United States District Court, D. Minnesota
Clifford B. Wardlaw, Assistant U.S. Attorney, counsel for plaintiff.
Katherine Menendez, Office of the Federal Defender, counsel for defendant.
DAVID S. DOTY, District Judge.
This matter is before the court upon the motion by defendant William Joseph Headbird to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Based upon a review of the file, record, and proceedings herein, and for the following reasons, the court denies the motion and grants a certificate of appealability.
On February 8, 2005, Headbird was indicted on one count of being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). ECF No. 1. He proceeded to trial and was convicted of the offense on May 13, 2005. ECF No. 36. A Presentence Investigation Report (PSR) was prepared, which determined that Headbird was subject to an enhanced sentence under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The PSR applied the ACCA based on Headbird's prior Minnesota felony convictions of theft of a motor vehicle, use of a motor vehicle without consent, attempted escape from custody, escape from custody, felony attempted escape, and second degree assault. PSR ¶ 23. At sentencing, Headbird argued that his theft of a motor vehicle and escape convictions were not predicate offenses under 18 U.S.C. § 924(e). See ECF No. 51, at 2. The court disagreed, and on December 9, 2005, the court sentenced Headbird to a term of imprisonment of 327 months. See ECF No. 54. Headbird appealed and the Eighth Circuit affirmed. United States v. Headbird, 461 F.3d 1074, 1079-80 (8th Cir. 2006), abrogated in part by Chambers v. United States, 555 U.S. 122, 126-27 (2009). On June 20, 2014, Headbird filed the instant motion under § 2255, arguing that his 327-month sentence must be vacated because his escape convictions are no longer violent felonies in light of Descamps v. United States, 133 S.Ct. 2276 (2013).
Section 2255 provides a federal inmate with a limited opportunity to challenge the constitutionality, legality, or jurisdictional basis of a sentence imposed by the court. 28 U.S.C. § 2255. This collateral relief is an extraordinary remedy, reserved for "transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). Headbird argues that his escape convictions are no longer predicate offenses after Descamps, and as a result, his sentence exceeds the statutory maximum term of 10 years for a violation of 18 U.S.C. § 922(g).
I. Relief Under Descamps v. United States
The ACCA imposes a mandatory 15-year sentence for a defendant who is convicted of being a felon in possession of a firearm and who has three previous convictions for a violent felony. 18 U.S.C. § 924(e)(1). A prior conviction is a violent felony if it "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii)... otherwise involves conduct that presents a serious potential risk of physical injury to another." Id . § 924(e)(2)(B). Courts typically utilize a "formal categorical approach" to determine whether a prior conviction is a violent felony. Descamps, 133 S.Ct. at 2283 (quoting Taylor v. United States, 495 U.S. 575, 600 (1990)). Under this approach, the court looks "only to the statutory definitions... of a defendant's prior offenses." Id . (citation and internal quotation marks omitted). If the relevant statute "sweeps more broadly than the generic [ACCA] crime, a conviction under that law cannot count as an ACCA predicate, even if the defendant actually committed the offense in its generic form." Id.
In certain circumstances, a "modified categorical approach" may be used, in which the court "look[s] beyond the statutory elements" and examines a "limited class of documents to determine which of a statute's alternative elements formed the basis of the defendant's prior conviction." Id. at 2283-84. Descamps held that the modified categorical approach can only be applied to "divisible" statutes which set forth alternative elements. Id. at 2285. This is "[b]ecause only divisible statutes enable a sentencing court to conclude that a jury (or judge at a plea hearing) has convicted the defendant of every element of the generic crime." Id. at 2290.
Headbird argues that, in light of Descamps, the escape statute under which he was convicted is no longer a predicate offense because it is indivisible and in part prohibits nonviolent conduct. See Minn. Stat. § 609.485, subd. 1 (1994) ("Escape' includes departure without lawful authority and failure to return to custody following temporary leave...."); United States v. Tucker, 740 F.3d 1177, 1183-84 (8th Cir. 2014) (en banc) (holding that, after Descamps, a conviction under an indivisible Nebraska escape statute did not qualify as a violent felony). Even if the convictions are no longer violent felonies under the ACCA, however, the court finds that Headbird is not entitled to relief because his motion is untimely.
Section 2255 imposes a one-year limitation period that begins to run, in relevant part, from "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). "[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Chaidez v. United States, 133 S.Ct. 1103, 1107 (2013) (quoting Teague v. Lane, 489 U.S. 288, 301 (1989)). A result is not dictated by precedent "unless it would have been apparent to all reasonable jurists." Id . (citation and internal quotation marks omitted).
Headbird argues that Descamps created a new rule that applies retroactively on collateral review. Specifically, Headbird argues that precedent would not have compelled reasonable jurists to hold that the modified categorical approach can only apply to divisible statutes. The court disagrees. The majority clearly looked to existing precedent to resolve when the modified categorical approach may be applied. See Descamps, 133 S.Ct. at 2283 ("Our caselaw... all but resolves this case."). In particular, the Court relied on Taylor v. United States, 495 U.S. 575 (1990), and Shepard v. United States, 544 U.S. 13 (2005), to resolve the issue. Taylor adopted the formal approach to determining ACCA predicate offenses and held that the modified categorical approach could apply only in narrow circumstances. See Descamps, 133 S.Ct. at 2283-84 (citing Taylor, 495 U.S. at 599-602). Shepard held that a conviction based on a guilty plea could be an ACCA predicate only if the defendant ...