Canton v. USA

Filing 36

ORDER granting 35 motion to supplement. Movant's Original Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence 1 as well as Movant's Superseding Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Cor rect Sentence 26 are DENIED. No evidentiary hearing will be held in this matter because the issues raised are resolvable by the record. Movant will be denied a motion for certificate of appealability. Signed on 8/29/14 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda) Modified on 8/29/2014 to reflect that a copy of the Order was sent via mail to Movant, Quinton O. Canton, Forrest City Medium FCI, PO Box 3000, Forrest City, AR 72336 (Wheeler, LaTandra).

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
QUINTON O. CANTON,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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) Civil No. 13-0308-CV-W-FJG
) Crim. No. 10-00146-01-CR-W-FJG
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ORDER
Pending before the Court is Movant’s Motion under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (Doc. No. 1, filed on March 25, 2013). Also before the
Court is Movant’s Superseding Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence (Doc. No. 26, filed on March 3, 2014). Also before the Court is
Movant’s Motion to Supplement 2255 (Doc. No. 35, filed on August 1, 2014). As an
initial matter, the Court will GRANT the motion to supplement (Doc. No. 35), and will
consider the case cited in movant’s motion below.
On May 25, 2010, movant was charged in a two-count indictment with being a
felon in possession of a firearm (Count One) and ammunition (Count Two), in violation
of §§ 922(g)(1) and 924(a)(2). On April 27, 2011, movant pled guilty to Count Two of
the indictment, without a written plea agreement. On September 12, 2011, the district
court sentenced movant to 180 months’ imprisonment under 18 U.S.C. § 924(e), the
Armed Career Criminal Act, with five years of supervised release to follow.
Movant appealed. The Eighth Circuit affirmed movant’s sentence on March 19,
2012, finding that movant’s second degree burglary convictions counted as violent
felonies under the ACCA. United States v. Canton, 464 Fed. Appx. 551, 552 (8th Cir.
2012). The Eighth Circuit further found that movant’s prior Missouri conviction for sale
cocaine base qualified as a “serious drug offense” under the ACCA. Id. at 553. The

Eighth Circuit further found that movant’s sentence, to the statutory minimum under the
ACCA, did not constitute cruel and unusual punishment under the Eighth Amendment to
the United States Constitution. Id.
On March 25, 2013, movant filed a pro se motion to vacate, set aside, or correct
sentence, asserting that counsel was ineffective for failure to file a petition for writ of
certiorari after the Eighth Circuit made its decision. Movant asserted that his appeals
counsel should have filed a petition for writ of certiorari, asserting that the decisions in
Descamps v. United States, 570 U.S. ____, 133 S.Ct. 2276 (2013) and Alleyne v.
States, 570 U.S. ___, 133 S.Ct. 2151 (2013) would have an impact on his sentence.1
The Government responded on May 16, 2013 (Doc. No. 9), indicating that (1) failure to
a petition for writ of certiorari does not constitute ineffective assistance of counsel, in
due process does not guarantee a constitutional right for litigants to have the assistance
of counsel given that writ of certiorari is discretionary, see Steele v. United States, 518
F.3d 986, 988 (8th Cir. 2008); and (2) the outcomes of Descamps and Alleyne would
no impact on movant’s case.
Instead of filing reply suggestions to the government’s brief, movant filed a
to Supplement § 2255 Petition Based upon Recent Decisions Announced by Supreme
Court of the United States (Doc. No. 13, filed on August 1, 2013). Movant requested to
supplement his original petition using the recently-announced decisions in Descamps
and Alleyne. The government opposed (Doc. No. 19, filed on November 4, 2013),
indicating that (1) movant’s new arguments have nothing to do with ineffective
of counsel; (2) the Descamps case does not apply retroactively to movant’s case; and
the California burglary statute at issue in Descamps is distinguishable from the Missouri
burglary statute at issue in movant’s case.

The government also argued that the

decision does not require the issue of predicate convictions to be submitted to the jury,
1

At the time movant filed his initial motion under Section 2255, Descamps and Alleyne
had been argued but had not yet been decided by the Supreme Court.
2

Alleyne does not overrule Almendarez-Torres v. United States, 523 U.S. 224 (1998),
which removed prior convictions from the class of facts which must be submitted to a
to increase a defendant’s sentence.
On January 17, 2014, the Court entered its order granting movant’s motion for
leave to file a supplemental section 2255 motion, finding that the motion should be
granted because Descamps and Alleyne had not been decided at the time of the filing
of movant’s original section 2255 motion. Order, Doc. No. 25.
On March 3, 2014, movant filed his superseding section 2255 motion (Doc. No.
26). Instead of raising arguments related to Descamps, however, movant indicates that
(1) in light of United States v. Burrage, 571 U.S. ___, 134 S.Ct. 881 (2014)2, any prior
conviction that is used to increase the minimum or maximum statutory punishment must
be submitted to a jury; and (2) his prior second degree burglary convictions should not
considered violent felonies in light of United States v. Boose, 739 F.3d 1185 (8th Cir.
2014), in which the Eighth Circuit found that first degree battery in Arkansas is not a
violent felony for purposes of the ACCA. Movant filed supplemental authority on April 4,
2014 (Doc. No. 31), again arguing that Burrage applies to any factual predicate to a
sentence enhancement, including the fact of a prior conviction. In response (Doc. No.
32), the government argues that (1) Burrage merely cites Alleyne and does not add
anything to the analysis of the issues in this case; (2) Alleyne is not retroactive to cases
collateral review; (3) Alleyne does not overrule Almendarez-Torres v. United States, 523
U.S. 224 (1998); and (4) United States v. Boose has no relevance to the matter at hand,
as first degree battery under Arkansas law has no connection to second degree
under Missouri law.

