Pettigrew v. United States of America

Filing 21

OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the motion is DENIED in all respects. IT IS FURTHER ORDERED that the Court will not issue a certificate of appealability. A separate judgment is entered this same date. Signed by District Judge Henry Edward Autrey on 6/30/17. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

RODNEY PETTIGREW,

Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
) Case No. 4:14cv01085HEA
)
)
)
)

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Petitioner’s amended 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 August 16, 2011, Petitioner entered a plea of guilty to the offense of
Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). A
Presentence Investigation Report was prepared and provided to the court.

Petitioner appeared for sentencing on February 3, 2012 for sentencing. Petitioner
was found to be an Armed Career Criminal under 18 U. S. C.§ 924(e). Petitioner
was sentenced to a within-Guidelines term of imprisonment of 180 months.
The Presentence Investigation Report found Petitioner to be an Armed Career
Criminal under U.S.S.G. § 4B1.4(b)(3)(B), resulting in a Total Offense Level of
33. Allowing for a three-level reduction for acceptance of responsibility, the PSR
calculated Petitioner’s Total Offense Level to be 30. The Criminal History
Category was IV. As an Armed Career Criminal this resulted in a sentencing range
was 135 to 168 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). His suggestion is
that Johnson should be applied retroactively to his case to reduce his sentence.
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
vague, as it

violates the Due Process Clause because the residual clause is

impermissibly vague on its face. Johnson, 135 S.Ct. at 2556. The Supreme Court
has since determined that Johnson announced a new substantive rule of
2

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.
A Career Offender is determined as follows:
(a) A defendant is a career offender if (1) the defendant was at
least eighteen years old at the time the defendant committed the
instant offense of conviction; (2) the instant offense of conviction
is a felony that either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.
U.S.S.G. § 4B1.1(a).
A “crime of violence” is defined in the Guidelines as follows:
(a) the term “crime of violence” means any offense under federal
or state law, 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; or
(2) is burglary of a dwelling, arson, or extortion, involves use of
explosives,
or otherwise involves conduct that presents a serious potential risk of
physical injury to another.
U.S.S.G. § 4B1.2(a) (emphasis furnished).
The Supreme Court explicitly stated that Johnson “does not call into
question application of the [ACCA] to *** the remainder of the Act’s definition of
3

a violent felony,” including a felony offense that “has as an element the use,
attempted use, or threatened use of physical force against the person of another,”
18 U.S.C. § 924(e)(2)(B)(i), and a felony offense that “is burglary, arson, or
extortion, [or] involves use of explosives,” 18 U.S.C. § 924(e)(2)(B)(ii).” Johnson,
135 S.Ct. at 2563.
Petitioner has three qualifying predicate offenses of relevant significance
here. They are Robbery First Degree, Robbery First Degree, Docket No. 110894,
Robbery First Degree, Docket No. 2105R-02583-01, Count 3, and Attempted
Robbery First Degree, Docket No. 2105R-02583-01, Count 1.

In Missouri,

Robbery First Degree is perpetrated when a person … forcibly steals property and
in the course thereof, he, or another participant in the crime, (1) causes serious
physical injury to any person; or (2) is armed with a deadly weapon; or (3) uses or
threatens the immediate use of a dangerous instrument against any person; or (4)
displays or threatens the use of what appears to be a deadly weapon or dangerous
instrument. Mo.Rev.Stat. § 569.020. A person “forcibly steals” when he “uses or
threatens the immediate use of physical force upon the person of another.…”
Mo.Rev.Stat. § 569.010(1). Under the ruling of Bevly v. United States, 2016 WL
6893815 (Nov. 23, 2016, E.D. Mo) Robbery First Degree falls within the ambit of
the elements clause of the ACCA. Therefore, Petitioner’s convicted is not impacted
in any manner by Johnson.
4

Petitioner’s attempted first-degree robbery conviction is also a violent
felony. Section 924(e) itself defines violent felony as a crime that has “as an
element the use, attempted use, or threatened use of physical force against the
person of another.” See A.C. Jackson v. United States, 2015WL6750807 (Nov. 25,
2015, E.D. Mo). As such, Petitioner is still an armed career criminal and
experiences no redemption under Johnson.
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 any relief. His Amended Motion is denied.

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
5

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 the motion is DENIED in all respects.
IT IS FURTHER ORDERED that the Court will not issue a certificate of
appealability.
A separate judgment is entered this same date.
Dated this 30th day of June, 2017.

HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

6