Valentine v. USA

Filing 33

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that Petitioner Tyrone Valentine's Pro Se Motion to Vacate, Set Aside, or Correct Sentence 1 is DENIED, as to Grounds One, Two, Three, and Four. IT IS FURTHER ORDERED that Petitio ner Tyrone Valentine's Amended Motion to Vacate Conviction and Correct Sentence under 28 U.S.C. § 2255 13 is DENIED, as to Grounds One, Two, Three, and Four. IT IS FURTHER ORDERED that Petitioner Tyrone Valentines Second Amended Motion to Vacate Conviction and Correct Sentence under 28 U.S.C. § 2255 22 is DENIED, as to Grounds One, Two, Three, and Four. IT IS FURTHER ORDERED that an evidentiary hearing will be held on November 19, 2018, at 9:00 a.m. as to Ground Five of Petitioners Petitions. Signed by District Judge E. Richard Webber on 9/7/2018. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TYRONE VALENTINE,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.

)
)
)
)
)
)
)
)
)

Case No. 4:17CV02475 ERW

MEMORANDUM AND ORDER
This matter is before the Court on Petitioner Tyrone Valentine’s Pro Se Motion to
Vacate, Set Aside, or Correct Sentence [1], Amended Motion to Vacate Conviction and Correct
Sentence under 28 U.S.C. § 2255 [13] and Second Amended Motion to Vacate Conviction and
Correct Sentence under 28 U.S.C. § 2255 [22].
I.

BACKGROUND
On April 9, 2014, Petitioner Tyrone Valentine was indicted for being a felon in

possession of ammunition in violation of 18 U.S.C. § 922(g)(1). On January 7, 2015, Petitioner
pled guilty to the charge in the indictment. He was sentenced on June 17, 2015, to 180-months
imprisonment and three years of supervised release.
To determine Petitioner’s sentence, the Court used the 2014 United States Sentencing
Guidelines Manual. Petitioner’s base offense level was calculated to be 22 under §
2K2.1(a)(1)(2), because Petitioner committed the offense after sustaining one prior felony
conviction of a controlled substance offense and he used or possessed ammunition in connection
with the commission or attempted commission of another offense. He received a four-level
increase because the victim sustained life-threatening bodily injury. Petitioner received a Chapter
1

Four enhancement to offense level 34, because he was found to be an Armed Career Criminal.
Three levels were subtracted for acceptance of responsibility. His total offense level was 31.
Petitioner’s criminal history category was III, but was increased to VI because he was found to
be an Armed Career Criminal and used and possessed the ammunition in connection with a
crime of violence. The guideline range was 188 to 235 months. He was sentenced to 180-months
imprisonment and a three-year term of supervised release.
After the United States Supreme Court decided Johnson v. United States, 135 S. Ct. 2251
(2015), Petitioner filed the present pro se motion to correct his sentence asserting he is no longer
an Armed Career Criminal in light of the Supreme Court’s decision in Johnson. The Federal
Public Defender’s Office was appointed to represent Petitioner and the Assistant Public Defender
filed an amended motion to vacate, and a second amended motion to vacate which the Court will
now address.
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
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)).

2

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)).
Exceptions to this rule are recognized only upon production of convincing new evidence of
actual innocence, and are available only in the extraordinary case. United States v. Wiley, 245
F.3d 750, 752 (8th Cir. 2001). 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).
If the petitioner’s claims are not procedurally barred, the Court must hold an evidentiary
hearing to consider the claims “when the facts alleged, if true, would entitle [the petitioner] to
relief.” 28 U.S.C. § 2255(b); see also Shaw v. United States, 24 F.3d 1040, 1043 (8th Cir. 1994);
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.

ANALYSIS
Petitioner raises five grounds for relief in his Second Amended Motion to Vacate

(“Motion”). First, he asserts he is not an Armed Career Criminal, because the Missouri statute for
Assault in the First Degree does not require the use of violent force in every instance listed in the
statute. Second, Petitioner argues his 1984 Missouri Assault in the First Degree convictions are
3

invalid, because the Circuit Court of St. Louis entered them without a valid factual basis. Third,
he contends his counsel was ineffective on direct appeal by failing to argue for relief under
Johnson. Fourth, he asserts his counsel was ineffective prior to his change of plea hearing,
because he failed to seek dismissal of the indictment, which did not include any allegations of an
essential element of the offense. Finally, he argues his counsel was ineffective in failing to
timely inform Petitioner of the government’s plea offer and to describe the admissions the plea
agreement included, making his guilty plea uninformed and involuntary in violation of the
Constitution.
A.

