Harris v. USA
Filing
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OPINION, MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. Nos. 1 ], is DENIED.IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of afederal constitutional right.A separate judgment is entered this same date.. Signed by District Judge Henry Edward Autrey on 04/02/2020. (AAT)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ERIC HARRIS,
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Petitioner,
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v.
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Case No. 4:16CV600 HEA
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UNITED STATES OF AMERICA,
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Respondent,
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OPINION, MEMORANDUM AND ORDER
This matter is before the Court Petitioner’s Motion to Vacate, Set Aside or
Correct Sentence, [Doc. No 1]. The Eighth Circuit Court of Appeals allowed
Petitioner to proceed on this successive habeas case, based on Johnson v. United
States, 135 S.Ct. 2551 (2015). On November 14, 2018, the Court entered a stay in
this matter pending a decision by the Eighth Circuit Court of Appeals in United
States v. Hosea Swopes ,No. 16-1797 (8th Cir. 2018). The Appellate Court has
issued its opinion in Swopes. See United States v. Swopes, 886 F.3d 668, 670-71
(8th Cir. 2018) (en banc), cert. denied, 139 S. Ct. 1258 (Feb. 25, 2019), therefore,
the stay in this matter is lifted. For the reasons set forth below, the Motion will be
denied.
Procedural Background
A federal grand jury sitting in St. Louis returned a four-count indictment
against Petitioner on January 14, 2004, charging him with: (1) possession with
intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §
841(a)(1) (Count I); (2) possession with intent to distribute heroin in violation of
21 U.S.C. § 841(a)(1) (Count II); (3) possession of a firearm in furtherance of a
drug trafficking crime in violation of 18 U.S.C. § 924(c); and (4) being a felon in
possession of a firearm in violation of Title 18 U.S.C. § 922(g) (Count IV). On
April 3, 2013, Petitioner elected to enter a plea of guilty, pursuant to a plea
agreement, as to Count IV in exchange for the dismissal of the remaining counts.
On July 1, 2013, this court found that Petitioner was an Armed Career
Criminal pursuant to 18 U.S.C. § 924(e) and sentenced him to a mandatory
minimum term of imprisonment of 180 months. A two-year term of supervised
release was also imposed. Counts I, II and III were dismissed on motion by the
United States.
No appeal of the conviction or sentence to the Eighth Circuit Court of
Appeals was taken by Petitioner. The motion for post-conviction relief pursuant to
28 U.S.C. § 2255 was filed on July 28, 2014.
The Court denied the single claim for relief raised by Petitioner under
principles and requirements set out in Descamps v. United States, 133 S.Ct. 2276
(2013).
Petitioner seeks relief based on the Supreme Court’s decision in Johnson v.
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United States, 135 S. Ct. 2551 (2015), again attacking the classification of his
Missouri burglary convictions as predicate ACCA violent felonies.
Discussion
Petitioner has numerous violent felonies, including: (1) burglary second
degree of a dwelling place and building; (2) burglary second degree of a dwelling;
(3) illegal sale of heroin; (4) robbery second degree; and (5) robbery second
degree. Neither party disputed that the illegal sale of heroin conviction qualified as
an ACC predicate.
While the Missouri burglary second degree convictions no longer qualify as
predicate generic robberies for purposes of the enumerated clause of the Armed
Career Criminal Act, United States v. Naylor, 887 F.3d 397, 399 (8th Cir. 2018)
(en banc)), Petitioner’s robbery second degree convictions continue to qualify as
ACCA predicates. In Swopes, 886 F.3d at 670-71, the Eighth Circuit, sitting en
banc, held that a Missouri second degree robbery conviction is a “violent felony”
under the force clause, 18 U.S.C. § 924(c)(2)(B)(i). Id.; United States v. Giles, 776
F. App'x 920 (8th Cir. 2019).
Since Petitioner has two prior convictions for Missouri robbery second
degree, which qualify as violent felonies; and one prior conviction for illegal sale
of heroin, a serious drug offense, he has three predicate ACCA convictions.
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In his first Section 2255 Motion, Petitioner argued that the robbery
convictions cannot be used as predicate for the ACCA finding because he was not
given an opportunity to contest the prior convictions with counsel, at sentencing,
and therefore the original sentencing violated due process.
Petitioner’s claims were found to be without merit in that case, See Harris v.
United States, Cause Number 4:14CV13 23of c. The Revised Final Pre-Sentence
Investigation Report, which was issued prior to the sentencing in this case,
provided:
Chapter Four Enhancement: The offense of conviction is a violation of 18
U.S.C. § 922(g), and the defendant has at least three prior convictions for a violent
felony or serious drug offense, or both, which were committed on different
occasions. (Burglary Second Degree, Case No. 74-1686; Burglary Second Degree,
Case No. 74-1687; Burglary Second Degree, Case No. 74-1688; Illegal Sale of
Heroin, Case No. 78-0513; Robbery Second Degree, Case No. CR189-453FX; and
Robbery Second Degree, Case No. 96CR004018). Therefore, the defendant is an
Armed Career Criminal and subject to an enhanced sentence under the provisions
of 18 U.S.C. § 924(e). The offense level is 34. USSG § 4B1.4.
Petitioner does not challenge now and did not challenge at the sentencing
hearing on July 1, 2013, the existence of the robbery-second and controlled
substance convictions or whether they qualify as ACCA predicates. Sentencing
Transcript (“S. Tr.”), p. 3. Swopes, 886 F.3d at 671 (Missouri second-degree
robbery statute requires proof that a defendant used physical force or threatened
the immediate use of physical force, therefore, a Missouri conviction for second4
degree robbery qualifies as a violent felony under the ACCA); United States v.
Parker, 929 F.3d 940 (8th Cir. 2019); United States v. Jones, 934 F.3d 842 (8th
Cir. 2019) (prior Missouri conviction for “Illegal Sale of a Controlled Substance”
under Mo.Rev.Stat. § 195.211 is a “serious drug offense” under the ACCA);
United States v. Hill, 912 F.3d 1135, 1136-37 (8th Cir. 2019) (an offer to sell in
Missouri is an offense “involving” the distribution of a controlled substance under
§ 924(e)(2)(A)(ii)).
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. Petitioner’s Motion to Set Aside or Correct Sentence pursuant to 28
U.S.C. § 2255 is therefore denied.
CERTIFICATE OF APPEALABILITY
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 the Motion to Vacate, Set aside or
Correct Sentence, [Doc. Nos. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 2nd day of April, 2020.
________________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
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