Order is entered in this case today.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 27th day of December, 2016.

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