Ground 1 – Challenge pursuant to Johnson

The Armed Career Criminal Act (“ACCA”) establishes a minimum term of imprisonment
of fifteen years for individuals convicted of certain crimes who have sustained three prior
convictions for violent felonies or serious drug offenses. 18 U.S.C. § 924. The ACCA defines
“violent felony” as:
. . . any crime punishable by imprisonment for a term exceeding one year, . . . that
(i) has an element the use, attempted use, or threatened use of physical force
against the person of another, or (ii) is burglary, arson, extortion, involves use of
explosives, or otherwise involves conduct that presents a serious potential risk of
physical injury to another . . .
18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court determined the residual clause in the
definition of “violent felony” in the ACCA was unconstitutionally vague. 135 S. Ct. 2551. The
second half of (ii), “or otherwise involves conduct that presents a serious potential risk of
physical injury to another” is the “residual clause” which the Supreme Court found to be
unconstitutional. Subsequently, in United States v. Welch, the Supreme Court ruled Johnson was
a new substantive rule, retroactive on collateral review. 136 S. Ct. 1257 (2016).

4

Petitioner was found to be an Armed Career Criminal, because he has a prior felony
conviction for Possession with Intent to Distribute Heroin, and two prior felony convictions for
Assault in the First Degree in Missouri. The issue before the Court is whether his prior
convictions for Assault in the First Degree qualify as “violent felonies.” The Court will analyze
whether Petitioner’s convictions are predicate offenses under the first clause, the elements or
use-of-force clause, only, because they clearly are not one of the enumerated offenses listed in
(ii) of the ACCA.
The Court applies the categorical approach to determine if a conviction qualifies as a
crime of violence when the statute underlying the conviction is indivisible. United States v. Bell,
840 F.3d 963, 964 (8th Cir. 2016) (citing United States v. Gordon, 557 F.3d 623, 625 (8th Cir.
2009)). The categorical approach focuses on the generic elements of the offense, not on the
specific underlying facts of the conviction. Id. Under the categorical approach, a court “must
consider the lowest level of conduct that may support a conviction under the statute.” Id. at 5.
When a statute is divisible, or has multiple alternative elements, some of which qualify as violent
felonies and some of which do not, the Court applies the modified categorical approach, which
allows a sentencing court to look at a limited class of documents, the indictment, jury
instructions, or plea agreement and colloquy, to determine what crime, with what elements, of
which a defendant was convicted. Mathis v. United States, 136 S. Ct. 2243, 2249 (2016).
The statute at issue here, Missouri Revised Statute § 565.050 (1978), is clearly divisible
and so the modified categorical approach must be applied. The statute permits three different
ways a person can commit the crime of Assault in the First Degree:
1.
(1)
(2)

A person commits the crime of assault in the first degree if:
He knowingly causes serious physical injury to another person; or
He attempts to kill or to cause serious physical injury to another person; or
5

(3)

2.

Under circumstances manifesting extreme indifference to the value of
human life he recklessly engages in conduct which creates a grave risk of
death to another person and thereby causes serious physical injury to
another person.
Assault in the first degree is a class B felony unless committed by means
of a deadly weapon or dangerous instrument in which case it is a class A
felony.

Mo. Rev. Stat. § 565.050 (1978).1 Petitioner was convicted under § 565.050(2), because his
indictment states he “committed the class A felony of assault in the first degree . . . in that the
defendant attempted to kill or to cause serious physical injury . . .”
To show the statute cannot qualify as a predicate offense, Petitioner asserts the statute can
be satisfied by attempting to cause serious physical injury through non-violent conduct. He cites
to other circuits who have decided causing serious physical injury does not necessarily require
the use of force. See United States v. Garcia, 470 F.3d 1143, 1147 (5th Cir. 2006); United States
v. Torres-Miguel, 701 F.3d 165, 168-69 (4th Cir. 2012) abrogated on other grounds by United
States v. Middleton, 883 F.3d 485, 491 (4th Cir. 2018). However, the Eighth Circuit has rejected
this theory. It has concluded it is not possible to inflict serious physical injury without the use of
force. See United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017); United States v. Thomas,
838 F.3d 926, 930 (8th Cir. 2016). “Hypothetical scenarios involving no physical conduct by the
perpetrator (luring a victim to drink poison or infecting a victim with a disease) do not avoid
coverage under [the ACCA].” Winston, 845 F.3d at 878. Therefore, although § 565.050(2) does
not explicitely require the use of force, because it requires a person to attempt to kill or cause
serious physical injury to another person, the statute qualifies as a “violent felony” for the
attempted use of force against another. Petitioner’s prior convictions for Assault in the First

