United States District Court, D. Minnesota
MEMORANDUM OPINION AND ORDER
DONOVAN W. FRANK United States District Judge
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).
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.
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.
pleas were entered in each case. The Government has provided
the criminal complaints and transcripts for each of the above
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.)
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.
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