United States District Court, D. Minnesota
E. Allyn, United States Attorney's Office, counsel for
Johon Pruitt, #16812-041, defendant pro se.
S. Doty, Judge
matter is before the court upon the pro se motion by
defendant Derrel Johon Pruitt to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. Based on a
review of the file, record, and proceedings herein, and for
the following reasons, the court denies the motion.
April 26, 2013, Pruitt pleaded guilty to two counts of
Interference with Commerce by Robbery, in violation of 18
U.S.C. §§ 1951 and 2 (Hobbs Act), and one count of
Possession of a Firearm in Furtherance of a Crime of
Violence, in violation of 18 U.S.C. §§ 924(c)(1)
and 2. On December 4, 2013, the court sentenced Pruitt to 300
months' imprisonment, and he did not appeal. Defendant
now moves to vacate his sentence, arguing that his sentence
is unconstitutional in light of Johnson v. United
States, 135 S.Ct. 2551 (2015).
government argues that Pruitt's motion is procedurally
barred, and the court agrees. Generally, a court may only
consider a claim raised in a habeas petition if the defendant
raised it in a direct appeal. See Bousely v. United
States, 523 U.S. 614, 622 (“[A] defendant ...
procedurally default[s] a claim by failing to raise it on
direct review.”). A court, however, may consider a
claim not brought in a direct appeal if the defendant shows
either “cause and actual prejudice, or that he is
actually innocent.” Id. at 622 (citations and
internal quotation marks omitted). A defendant can show cause
if “a claim is so novel that its legal basis is not
reasonably available to counsel ....” Id.
(quoting Reed v. Ross, 468 U.S. 1, 16 (1984)). The
court believes that Pruitt's claim under Johnson
would not have been reasonably available to him at the time
of his sentencing because Johnson explicitly
overruled Supreme Court precedent. See Reed v. Ross,
468 U.S. at 17 (holding that when the Supreme Court overrules
one of its precedents “there will almost certainly have
been no reasonable basis upon which an attorney previously
could have urged a ... court to adopt the position that [the
Supreme Court] has ultimately adopted); see also United
States v. Sabetta, No. 13-cr-036-S-LDA, 2016 WL 6157454,
at *11 (holding that a Johnson claim was not
procedurally defaulted). Therefore, Pruitt has shown cause
for not asserting this claim on direct appeal.
Pruitt must also show actual prejudice in order to avoid
procedural default. In order to establish actual prejudice,
Pruitt must show that there is a “reasonable
probability that the result of his [sentence] would have been
different” had he raised this argument at sentencing.
Strickler v. Greene, 527 U.S. 263, 289 (1999).
Pruitt cannot show prejudice, however, because
Johnson does not apply to his sentence.
Johnson, the Supreme Court struck down the residual
clause of the Armed Career Criminal Act (ACCA), 18 U.S.C.
§ 924(e)(2)(B)(ii), as unconstitutionally vague. Pruitt
argues that: (1) his sentence was based on a similar residual
clause found in 18 U.S.C. § 924(c)(3)(B) and (2) this
residual clause is unconstitutionally vague in light of
Johnson. The court is not persuaded. First, the
court is convinced that Pruitt's violation of the Hobbs
Act is a “crime of violence” as defined in 18
U.S.C. § 924(c)(3)(A); therefore, Pruitt's sentence
was not based on the residual clause in question. Second,
even if Pruitt's sentence was based on the residual
clause, the Eighth Circuit Court of Appeals has recently held
that the clause is not unconstitutionally vague. United
States v. Prickett, No. 15-3486, 2016 WL 5799691, at *3
(8th Cir. Oct. 5, 2016). Because Johnson does not
apply to Pruitt's sentence, he cannot show prejudice. As
a result, his claim is procedurally defaulted.
Certificate of Appealability
warrant a certificate of appealability, a defendant must make
a “substantial showing of the denial of a
constitutional right” as required by 28 U.S.C. §
2253(c)(2). A “substantial showing” requires a
petitioner to establish that “reasonable jurists”
would find the court's assessment of the constitutional
claims “debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 483-84 (2000). The court is
firmly convinced that Johnson does not apply to