1

This statute was amended in 1983 but did not take effect until after Petitioner’s indictment in 1984.
6

Degree qualify as predicate offenses under the ACCA and Petitioner remains an Armed Career
Criminal. His petition on this ground will be denied.
B.

Ground Two – Invalid Convictions

In his second ground for habeas relief, Petitioner asserts his Assault in the First Degree
convictions are invalid because the Circuit Court of St. Louis entered them without a valid
factual basis. He states he is pursuing habeas corpus relief in state court on this issue and would
like a stay in this Court until the state case is resolved. According to Petitioner, the factual basis
for Count I of his conviction in 1984 does not support a conviction for a Class A felony of First
Degree Assault, because no one suffered serious physical injury.
Petitioner cannot, in federal court, collaterally attack his state court convictions used for
federal sentencing purposes. Custis v. United States, 511 U.S. 485, 490-91 (1994). Further, the
appropriate time to challenge his federal conviction, based on the vacateur of his state
convictions, is after the order vacating the state court convictions has been filed. United States v.
Morrison, Nos. 1:12-cr-17-4, 1:14-CV-111, 2015 WL 540786 at *2 (D. N.D. Feb. 10, 2015)
(citing Johnson v. United States, 544 U.S. 295, 298 (2005)). Petitioner’s convictions were used
for sentencing purposes and have not been determined to be invalid by a state court. Therefore,
the Court will not grant relief on this ground.
The Court previously granted Petitioner a 60-day stay to pursue his state post-conviction
remedies. The Circuit Court of St. Louis denied Petitioner’s motion. This Court will not issue a
further stay while Petitioner appeals that decision.
C.

Ground Three – Ineffective Assistance of Counsel

7

In his third ground for relief, Petitioner argues his counsel on direct appeal was
ineffective for failing to argue his Assault in the First Degree convictions were not violent
felonies under the ACCA.
To establish ineffective assistance of counsel, Petitioner must show his attorney’s
performance was deficient and outside the range of reasonable professional assistance and he
suffered prejudice, meaning there is a reasonable probability the result of the proceeding would
have been different. Hyles v. United States, 754 F.3d 530, 533 (8th Cir. 2014). Petitioner cannot
establish his counsel was ineffective. The Court has rejected Petitioner’s claims his prior
convictions were not violent felonies under the ACCA. Therefore, his counsel is not ineffective
for failing to raise a meritless argument. Dyer v. United States, 23 F.3d 1424, 1426 (8th Cir.
1994); Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994) (“Counsel’s failure to
advance a meritless argument cannot constitute ineffective assistance.”). The motion will be
denied on this ground.
D.

Ground Four – Ineffective Assistance of Counsel

In his fourth ground for relief, Petitioner asserts his counsel was ineffective for failing to
seek dismissal of his indictment, which, he alleges, did not include an essential element of the
crime. According to Petitioner, his indictment did not allege specific intent; it alleged he
knowingly possessed ammunition, but not he intentionally engaged in the conduct of possessing
ammunition.
Petitioner’s indictment stated:
On or about January 8, 2013, in the City of St. Louis, within the Eastern District
of Missouri, TYRONE VALENTINE, the defendant herein, having been
convicted previously of a felony crime punishable by a term of imprisonment
exceeding one year under the laws of the State of Missouri and of the United
States of America, did knowingly possess various rounds of 9 mm ammunition,
8

all of which had traveled in interstate or foreign commerce during or prior to
being in defendant’s possession In violation of Title 18, United States Code,
Section 922(g)(1).
This language includes all of the elements of the offense charged. The Eighth Circuit has stated:
To convict a defendant of being a felon in possession of ammunition, the
government must prove beyond a reasonable doubt that (1) the defendant had
previously been convicted of a crime punishable by a term of imprisonment
exceeding one year, (2) the defendant knowingly possessed ammunition, and (3)
the ammunition had traveled in or affected interstate commerce.
United States v. Cook, 603 F.3d 434, 437 (8th Cir. 2010). Petitioner’s counsel is not ineffective
for failing to seek dismissal of his indictment, because his indictment included all of the essential
elements of the offense and there was no basis for its dismissal. This claim will be denied.
E.

