United States District Court, D. Minnesota
Michelle E. Jones, Assistant United States Attorney, Counsel for Plaintiff.
Tracy Lee Shenett, pro se.
MEMORANDUM OF LAW & ORDER
MICHAEL J. DAVIS, Chief District Judge.
This matter is before the Court on Defendant Tracy Lee Shenett's Motion for Relief from Void Judgment Pursuant to Rule 60(b)(4), Fed. R. Civ. P., or Rule 32(d), Fed. R. Crim. P., or for Alternative Relief [Docket No. 62] and Motion for Summary Judgment on Rule 60 Motion. [Docket No. 63]
On December 20, 2005, an indictment was filed against Defendant Tracy Lee Shenett ("the Defendant") charging him with bank robbery in violation of 18 U.S.C. § 2113(a). The Defendant entered a guilty plea on June 19, 2006. The Defendant's criminal record included two prior convictions: one conviction for second-degree burglary of a liquor store, and another for third-degree burglary of a restaurant. In the Defendant's Plea Agreement and Sentencing Stipulations [Docket No. 35] the parties had differing opinions as to whether the Defendant qualified as a career offender under U.S.S.G. § 4B1.1, due to a circuit split as to whether burglaries of commercial buildings qualify as crimes of violence under the Guidelines. Although the Defendant took the position that he was not a career offender, at the time of his guilty plea, the Defendant acknowledged that he had gone over the Guidelines and the "issue of whether or not [he was] a career criminal." ([Docket No. 59] Plea Hrg. Tr. at 14.) He further acknowledged the Government's position as to his career offender status, saying, "I mean, there's second degree burglary and third degree burglary. Like in the guidelines book I know it says burglary of a dwelling. These were businesses that were closed. It was 17 years ago that one of them was." (Id. at 19.)
The Defendant testified that he reviewed his plea agreement, which included the mandatory statutory penalties for his offense. (Id. at 3.) The Defendant understood that the maximum statutory penalty was a term of imprisonment up to 20 years. (Id.) When asked whether or not he was satisfied with his counsel's representation, the Defendant answered in the affirmative. (Id. at 18.)
On December 12, 2006, the Court sentenced the Defendant to 151 months. At his sentencing hearing, the Defendant's counsel objected to the Defendant being classified as a career offender, again citing an inter-circuit split. ([Docket No. 62-1] Sentencing Hrg. Tr. 4-6.) In deciding the Defendant's sentence, the Court determined that the Defendant was a career offender, stating,
"[A]s your counsel has probably told you and should have told you, I have to follow the law of this circuit, the Eighth Circuit, which has clearly classified burglaries of businesses as crimes of violence. That was reaffirmed this year and... there's no way I can get around that classification."
(Id. at 8.)
The Defendant appealed his sentence to the Eighth Circuit, arguing that this Court erred in sentencing him as a career offender because neither of his prior burglaries were crimes of violence under U.S.S.G. § 4B1.2(a), which states:
(a) The term "crime of violence" means any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that -
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
On appeal, the Eighth Circuit affirmed the Court's sentence, citing precedent that "commercial burglaries constitute crimes of violence under section 4B1.2 because of the serious potential risk of injury to others inherent in the offense." United States v. Shenett, 240 Fed.App'x 160, 161 (8th Cir. 2007) (citations omitted). The Defendant then filed a Petition for Writ of Certiorari to the United States Supreme Court. [Docket No. 58] The Supreme Court denied the Defendant's Petition on April 28, 2008. [Docket No. 60]
In November, 2008, the Defendant consulted with an attorney "to determine whether [he] should file a motion pursuant to 28 U.S.C. § 2255... based on ineffective assistance of counsel." (Def.'s Mot. Relief J., Ex. C, Letter from James M. Braden, Esq., to Thomas R. Moore, Esq., dated November 20, 2008 at p. 1.) The post-conviction attorney concluded that a motion claiming ineffective assistance of counsel would be ...