United States District Court, D. Minnesota
K. Bell, United States Attorney's Office, counsel for
Herman Pegues, Federal Correctional Institute, P.O.,
defendant pro se.
S. DOTY, JUDGE.
matter is before the court upon the pro se motion by
defendant James Herman Pegues 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.
March 26, 2014, Pegues pleaded guilty to being a Felon in
Possession of a Firearm, in violation of 18 U.S.C.
§§ 922(g) (1) and 924(e). Because Pegues had six
prior burglary convictions, he was subject to a fifteen-year
mandatory minimum sentence under the Armed Career Criminal
Act (ACCA). See 18 U.S.C. § 924(e)(1). On
November 14, 2014, the court sentenced Pegues to 15
years' imprisonment, and he did not appeal his sentence.
Pegues now moves to vacate his sentence, arguing that his
sentence is unconstitutional in light of Johnson v.
United States, 135 S.Ct. 2551 (2015) and Mathis v.
United States, 136 S.Ct. 2243 (2016).
argues that his sentence is unconstitutional in light of
Johnson, which held that the residual clause of
§ 924(e)(2)(B)(ii) is unconstitutionally vague.
Johnson, 135 S.Ct. at 2557. The government argues
that Pegues' Johnson claim is time-barred, and
the court agrees. In order to be considered timely, Pegues
must have brought his Johnson claim within the
1-year time period starting the day that Johnson was
decided. 28 U.S.C. § 2255(f); Dodd v. United
States, 545 U.S. 353, 356-57 (2005). Pegues signed his
petition on October 4, 2016 - more than one year after
Johnson was decided on June 26, 2015. Because
Pegues' petition does not meet any of the other time
limitations listed under 28 U.S.C. § 2255(f), his
Johnson claim is time-barred.
Pegues' petition was not time-barred, however,
Johnson is inapplicable to his sentence.
Johnson only held that the residual clause of §
924(e) was unconstitutional and left the remaining provisions
intact. Pegues' sentence was based not on the residual
clause, but on the enumerated offense clause that listed
burglary as a predicate offense under the ACCA. See
18 U.S.C. § 924(e)(2)(B)(ii). Therefore, even after
Johnson, Pegues' convictions for burglary
constitute predicate offenses under § 924(e).
also challenges his sentence under Mathis, arguing
that his state convictions for burglary are no longer
predicate offenses under the ACCA. In determining whether a
state burglary conviction is a predicate offense, courts
generally employ the “categorical approach” which
“compare[s] the elements of the statute forming the
basis of defendant's conviction with the elements of the
‘generic' crime ....” Descamps v. United
States, 133 S.Ct. 2276, 2281 (2013). The Supreme Court
has defined generic burglary as “an unlawful or
unprivileged entry into, or remaining in, a building or other
structure, with intent to commit a crime.” Taylor
v. United States, 495 U.S. 575, 598 (1990). Therefore,
if a state statute defines burglary more broadly than the
generic offense, it cannot qualify as a predicate offense
under the ACCA. Mathis, 136 S.Ct. at 2251.
however, the prior conviction is based on a statute that
defines a crime “by listing multiple, alternative
elements, the elements-matching required by the categorical
approach is much more difficult.” Id. at 2245.
Under these circumstances, the court employs the
“modified categorical approach” by examining a
“limited class of documents” to determine what
elements constituted the crime that the defendant was
convicted of before comparing those elements to the generic
offense. Id. at 2245-46. In Mathis, the
Supreme Court clarified that the modified categorical
approach is only applicable to statutes that list alternative
elements of a crime and not statutes that list alternative
means of committing the crime. Id. at 2251-54.
1988, Pegues pleaded guilty to first-degree burglary in
Tennessee. Presentence Investigation Report (PSR) ¶ 35.
From 1986 through 1987 Pegues had three Tennessee
second-degree burglary convictions. Id. ¶¶