Ground Five – Ineffective Assistance of Counsel

In his fifth, and final, ground for relief, Petitioner argues his counsel was ineffective for
failing to timely inform him of the Government’s plea offer and to describe the admissions the
plea agreement included, causing the waiver of his Fifth and Sixth Amendment rights to be
uninformed and involuntary. According to Petitioner, his counsel “surprised” him at the
Courthouse with the plea agreement on January 7, 2015, the date of his change of plea hearing,
four days after his son had been murdered. Petitioner states his counsel only visited him once
before at the Ste. Genevieve County Jail on October 14, 2014, when Petitioner stated he desired
to go to trial. Finally, Petitioner asserts his counsel did not explain the specific admissions the
plea bargain required, specifically that he was present at the shooting of his cousin who sustained
permanent or life threatening injuries, and that he possessed ammunition in relation to a crime of
violence.
In his initial petition, Petitioner included an affidavit attesting to the facts his attorney did
not present the plea agreement until the morning of the change of plea and he was not in the
9

“right frame of mind” because his son had been killed four days prior. He also included that his
attorney failed to inform him of several facts important to the conviction and failed to review the
charges with him.
Based on these allegations included in his Petition and his affidavit, the Court finds
Petitioner is entitled to an evidentiary hearing on this ground. “A prisoner is entitled to an
evidentiary hearing on a section 2255 motion unless the motion and the files and records of the
case conclusively show that the prisoner is entitled to no relief.” Voytik v. United States, 778
F.2d 1306, 1308 (8th Cir. 1985). When a defendant is represented by counsel during the plea
process, “the voluntariness of the plea depends on whether counsel’s advice was within the range
of competence demanded of attorneys in criminal cases.” Ingrassia v. Armontrout, 902 F.2d
1368, 1370 (8th Cir. 1990). The record does not conclusively show Petitioner is not entitled to
relief and the Court cannot determine if his counsel’s advice to plead guilty was within the range
of competence demanded of attorneys without an evidentiary hearing. Petitioner’s claims
indicate his counsel may have been ineffective for his representation prior to the date of the
change of plea.
“Solemn declarations in open court carry a strong presumption of verity. The subsequent
presentation of conclusory allegations unsupported by specifics is subject to summary
dismissal.” Blackledge v. Allison, 431 U.S. 63, 74 (1977). Petitioner pled guilty and as part of the
change of plea he agreed, under oath, he understood the plea agreement and had spoken to his
counsel about the agreement. This is a large hurdle to overcome. However, his allegations are
supported by specific facts, making an evidentiary hearing necessary. The Court will hold an
evidentiary hearing on November 19, 2018, at 9:00 a.m.

10

Accordingly,
IT IS HEREBY ORDERED that Petitioner Tyrone Valentine’s Pro Se Motion to
Vacate, Set Aside, or Correct Sentence [1] is DENIED, as to Grounds One, Two, Three, and
Four.
IT IS FURTHER ORDERED that Petitioner Tyrone Valentine’s Amended Motion to
Vacate Conviction and Correct Sentence under 28 U.S.C. § 2255 [13] is DENIED, as to
Grounds One, Two, Three, and Four.
IT IS FURTHER ORDERED that Petitioner Tyrone Valentine’s Second Amended
Motion to Vacate Conviction and Correct Sentence under 28 U.S.C. § 2255 [22] is DENIED, as
to Grounds One, Two, Three, and Four.
IT IS FURTHER ORDERED that an evidentiary hearing will be held on November 19,
2018, at 9:00 a.m. as to Ground Five of Petitioner’s Petitions.
So Ordered this 7th day of September, 2018.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

11