United States District Court, D. Minnesota
BENJAMIN BEJAR, ASSISTANT UNITED STATES ATTORNEY, UNITED
STATES ATTORNEYFOR PLAINTIFF.
PIERRE MCCLINTON, PRO SE DEFENDANT.
MEMORANDUM, OPINION AND ON 2255 VACATE, SET ASIDE, OR
CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT
Pierre McClinton is currently serving a 180-month
mandatory-minimum sentence under the Armed Career Criminal
Act (“ACCA”), 18 U.S.C. § 924(e)(1).
McClinton seeks to vacate the sentence under 28 U.S.C. §
2255, arguing that the Court imposed an illegal sentence
because McClinton's previous aggravated robbery
conviction is not a “violent felony” for purposes
of the ACCA and that his counsel was ineffective in failing
to argue that McClinton did not have three requisite
“violent felony” convictions under the ACCA.
McClinton also moved to stay the proceedings in light of
United States v. Pettis, No. 15-233, 2016 WL 5107035
(D. Minn. Sept. 19, 2016), appeal filed, No. 16-3988
(8th Cir. Oct. 20, 2016), which is currently
pending with the Eighth Circuit, and which bears directly on
whether a Minnesota first-degree aggravated robbery while
armed with a dangerous weapon, Minn. Stat. § 609.245,
subd. 1, is a “violent felony” for purposes of
the Eighth Circuit's decision may affect whether
McClinton is actually innocent under the ACCA's force
clause, the Court will grant McClinton's motion to stay
the proceedings pending the Eighth Circuit's decision in
November 13, 2015, McClinton pleaded guilty to one count of
being “a felon in possession of a firearm as an armed
career criminal, in violation of [ 18 U.S.C. §§]
922(g)(1) and 924(e)(1).” (Plea Agreement at 1, Nov.
13, 2015, Docket No. 22.) In the plea agreement, McClinton
acknowledged that he had three or more previous convictions
for violent felonies and was therefore subject to the
180-month mandatory-minimum sentence established by the ACCA.
(Id. at 3 (“The parties agree that because the
instant offense of conviction is a violation of 18 U.S.C.
§ 922(g), and the defendant has at least three prior
convictions for a ‘violent felony, ' as defined by
18 U.S.C. § 924(e)(2)(B), the defendant is subject to an
enhanced sentence under the provisions of 18 U.S.C. §
924(e) as an armed career criminal.”).) The Court
sentenced McClinton to 180 months of imprisonment on February
25, 2016. (Sentencing J. at 1-2, Mar. 3, 2016, Docket No.
32.) McClinton did not appeal.
13, 2016, McClinton filed a motion seeking appointment of
counsel to assist him in preparing a challenge to his
conviction under the ACCA in light of Johnson v. United
States, 135 S.Ct. 2551 (2015). (See Def.'s
Mot. for Appointment of Counsel, May 13, 2016, Docket No.
35.) On June 10, 2016, the Court denied the motion as
procedurally defaulted because McClinton could have raised
any Johnson arguments on direct appeal. (Order
Denying Def.'s Mot. to Appoint Counsel, June 10, 2016,
Docket No. 36.) The Court further noted McClinton did
“not appear to have a viable claim pursuant to
Johnson” because McClinton's sentence
rested on “three or more convictions for violent
felonies” rather than the residual clause of the ACCA.
(Id. at 2.)
February 27, 2017, McClinton filed a motion to vacate his
sentence under 28 U.S.C. § 2255. (Def.'s Mot. to
Vacate, Feb. 27, 2017, Docket No. 37; see also
Def.'s Mem. in Supp., Feb. 27, 2017, Docket No. 38.)
First, McClinton argues that his counsel was ineffective for
failing to challenge the government's classification of
his previous felonies as violent felonies under the ACCA.
McClinton specifically asserts that his 2003 conviction for
Minnesota first-degree aggravated robbery should not be
deemed a “violent felony” for purposes of the
ACCA's force clause, 18 U.S.C. § 924(e)(2)(B)(i)
(providing a violent felony is any crime that “has as
an element the use, attempted use, or threatened use of
physical force against the person of another”). In
support of this contention, McClinton relies upon
Pettis, 2016 WL 5107035, at *4-5, where the district
court held that Minnesota first-degree aggravated robbery
while armed with a dangerous weapon does not qualify as a
violent felony under the ACCA's force clause.
also relying on Pettis, McClinton asserts his
current 180-month sentence is illegal because he does not
have three predicate violent felonies under the ACCA, and the
maximum statutory penalty for his offense under 18 U.S.C.
§ 922(g)(1) is 120 months. McClinton asserts that
because his counsel was ineffective in failing to challenge
the government's classification of his aggravated robbery
as a “violent felony, ” he should not be
procedurally barred from raising that issue on a § 2255
motion in order to argue that his sentence is illegal.
15, 2017, McClinton filed a motion to stay the ruling on his
motion until the Eighth Circuit decides Pettis.
(Def.'s Mot. to Stay, May 15, 2017, Docket No. 47.)
2255(a) permits a prisoner to move the court that sentenced
him to “vacate, set aside or correct the
sentence” 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.” Such relief “is reserved for
transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised on direct
appeal and, if uncorrected, would result in a complete