United States District Court, D. Minnesota
Joseph LeGrand, 18472, pro se.
M. Kayser, Assistant United States Attorney, for plaintiff.
ORDER DENYING MOTION TO VACATE, SET ASIDE, OR CORRECT
R. TUNHEIM Chief Judge
Kelley Joseph LeGrand is currently serving a 235-month term
of imprisonment for drug-related offenses. LeGrand now brings
a 28 U.S.C. § 2255 motion challenging his sentencing,
under Johnson v. United States, 135 S.Ct. 2551
(2015). Because the Supreme Court recently decided
Johnson's holding does not extend to the United
States Sentencing Guidelines Manual
(“Guidelines”), the Court will deny LeGrand's
motion to vacate and motion to appoint counsel.
April 21, 2004, a jury found LeGrand guilty of one-count
Conspiracy to Distribute Methamphetamine and one-count Aiding
and Abetting, Possession with Intent to Distribute
Methamphetamine. LeGrand filed a motion for a new trial,
which the Court denied on May 20, 2004. On December 30, 2004,
the Court sentenced LeGrand to 262 months imprisonment on
each count to be served concurrently and denied LeGrand's
motion for a downward departure.
appealed the application and constitutionality of the
Guidelines. The Eighth Circuit reversed LeGrand's
sentence in light of United States v. Booker, 543
U.S. 220 (2005), and remanded for resentencing. (J. of USCA,
Apr. 22, 2005, Docket No. 129.) On September 8, 2005, the
Court resentenced LeGrand to 235 months imprisonment on each
count to be served concurrently. LeGrand again appealed the
application of the Guidelines. The Eighth Circuit affirmed
this Court's sentence, and the Supreme Court denied
LeGrand's petition for writ of certiorari. United
States v. LeGrand, 468 F.3d 1077 (8th Cir.
2006), cert. denied, 551 U.S. 1109 (2007).
February 29, 2016, LeGrand filed a pro se motion to
vacate, set aside, or correct his sentence pursuant to §
2255. (Pro Se Mot. to Vacate, Feb. 29, 2016,
Docket No. 179.) LeGrand also filed a motion to appoint
counsel on March 24, 2017. (Pro Se Mot. to Appoint Counsel,
Mar. 24, 2017, Docket No. 185.)
MOTION TO VACATE
2255 allows a federal prisoner a limited opportunity to seek
post-conviction relief on the grounds that “the
sentence was imposed in violation of the Constitution or laws
of the United States, or that the court was without
jurisdiction to impose such sentence, or that the sentence
was in excess of the maximum authorized by law, or is
otherwise subject to collateral attack.” 28 U.S.C.
§ 2255(a). “Relief under . . . § 2255 is
reserved for transgressions of constitutional rights and for
narrow range of injuries that could not have been raised on
direct appeal and, if uncorrected, would result in a complete
miscarriage of justice.” Walking Eagle v. United
States, 742 F.3d 1079, 1081-82 (8th Cir.
2014) (quoting United States v. Apfel, 97 F.3d 1074,
1076 (8th Cir. 1996)).
United States argues that LeGrand's current challenge
that his attempted third-degree burglary conviction was not a
“crime of violence” has already been
“raised and decided on direct appeal, ” and, as
such, “cannot ordinarily be relitigated in a collateral
proceeding based on . . . § 2255.” United
States v. Wiley, 245 F.3d 750, 752 (8th Cir.
previously appealed the Court's finding that he was a
career offender under U.S.S.G. § 4B1.1, arguing that his
prior Minnesota conviction for attempted third-degree
burglary was not a “crime of violence.”
LeGrand, 468 F.3d at 1081. The Eighth Circuit
rejected LeGrand's challenge, holding that attempted
third-degree burglary qualified as generic burglary under
Taylor v. United States, 495 U.S. 575 (1990), and
noting that, in the Eighth Circuit, generic burglaries
qualify as “crimes of violence” under “the
‘otherwise involves' provision of [U.S.S.G.] §
4B1.2(a)(2).” LeGrand, 468 F.3d at 1081-82.
Thus, the Eighth Circuit held LeGrand's attempted
third-degree burglary conviction satisfied the
“residual clause, ” because a generic burglary
conviction “always has a ‘serious potential risk
of physical injury to another'” and, thus, was a
“crime of violence” under the Guidelines.
Id. at 1082.
argues that, even though he raised the issue of whether
attempted third-degree burglary was a “crime of
violence” on direct appeal, the Supreme Court's
decision in Johnson is an intervening change in the
law that warrants collateral proceedings under § 2255.
The Court is permitted under § 2255 to reconsider an
issue raised on direct appeal if ...