Loper v. United States of America

Filing 30

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Petitioner LeRonald Lopers Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody 1 is DENIED. Petitioner's Motion is DISM ISSED, with prejudice. IT IS FURTHER ORDERED that Petitioner's Motion on Court Order for Production of Written Documentations under the Control of the Office of the U.S. Federal Public Defender for the Eastern District of Missouri, Eastern Divis ion 21 is DENIED. IT IS FURTHER ORDERED that Petitioner's Motion for Relief on Second Supplemental Claim under § 2255 25 is DENIED. IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability as to any claim raised in Petitioner's §2255 Motion. Signed by District Judge E. Richard Webber on 2/16/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LERONALD LOPER,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

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Case No. 4:14CV01788 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on Petitioner LeRonald Loper’s Motion under 28
U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1],
Petitioner’s Motion on Court Order for Production of Written Documentations under the Control
of the Office of the U.S. Federal Public Defender for the Eastern District of Missouri, Eastern
Division [21], and Petitioner’s Motion for Relief on Second Supplemental Claim under § 2255
[25].
I.

BACKGROUND
On January 12, 2012, Petitioner LeRonald Loper (“Petitioner”) was indicted for attempt

to commit an offense against the United States of America, to obstruct, delay, and affect
commerce and the movement of any article or commodity in commerce by robbery, and by
committing and threatening physical violence to any person in furtherance of a plan or purpose
in violation of 18 U.S.C. § 1951 (Count I), knowingly soliciting, commanding, inducing, or
otherwise endeavoring to persuade one or more persons to engage in conduct constituting a
felony that has as an element the use, attempted use, and threatened use of physical force against

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property and against the person of another in violation of the laws of the United States, in
violation of 18 U.S.C. § 373 (Count II), and knowingly possessing a firearm having been
convicted previously of one or more felony crimes in violation of 18 U.S.C. § 922(g)(1) (Count
III).1 On July 9, 2012, Petitioner pled guilty to Counts I and III. Count II was dismissed. On
October 11, 2012, Petitioner was sentenced to 210 months imprisonment on each count, to be
served concurrently, and a two-year term of supervised release.
At sentencing, Petitioner was found to be a career offender under United States
Sentencing Guideline §4B1.1, because of his prior felony convictions including Armed Robbery,
Bank Robbery with a Firearm, and Bank Robbery. Petitioner was also found to be an Armed
Career Criminal under 18 U.S.C. § 924(e)(1), because of his prior violent felony convictions
including Assault with Intent to Rob with Malice, Robbery First Degree with a Dangerous and
Deadly Weapon, Assault with Intent to Kill, and the previously listed convictions which
established his career offender status.
Petitioner filed a direct appeal with the Eighth Circuit Court of Appeals and the district
court’s judgment was affirmed on May 31, 2013. Petitioner did not file a writ of certiorari with
the United States Supreme Court. On October 20, 2014, Petitioner filed the pending Motion to
Vacate.
II.

STANDARD
A federal prisoner who seeks relief under 28 U.S.C. ' 2255 on grounds “the sentence was

imposed in violation of the Constitution or laws of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum
authorized by law, or is otherwise subject to collateral attack, may move the court which
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Petitioner’s criminal case is United States v. LeRonald Loper, 4:12CR00007 CEJ.

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imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. ' 2255(a). In order
to obtain relief under § 2255, the petitioner must establish a constitutional or federal statutory
violation constituting “a fundamental defect which inherently results in a complete miscarriage
of justice.” United States v. Gomez, 326 F.3d 971, 974 (8th Cir. 2003) (quoting United States v.
Boone, 869 F.2d 1089, 1091 n.4 (8th Cir. 1989)).
Claims brought under § 2255 may be limited by procedural default. A petitioner “cannot
raise a non-constitutional or non-jurisdictional issue in a § 2255 motion if the issue could have
been raised on direct appeal but was not.” Anderson v. United States, 25 F.3d 704, 706 (8th Cir.
1994). Claims, including those concerning constitutional and jurisdictional issues, unraised on
direct appeal cannot subsequently be raised in a ' 2255 motion unless the petitioner establishes
“(1) cause for default and actual prejudice or (2) actual innocence.” United States v. Moss, 252
F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614, 621-22 (1998)).
However, ineffective assistance of counsel claims may be raised for the first time in a §
2255 motion even if they could have been raised on direct appeal. Massaro v. United States, 538
U.S. 500, 504 (2003). This exception is in place to prevent petitioners from being forced “to raise
the issue before there has been an opportunity fully to develop the factual predicate for the
claim.” Id. Additionally, a petitioner=s attorney may serve as counsel for both the trial and
appellate case, and it is unlikely that the attorney would raise a claim of his own ineffective
assistance on appeal. See United States v. Rashad, 331 F.3d 908, 911 (D.C. Cir. 2003).
To excuse procedural default, however, a petitioner, raising a constitutional claim for the
first time in a § 2255 proceeding, still must demonstrate cause and prejudice. Anderson, 25 F. 3d
at 706. Ordinarily, issues that were raised and decided on direct appeal cannot be relitigated in a

