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United States v. Pankey

United States District Court, D. Minnesota

March 16, 2017

United States of America, Respondent-Plaintiff,
v.
Ocie Pankey, Petitioner-Defendant. Civil No. 16-2219 (DWF)

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK United States District Judge

         INTRODUCTION

         This matter is before the Court on Petitioner-Defendant Ocie Pankey's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. Nos. 52 & 64.) Specifically, the Petitioner-Defendant alleges that he should no longer be subject to the provisions of 18 U.S.C. § 924(e) because his three prior convictions for aggravated robbery do not survive Johnson v. United States, 135 S.Ct. 2551 (2015). The Government opposes the Petitioner-Defendant's motions, alleging that the three convictions remain valid because they do not implicate the residual clause. (Doc. Nos. 57 & 65.) Additionally, the Government alleges that because Johnson does not apply to the Petitioner-Defendant's case, that his one-year time period to bring his § 2255 petition has expired and that therefore his § 2255 petition is untimely pursuant to 28 U.S.C. § 2255(f).

         BACKGROUND

         On December 11, 2007, the Petitioner-Defendant entered a plea of guilty to Count 1 of the Indictment, namely, Felon in Possession of a Firearm pursuant to 18 U.S.C. §§ 922(g)(1) and 924(e)(1). Count 1 carried a mandatory minimum sentence of 15 years. The Petitioner-Defendant was sentenced on April 3, 2008, to a term of 180 months. The Petitioner-Defendant did not appeal his sentence.

         The Petitioner-Defendant's three prior convictions for aggravated robbery were as follows:

• Aggravated robbery, committed on October 24, 1986, Ramsey County, Presentence Report (“PSR”) ¶ 24, pursuant to M.S.A. §§ 609.245 and 609.11;
• Aggravated robbery, committed on October 17, 1986, Hennepin County, PSR ¶ 25, pursuant to M.S.A. §§ 609.245 and 609.11; and
• Aggravated robbery, committed on October 23, 1997, Dakota County, PSR ¶ 28, pursuant to M.S.A. §§ 609.245 and 609.11.

         Guilty pleas were entered in each case. The Government has provided the criminal complaints and transcripts for each of the above pleas.

         At the time of sentencing, as observed by the Government, the Petitioner-Defendant did not object to or otherwise dispute his criminal history as set forth in the PSR. (Doc. No. 40.)

         I. Johnson Claim

         The Petitioner-Defendant asserts that his three prior convictions for aggravated robbery do not survive a Johnson challenge pursuant to the Armed Career Criminal Act (“ACCA”). The ACCA establishes enhancement sentencing for a felon in possession case where a defendant has three previous convictions for a violent felony or serious drug offense, or both, committed on occasions different from another.

         In June 2015, the United States Supreme Court held in Johnson v. United States that the residual clause of the ACCA was unconstitutionally vague. 135 S.Ct. 2551, 2557 (2015). The Supreme Court, however, did not strike any other provision of the ACCA. See Id. at 2563. The Government asserts that even after Johnson, the Petitioner-Defendant ...


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