Parks v. United States of America
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Petitioner Jose Parks's Motion for Relief from Judgment [ECF No. 15 ] is GRANTED. IT IS FURTHER ORDERED that the United States Marshals Service shall transport Petitioner Jose Parks, Inmate #2 3680-044, from the Federal Correctional Institute, State Route 716, Ashland, Kentucky, to the United States District Court, St. Louis, Missouri, for Re-Sentencing pursuant to this Order. Re-Sentencing Hearing will be held on September 18, 2014, at 11:00 a.m. IT IS FURTHER ORDERED that a certified copy of this Order be provided to the United States Marshals Service on this date. Signed by District Judge E. Richard Webber on August 12, 2014. (Certified copy forwarded to USMS this date.) (BRP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
UNITED STATES OF AMERICA,
No. 4:12CV01294 ERW
MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner Jose Parks’s Motion for Relief from
Judgment [ECF No. 15].
On August 11, 2006, Petitioner Jose Parks pled guilty to possession with intent to
distribute heroin in violation of 21 U.S.C. § 841(a)(1). At the sentencing hearing, the Court
found Petitioner was a career offender under United States Sentencing Guidelines § 4B1.1,
which increases a defendant’s offense level if he has two prior felony convictions for crimes of
violence or controlled substance offenses. The Court applied this enhancement, in part, on the
basis of a 1989 state conviction of escape from confinement. As a result, Petitioner’s total
offense level was 29 and his criminal history category was VI. The Court sentenced Petitioner to
a term of 151 months’ imprisonment, which was the bottom of the advisory range. Petitioner
appealed his sentence to the Eighth Circuit, arguing his conviction for escape was not a crime of
violence within the meaning of the Sentencing Guidelines. The Eighth Circuit affirmed.
Petitioner subsequently filed a writ of certiorari with the Supreme Court, which granted
his writ, vacated the judgment, and remanded to the Eighth Circuit for further consideration in
light of Chambers v. United States, 129 S. Ct. 687 (2009). In Chambers, the Supreme Court held
an “escape” conviction for failure to report to official detention is not a violent felony for
purposes of the Armed Career Criminal Act (ACCA), which imposes a mandatory minimum of
15 years’ imprisonment on certain defendants with three prior convictions of violent felonies.
The Eighth Circuit, in turn, remanded to this Court for resentencing, with instructions to analyze
Petitioner’s escape conviction under Chambers. On remand, this Court applied the modified
categorical approach, and rejected Petitioner’s argument his escape was a mere “walkaway”; the
Court found Petitioner’s escape conviction constituted a crime of violence. Therefore, in July
2009, Petitioner was again committed to the custody of the Bureau of Prisons for a term of 151
Petitioner appealed, arguing, inter alia, the Court erred in determining his escape
conviction was a crime of violence. On appeal, the Eighth Circuit also applied the modified
categorical approach, and found Petitioner’s escape conviction was not a mere “walkaway.”
The court affirmed, and the Supreme Court denied certiorari.
Proceeding pro se, Petitioner filed a Motion under 28 U.S.C. § 2255 on July 18, 2012. In
his Motion, Petitioner again argued his conviction of escape was not a crime of violence, and the
Court erred in applying the modified categorical approach.
On June 20, 2013, and while
Petitioner’s § 2255 Motion was pending, the Supreme Court decided Descamps v. United States,
133 S. Ct. 2276 (2013). Descamps held, where the statute of conviction is “indivisible,” the
modified categorical approach is inappropriate to determine whether an offense is a “violent”
felony for purposes of the ACCA. In the course of Petitioner’s habeas proceedings, the Court
failed to discuss Descamps, and denied the § 2255 Motion on July 31, 2013. Subsequently, the
Eighth Circuit decided United States v. Tucker, 740 F.3d 1177 (8th Cir. 2014), which applied
Descamps to Nebraska’s indivisible escape statute, and found such a conviction was not a violent
felony for purposes of the ACCA.
Petitioner now moves for relief from judgment under Federal Rule of Civil Procedure
60(b)(6). On August 11, 2014, the Court held a hearing, and the parties addressed this pending
Petitioner argues Descamps and Tucker, which addressed the ACCA, dictate his escape
conviction was not a crime of violence for purposes of § 4B1.1 of the Sentencing Guidelines. He
further argues there were two defects in the integrity of his habeas proceedings.
Duty to Warn of Successive Habeas Restrictions
First, Petitioner contends the previous habeas proceedings were defective, because the
Court did not sua sponte “warn the litigant of the restrictions on second or successive motions”
for habeas relief. The Court cannot agree. Although he does not expressly say so, Petitioner
appears to assert the Court has a duty to warn him he is waiving important rights by filing a §
2255 motion pro se. Petitioner does not cite any compelling authority for this proposition.
While he cites Morales v. United States, 304 F.3d 764 (8th Cir. 2002), for the assertion the Court
failed to “warn the litigant of the restrictions on second or successive [habeas] motions,” this is
not persuasive. In Morales, the petitioner filed a “Petition for Right of Review Pursuant to Title
5, United States Code, Section 702.” The district court, acting sua sponte, “reclassified” the
motion as a 28 U.S.C. § 2255 petition. Under these circumstances, the Eighth Circuit held,
When a district court intends to reclassify a pro se litigant’s pleading as a § 2255
motion, it must do two things. First, the court must warn the litigant of the
restrictions on second or successive motions, and of the one-year limitations
period, set forth in 28 U.S.C. § 2255. Second, the court must provide him an
opportunity either to consent to the reclassification or to withdraw his motion.
304 F.3d at 767. In this case, there was no reclassification; Petitioner simply filed a habeas
petition. Petitioner has failed to cite any authority suggesting the Court had a duty to advise him
of his rights. Thus, Petitioner’s first argument for relief fails.
Failure to Consider the Impact of Descamps on Petitioner’s Case
Second, Petitioner contends the Court erroneously failed to consider, or to ask the parties
to consider, the impact of Descamps on Petitioner’s case. Upon a finding of manifest error of
law in ruling by the Court, and substantial prejudice to Petitioner, under Federal Rule of Civil
Procedure 60(b)(6), Petitioner should have relief from judgment.
IT IS HEREBY ORDERED that Petitioner Jose Parks’s Motion for Relief from
Judgment [ECF No. 15] is GRANTED.
IT IS FURTHER ORDERED that the United States Marshals Service shall transport
Petitioner Jose Parks, Inmate #23680-044, from the Federal Correctional Institute, State Route
716, Ashland, Kentucky, to the United States District Court, St. Louis, Missouri, for ReSentencing pursuant to this Order. Re-Sentencing Hearing will be held on September 18, 2014,
at 11:00 a.m.
IT IS FURTHER ORDERED that a certified copy of this Order be provided to the
United States Marshals Service on this date.
Dated this 12th Day of August, 2014.
E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE
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