Jones v. USA

Filing 10

OPINION, MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that this action is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. Signed by District Judge Henry Edward Autrey on 3/29/2017. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ROBERT LEE JONES,

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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) Case No. 1:16cv00196HEA
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s motion to Vacate, Set Aside or
Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255, wherein he asserts
Johnson v. United States, 135 S. Ct. 2551 (2015) is applicable. The United States
of America has responded to the motion. For the reasons set forth below the
Motion will be denied.
Facts and Background
On October 9, 2007, Petitioner entered a plea of guilty to the offense of
Distribution of Five Grams or More of Cocaine Base in violation of 21 U.S.C. §
841(a). After a Presentence Investigation Report was prepared and provided to the

court, Petitioner was found to be a career offender and was sentenced to a withinGuidelines term of imprisonment of 188 months.
The Presentence Investigation Report found Petitioner to be a career offender
under U.S.S.G. § 4B1.1(a), resulting in a Total Offense Level of 31. The
convictions that were classified as career offender predicates were: (1) a crime of
violence conviction for Second Degree Burglary; (2) a crime of violence
conviction for First Degree Burglary; (3) a controlled substance offense of
Possession of a Controlled Substance With the Intent to Distribute; and (4) a
controlled substance offense of Possession of a Controlled Substance With the
Intent to Distribute. The Criminal History Category was VI since he was classified
as a career offender and the resulting sentencing range was 188 to 235 months.
Petitioner’s Claim
Petitioner claims that he is entitled to relief under the Supreme Court’s
decision in Johnson v. United States, 135 S. Ct. 2551 (2015). He argues that his
convictions for burglary were both improperly classified as a “crime of violence”
and that he should not have been sentenced as a career offender.
Discussion
In Johnson v. United States, 135 S. Ct. 2551 (2015), the Supreme Court held
that the residual clause in the definition of a “violent felony” in the Armed Career
Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally
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vague. The Supreme Court has since determined that Johnson announced a new
substantive rule of constitutional law that applies retroactively on collateral review
in cases involving ACCA-enhanced sentences. United States v. Welch, 136 S. Ct.
1257 (2016). However, the Court’s holding in Welch that Johnson applies
retroactively in ACCA cases on collateral review does not govern the separate
question of whether Johnson applies retroactively to claims based on the
Sentencing Guidelines.
Title 18, United States Code, Section § 922(g)(1) provides that a person who
has been previously convicted of a felony is prohibited from possessing a firearm
or ammunition that has affected interstate commerce. Any person who unlawfully
possesses a firearm in violation of this section is subject to a term of imprisonment
of up to ten years. 18 U.S.C. § 924(d). However, the ACCA provides that any
defendant convicted in federal court of being a felon in possession of firearms
and/or ammunition and who has three prior felony convictions for violent felonies
and/or serious drug offenses must receive an enhanced punishment of a maximum
of life and a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e).
A “violent felony” is defined as:
(B) the term “violent felony” means 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; or
(ii) is burglary, arson, or extortion, involves use of explosives, or
otherwise involves conduct that presents a serious potential
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risk of physical injury to another.
18 U.S.C. § 924(e)(2)(B) (emphasis furnished).
The remaining definitions of a violent felony remain viable for determining
whether a defendant is an Armed Career Criminal. Johnson, 135 S.Ct. at 2563
(“We hold that imposing an increased sentence under the residual clause of the
Armed Career Criminal Act violates the Constitution’s guarantee of due process…
Today’s decision does not call into question application of the Act to the four
enumerated offenses, or the remainder of the Act’s definition of a violent felony.”)
(Emphasis furnished).
In Donnell v. United States, 826 F.3d 1014 (8th Cir. 2016), the defendant
applied for leave to file a successive petition based upon Johnson, seeking to
extend Johnson and Welch by urging that the residual clause of the career offender
provisions in the sentencing guidelines were unconstitutionally vague and that this
extension should be applied retroactively to cases on collateral review. Id. The
motion was denied and the Court concluded that “Donnell’s successive motion
seeks to assert a new right that has not been recognized by the Supreme Court or
made retroactive on collateral review.” Id.
Donnell forecloses the issue raised here by Petitioner, holding that
defendants are not entitled to apply Johnson retroactively to cases on collateral
review. In refusing to allow Donnell permission to file his successive 2255
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Petition, the Court noted that “[f]or Donnell’s successive motion to succeed,
therefore, the post-conviction court must announce a second new rule that extends
Johnson to the sentencing guidelines.” Id. at * 1. The Donnell Court declined to
find that this “second new rule” exists and denied Donnell permission to file his
successive § 2255 Petition.
Considering the Court’s holding in Donnell, Petitioner may not apply the
holding of Johnson in a retroactive fashion to attack his career offender sentence
on collateral review. He has not shown that there is a new rule of constitutional law
made retroactively applicable to cases on collateral review.
Conclusion
Based upon the foregoing analysis, Petitioner has failed to establish he is
entitled to a hearing and has failed to present any basis upon which the Court may
grant relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[a]
certificate of appealability may issue . . . only if the applicant has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
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Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that this action is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
Dated this 29th day of March, 2017.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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