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United States v. McClinton

United States District Court, D. Minnesota

August 4, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
DAMIN PIERRE McCLINTON, Defendant.

          BENJAMIN BEJAR, ASSISTANT UNITED STATES ATTORNEY, UNITED STATES ATTORNEYFOR PLAINTIFF.

          DAMIN PIERRE MCCLINTON, PRO SE DEFENDANT.

          MEMORANDUM, OPINION AND ON 2255 VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY

          JOHN R. TUNHEIM CHIEF JUDGE UNITED STATES DISTRICT COURT

         Damin 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 ACCA.

         Because 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 Pettis.

         BACKGROUND

         On 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.

         On May 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.)

         On 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.

         Second, 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.

         On May 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.)

         DISCUSSION

         I. SECTION 2255

         Section 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 ...


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