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§ 2255 motion. United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001). Exceptions to this rule
are recognized only upon production of convincing new evidence of actual innocence, and are
available only in the extraordinary case. Id.
If the petitioner=s claims are not procedurally barred, the Court must hold an evidentiary
hearing to consider the claims “[u]nless the motion and files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28 U.S.C. ' 2255(b); see also Shaw v. United
States, 24 F.3d 1040, 1043 (8th Cir. 1994). A petitioner is entitled to an evidentiary hearing
“when the facts alleged, if true, would entitle [the petitioner] to relief.” Payne v. United States,
78 F.3d 343, 347 (8th Cir. 1996) (citation omitted). However, a court may dismiss a claim
without a hearing “if the claim is inadequate on its face or if the record affirmatively refutes the
factual assertions upon which it is based.” Shaw, 24 F.3d at 1043.
III.

DISCUSSION
In his motion, Petitioner asserts four claims including unreasonable search and seizure in

violation of the Fourth Amendment of the United States Constitution, denial of right not to be
compelled to testify against himself in violation of the Fifth Amendment, ineffective assistance
of counsel in violation of the Sixth Amendment, and deprivation of liberty without due process
in violation of the Fifth Amendment. In response, the Government argues the motion is untimely,
Petitioner’s first, second, and fourth claims are procedurally defaulted, and his counsel was not
ineffective as alleged in his third claim.
Petitioner asserts his motion is timely and was filed within one year of the district court’s
denial of his Motion for an Official Hearing Nunc Pro Tunc on June 25, 2014, in his criminal

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case. The Government argues the deadline for the filing of his motion expired on August 29,
2013.
A petitioner has one year to file a motion to vacate pursuant to 28 U.S.C. § 2255. See 28
U.S.C. §2255(f). The one year limitation runs from the date the conviction becomes final. 28
U.S.C. § 2255(f)(1). For petitioners who do not seek review with the United States Supreme
Court, the one-year limitation starts to run when the time for seeking review with the Supreme
Court expires. Clay v. United States, 537 U.S. 522, 532 (2003). The time for filing a writ of
certiorari with the Supreme Court expires 90 days after the entry of judgment of the appellate
court. Sup. Ct. R. 13(1).
In this case, Petitioner was convicted on October 11, 2012, when his criminal judgment
was entered. His appeal was denied on May 31, 2013. He did not file a writ of certiorari;
therefore, his conviction became final on August 29, 2013, ninety days after the Eighth Circuit’s
opinion denying his appeal. Petitioner’s motion to vacate was not filed until October 20, 2014;
this is more than one year after his conviction became final. Petitioner has not asserted an
argument for equitable tolling. Therefore, Petitioner’s motion is untimely and must be dismissed.
V.

MOTION FOR PRODUCTION OF WRITTEN DOCUMENTS
In this motion, Petitioner asks the Court to issue an order to the Federal Public Defender

to make the Assistant United States Public Defender available to appear along with her notes and
documentation from Petitioner’s case to give testimony under oath about the claims asserted in
his Motion to Vacate. He asserts his counsel should have had the prosecutor disclose the specific
prior convictions it was intending to introduce. Because Petitioner’s Motion to Vacate is

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untimely and must be dismissed, this motion for an Assistant Federal Public Defender to appear
in regards to his untimely claims must be denied, as moot.
VI.

MOTION FOR RELIEF ON SECOND SUPPLEMENTAL CLAIM
In this motion, Petitioner challenges his status as a career offender and Armed Career

Criminal and asserts he is entitled to relief pursuant to the Supreme Court’s decision in Johnson
v. United States, 135 S. Ct. 2551 (2015). This motion will be denied because Petitioner does not
qualify for relief under Johnson. To qualify as an Armed Career Criminal, a defendant must have
three prior violent felonies or serious drug offenses. The Armed Career Criminal Act (“ACCA”)
defines a violent felony as a crime punishable by imprisonment for more than one year 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)(1)(B)(i).2 Petitioner’s prior felonies qualify as violent felonies
under this definition.
In a 1968 case, Petitioner was convicted of Assault with Intent to Rob with Malice, in
violation of Missouri Revised Statute § 559.180. This statute states as follows:
Every person who shall, on purpose and of malice aforethought, shoot at or stab
another, or assault or beat another with a deadly weapon, or by any other means
or force likely to produce death or great bodily harm with intent to kill, maim,
ravish or rob such person, . . . shall be punished by imprisonment in the
penitentiary not less than two years.
Mo. Rev. Stat. § 559.180 (1968). This statute clearly requires as an element the use, attempted
use, or threatened use of physical force against the person of another. To be convicted, a person
must either (1) shoot at or stab another, (2) assault or beat another with a deadly weapon, or (3)