2

Burrage does not stand for the proposition asserted by movant. Burrage, instead,
provides that in order to receive a penalty enhancement under 21 U.S.C. § 841(b)(1)(C)
for drug distribution resulting in death, the drug must have been the but-for cause of the
injury or death. 134 S.Ct. at 892.
3

In movant’s response to the government’s suggestions (Doc. No. 34), the movant
raises again the argument that appellate counsel was ineffective for failing to file a
petition for writ of certiorari. Movant also reiterates his arguments regarding Descamps,
Alleyne, Burrage, and Boose.
On August 1, 2014, movant filed a Motion Pursuant to Federal Rules of Civil
Procedure, Rule 15(a) to Amend the Pending § 2255 Motion, Challenging the State
Previous Drug Conviction Used for Triggering Penalty Enhancement § 924(e) is Invalid
(Doc. No. 35). Movant argues that the Ninth Circuit Court of Appeals recently held, in
United States v. Lopez-Chavez, No. 11-50227, 2014 WL 2978488 (9th Cir. July 3, 2014),
that a conviction under R.S.Mo. § 195.211 is not an aggravated felony under the
Immigration and Nationality Act (INA), and presumably movant argues that means that
such a conviction should not be considered a “serious drug offense” under 18 U.S.C. §
924(e)(2)(A)(ii).

STANDARD
A motion under 28 U.S.C. § 2255 may present a collateral attack to a sentence
under the following grounds: (1) the sentence was imposed in violation of the
Constitution or laws of the United States; (2) the court was without jurisdiction to impose
such sentence; (3) the sentence was in excess of the maximum authorized by law; or
(4) the sentence is otherwise subject to collateral attack. Hill v. United States, 368 U.S.
424, 426–27 (1962); 28 U.S.C. § 2255(a). A § 2255 motion is not a substitute for direct
appeal, and is not designed for complaints regarding simple trial errors. Poor Thunder v.
United States, 810 F.2d 817, 821 (8th Cir.1987).
To establish a claim for relief based upon ineffective assistance of counsel,
movant must show that counsel failed to exercise the skill and diligence that a
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competent attorney would have exercised under similar circumstances.
Lockhart, 738 F.2d 304, 307 (8th Cir. 1984).

Thomas v.

There is a Astrong presumption that

counsel=s conduct falls within the wide range of reasonable professional assistance.@
Strickland v. Washington, 466 U.S. 668, 689 (1984). Movant must also demonstrate
he was prejudiced by the alleged incompetence of counsel by showing the existence of
Areasonable probability that, but for counsel=s unprofessional errors, the result of the
proceeding would have been different.@ Id. AA reasonable probability is a probability
sufficient to undermine confidence in the outcome.@ Id.

JUDGMENT
The Court has reviewed movant=s motion (Doc. No. 1), movant’s memorandum in
support (Doc. No. 2), respondent=s opposition (Doc. No. 9), movant’s motion to
supplement (Doc. No. 13), respondent’s opposition thereto (Doc. No. 19), movant’s
(Doc. No. 24), movant’s superseding 2255 motion (Doc. No. 26), movant’s
in support (Doc. No. 27), movant’s supplemental authority (Doc. No. 31), respondent’s
opposition (Doc. No. 32), movant’s reply (Doc. No. 34), and movant’s motion to
supplement (Doc. No. 35), as well as the record in the underlying criminal case, and
that movant=s allegations are without merit for the reasons stated in respondent=s
opposition.

In particular, the Court finds (1) movant’s appellate counsel was not

ineffective for not filing a petition for writ of certiorari, given that movant has no due
process right to have the assistance of counsel on a petition for writ of certiorari, see
Steele v. United States, 518 F.3d 986, 988 (8th Cir. 2008); (2) Descamps v. United
570 U.S. ____, 133 S.Ct. 2276 (2013) does not alter the outcome of movant’s case as
Eighth Circuit has recently found that a conviction under Missouri’s second-degree
burglary statute still qualifies as a violent felony despite the Supreme Court’s holding in
Descamps, see United States v. Olsson, 742 F.3d 855, 856 (8th Cir. 2014); (3) Alleyne
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United States, 570 U.S. ___, 133 S.Ct. 2151 (2013) is not retroactive, and even if it
it has not overruled Almendarez-Torres v. United States, 523 U.S. 224 (1998); (4)
States v. Burrage, 571 U.S. ___, 134 S.Ct. 881 (2014) and United States v. Boose, 739
F.3d 1185 (8th Cir. 2014) have no impact on movant’s sentence whatsoever; and (5) the
Ninth Circuit’s holding, in United States v. Lopez-Chavez, No. 11-50227, 2014 WL
2978488 (9th Cir. July 3, 2014), has no impact on movant’s case in that it involves the
interpretation of a different law (the Immigration and Nationality Act) made by a court
outside this circuit.
Therefore, both Movant’s Original Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence (Doc. No. 1, filed on March 25, 2013), as well as Movant’s
Superseding Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(Doc. No. 26, filed on March 3, 2014), are DENIED.
No evidentiary hearing will be held in this matter because the issues raised are
resolvable by the record. Furthermore, movant will be denied a motion for certificate of
appealability, in that the issues raised are not debatable among reasonable jurists, nor
could a court resolve the issues differently.
IT IS SO ORDERED.

Date: August 29, 2014
Kansas City, Missouri

S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge

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