Canton v. USA
ORDER - the Court GRANTS movant's Motion to Correct Sentence under 28 U.S.C. § 2255 1 . The Court ORDERS that: 1) The Probation Office shall prepare an updated Presentence Investigation Report; and 2) The Court will set a date for the resentencing hearing upon receipt of the Presentence Investigation Report. Signed on 1/30/17 by District Judge Fernando J. Gaitan, Jr. (Enss, Rhonda)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
QUINTON O. CANTON,
UNITED STATES OF AMERICA,
) Civil No. 16-0875-CV-W-FJG
) Crim. No. 10-00146-01-CR-W-FJG
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 August 11, 2016).
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
of 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 his first pro se motion to vacate, set aside, or
correct his 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. United States, 570 U.S. ___, 133 S.Ct. 2151 (2013) would have an impact on
his sentence. The Government responded on May 16, 2013 (Doc. No. 9), indicating
(1) failure to file a petition for writ of certiorari does not constitute ineffective assistance
counsel, in that due process does not guarantee a constitutional right for litigants to
the assistance of counsel given that writ of certiorari is discretionary, see Steele v.
States, 518 F.3d 986, 988 (8th Cir. 2008); and (2) the outcomes of Descamps and
would have no impact on movant’s case.
Instead of filing reply suggestions to the government’s brief, movant filed a
Motion 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
assistance of counsel; (2) the Descamps case does not apply retroactively to movant’s
case; and (3) 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 Alleyne decision does not require the issue of predicate convictions to
be submitted to the jury, as 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 jury 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
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 indicated that
(1) in light of United States v. Burrage, 571 U.S. ___, 134 S.Ct. 881 (2014), 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
be 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. On August 29, 2014,
the Court rejected the first and the supplemental 2255 motions. The Court denied
movant’s motion for reconsideration on January 14, 2015. Movant filed a notice of
appeal on February 10, 2015, and on June 23, 2015, the Eighth Circuit denied his
application for certificate of appealability.
On June 26, 2015, the Johnson opinion was released by the Supreme Court,
invalidating the residual clause of § 924(e). See Johnson v. United States, 135 S. Ct.
2551, 192 L. Ed. 2d 569 (2015). On October 27, 2015, movant filed a motion seeking
permission to file a successive § 2255 motion based on Johnson. The Eighth Circuit
denied that request on March 16, 2016. Movant then filed a second petition seeking
leave to file a successive § 2255 motion, and the Eighth Circuit granted that petition on
August 5, 2016. The successive § 2255 currently pending was filed on August 11,
2016. Movant argues that his sentence is in excess of the maximum authorized by law,
that he no longer qualifies as an armed career criminal because one of his convictions
was for second degree burglary of an inhabitable structure, which does not qualify as a
“generic burglary” under the ACCA. If that conviction was not counted, movant would
not have three prior convictions qualifying as violent felonies under the ACCA. Movant,
therefore, asks this Court to vacate his previous sentence of 180 months and
him without application of the ACCA.
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).
The Court has reviewed movant=s motion and memorandum in support (Doc. No.
1), respondent=s opposition (Doc. No. 7), movant’s reply (Doc. No. 9), as well as the
record in the underlying criminal case. Upon that review, the Court finds that movant’s
motion (Doc. No. 1) must be granted.
Movant asserts that his conviction for burglary in the second degree does not
qualify as a violent felony under the ACCA.
In particular, plaintiff argues that when
charged as burglary of an inhabitable structure, Missouri’s burglary statute does not
qualify as generic burglary under the ACCA. The government notes in its response that
there may be some support for movant’s argument given the Supreme Court’s recent
opinion in Mathis v. United States, 579 U.S. ___, 136 S.Ct. 2243 (2016), which found
“a prior crime qualifies as an ACCA predicate ‘if, but only if, its elements are the same
or narrower than, those of the generic offense.’” Id. at 2247. The government, however,
argues that this route to relief should not be available to those pursuing a successive §
2255 motion, because Mathis does not announce a new law or right.
The Court notes, however, that several other divisions of this court have rejected
the government’s arguments regarding Mathis and its application to Missouri’s second
degree burglary statute. See Mahan v. United States, 16-CV-3063-SRB (Doc. No. 10,
August 10, 2016) (granting a first motion to vacate over government opposition); Corp v.
United States, 16-CV-5051-SRB (Doc. No. 13, August 11, 2016) (granting a first motion
vacate over government opposition; Lacy v. United States, 16-CV-0120-ODS, 2016 WL
4528965 (W.D. Mo. August 30, 2016) (granting a first motion to vacate over government
opposition); Peterman v. United States, 16-CV-0696-GAF (Doc. No. 10, August 29,
(granting a motion to vacate over government opposition on a successive § 2255
Johnson v. United States, 16-CV-0649-NKL, 2016 WL 6542860 (W.D. Mo. Nov. 3,
(granting a motion to vacate over government opposition on a successive § 2255
The Court agrees with Judge Fenner in his conclusion that Mathis “only clarifies how
courts should apply and should have been applying the ACCA.” Peterman, Doc. No. 10
at 8. Therefore, the Court finds that, in light of Johnson, movant’s prior conviction for
second degree burglary of an inhabitable structure no longer qualifies as a “violent
under the ACCA, making his currently imposed sentence of 180 months a per se illegal
Accordingly, the Court hereby GRANTS movant’s Motion to Correct Sentence
under 28 U.S.C. § 2255 (Doc. No. 1). The Court hereby ORDERS that:
1) The Probation Office shall prepare an updated Presentence Investigation Report;
2) The Court will set a date for the resentencing hearing upon receipt of the
Presentence Investigation Report.
IT IS SO ORDERED.
Date: January 30, 2017
Kansas City, Missouri
S/ FERNANDO J. GAITAN, JR.
Fernando J. Gaitan, Jr.
United States District Judge
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