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The statute also defines additional violent felonies including burglary, arson etc. but these definitions are not
applicable to any of Petitioner’s prior convictions. See 18 U.S.C. § 924(e)(1)(B)(ii).

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use other means or force likely to produce death or great bodily harm to a person. This
conviction qualifies as a violent felony for purposes of the ACCA.
In a 1969 case, Petitioner was convicted of Robbery in the First Degree with a Dangerous
or Deadly Weapon, in violation of Missouri Revised Statute § 560.120. This statute states:
Every person who shall be convicted of feloniously taking the property of another
form his person, or in his presence and against his will, by violence to his person,
or by putting him in fear of some immediate injury to his person . . . shall be
adjudged guilty of robbery in the first degree.
Mo. Rev. Stat. § 560.120.3 In United States v. Kirkland, the Eighth Circuit determined the 1974
version of this statute, with the same exact wording as the version at issue here, contained as an
element the “use, attempted use, or threatened use of physical force against the person of
another.” 450 F.3d 804, 807 (8th Cir. 2006). Therefore, Petitioner’s prior conviction for Robbery
in the First Degree with a Dangerous or Deadly Weapon qualifies as a predicate offense under
the ACCA.
In a 1981 case, Petitioner was convicted of Armed Robbery, in violation of Illinois
Criminal Code 18-2 (1981). This statute states, “A person commits armed robbery when he or
she violates Section 18-1 while he or she carries on or about his or her person, or is otherwise
armed with a dangerous weapon.” Ill. Rev. Stat. ch. 38, ¶ 18-2 (1970). Section 18-1 states, “A
person commits robbery when he takes property from the person or presence of another by the
use of force or by threatening the imminent use of force.” Ill. Rev. Stat. ch. 38, ¶ 18-1 (1970).
The Seventh Circuit has previously held an Illinois robbery conviction from 1975, with the same
language as the statute at issue here, contained as an element the use, attempted use, or

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“Robbery in the first degree comprehends an act committed with or without a dangerous and deadly weapon.”
Keeny v. State, 461 S.W.2d 731, 733 (Mo. 1971). The element of “with a dangerous and deadly weapon” goes
merely to the penalty. Id.

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threatened use of physical force against the person of another, qualifying it as a violent felony in
the ACCA. United States v. Dickerson, 901 F.2d 579, 584 (7th Cir. 1990). Therefore, Petitioner’s
Illinois Armed Robbery conviction also qualifies as a predicate offense under the ACCA.4
Petitioner has three prior violent felonies that qualify under the ACCA as predicate offenses.
Thus, he remains an Armed Career Criminal and is not entitled to relief under Johnson. The
Court will deny this motion.
VII.

CERTIFICATE OF APPEALABILITY
The Court finds Petitioner has not made a substantial showing of the denial of a

constitutional right, as is required before a certificate of appealability can issue. See Cox v.
Norris, 133 F.3d 565, 569 (8th Cir. 1997) (explaining that a Asubstantial showing@ is a showing
the Aissues are debatable among reasonable jurists, a court could resolve the issues differently, or
the issues deserve further proceedings@). Therefore, the Court shall not issue a certificate of
appealability as to any claims raised in Petitioner=s § 2255 Motion.
Accordingly,
IT IS HEREBY ORDERED that Petitioner LeRonald Loper’s Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [1] is
DENIED. Petitioner=s Motion is DISMISSED, with prejudice.
IT IS FURTHER ORDERED that Petitioner’s Motion on Court Order for Production of
Written Documentations under the Control of the Office of the U.S. Federal Public Defender for
the Eastern District of Missouri, Eastern Division [21] is DENIED.

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In addition to these three convictions, Petitioner also has a conviction for Bank Robbery with a Firearm in
Arkansas that would qualify as a predicate offense.

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IT IS FURTHER ORDERED that Petitioner’s Motion for Relief on Second
Supplemental Claim under § 2255 [25] is DENIED.
IT IS FURTHER ORDERED that the Court shall not issue a certificate of appealability
as to any claim raised in Petitioner=s ' 2255 Motion.
So Ordered this 16th day of February, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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