United States District Court, D. Minnesota
Calhoun-Lopez, Assistant United States Attorney, United
States Attorney's Office, Minneapolis, MN, on behalf of
Terrell Ellis, pro se.
MEMORANDUM OPINION AND ORDER
MONTGOMERY U.S. DISTRICT JUDGE
matter is before the undersigned United States District Judge
for a ruling on Defendant Albert Terrell Ellis'
(“Ellis”) pro se Motion Under 28 U.S.C. §
2255 to Vacate, Set Aside, or Correct Sentence [Docket No.
(“Initial 2255 Motion”), Motion for the
Appointment of Counsel [Docket No. 115], Amended Motion to
Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. §
2255 [Docket No. 124] (“Amended 2255 Motion”) and
Second Motion for Appointment of Counsel [Docket No. 123].
For the reasons set forth below, Ellis' Motions are
2, 2014, a jury found Ellis guilty of being a felon in
possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) (Count 1), possession with intent to
distribute heroin in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C) (Count 3), and use of a firearm
during and in relation to a drug trafficking crime in
violation of 18 U.S.C. § 924(c)(1)(A) (Count 4). Jury
Verdict [Docket No. 70] at 1-2; Sentencing J. [Docket No. 91]
Presentence Investigation Report (“PSR”)
determined that Ellis' conviction under 18 U.S.C. §
922(g) (Count 1) qualified him as an armed career criminal
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e)(2), and he was therefore subject to a
mandatory minimum sentence of 15 years imprisonment. PSR
¶¶ 49, 107. This determination was based on his
five prior convictions in Illinois state court: (1) a 1995
conviction for Manufacture/Delivery of 1 to 15 Grams of
Cocaine; (2) 1996 conviction for Possession with Intent to
Deliver Other Amount of Narcotic Substance; (3) a 1996
conviction for Attempted Murder; (4) a 1996 conviction for
Aggravated Vehicular Hijacking - Weapon; and (5) a 2004
conviction for Attempted Armed Robbery. PSR ¶¶ 49,
also determined that Ellis' controlled substance
conviction under 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(C) (Count 3) qualified him as a career offender
under U.S.S.G. § 4B1.1(b)(1) based on four of the five
convictions that were predicates under the ACCA. PSR ¶
47, 60-62, 64.
further determined that Ellis was subject to a five-year
mandatory minimum sentence, to be served consecutively to any
other term of imprisonment, as a result of his conviction
under 18 U.S.C. § 924(c)(1)(A) for use of a firearm in
relation to drug trafficking (Count 4). PSR ¶ 107.
concluded that Ellis' total mandatory minimum term of
imprisonment was 20 years, and his advisory Guideline range
was 360 months to life imprisonment. PSR ¶¶ 107,
4, 2015, the Court held a sentencing hearing and adopted the
PSR sentencing determinations without change. Min. Entry
[Docket No. 89]; Statement Reasons [Docket No. 92] at 1. As a
result, Ellis was adjudicated an armed career criminal under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), as well as a career offender under U.S.S.G.
§ 4B1.1(b)(1). The Court imposed a 262-month sentence:
202 months on Counts 1 and 3, to be served concurrently, and
60 months on Count 4, to be served consecutively. Sentencing
J. [Docket No. 91] at 2. The sentence constituted a
substantial downward departure from the Guidelines range of
360 months to life. Statement Reasons at 1, 3.
appealed his conviction, arguing insufficient evidence and
evidentiary error. United States v Ellis, 817 F.3d
570 (8th Cir. 2016). On March 18, 2016, the Eighth Circuit
affirmed his conviction. Id. Ellis' requests for
rehearing and rehearing en banc were denied on April 20,
2016, and the mandate was issued on April 27, 2016.
Id.; Mandate [Docket No. 110].
March 16, 2017, Ellis filed the Initial 2255 Motion and
Motion for Appointment of Counsel. In the Initial 2255
Motion, Ellis argued that under the Supreme Court's
ruling in Mathis v. United States, 136 S.Ct. 2243
(2016), his two Illinois state court drug convictions and his
Illinois state court convictions for attempted murder and
attempted armed robbery do not qualify as predicate offenses
under the ACCA or the career offender provisions of U.S.S.G.
§ 4B1.1(b)(1). Ellis contended that the reason he had
not raised these arguments on appeal was that Mathis
was decided after his conviction was affirmed, and
Mathis introduced “a new law and statutory
interpretation.” Initial 2255 Mot. at 4.
April 28, 2017, the Government filed a Response [Docket No.
119], arguing that Ellis' claims are procedurally barred
for failure to raise them on direct appeal. The Government
also argues that even if the claims were not procedurally
barred they would nevertheless fail because Ellis'
arguments are based on a misapplication of Mathis.
17, 2017, Ellis filed a Motion for Extension of Time to Reply
to Government's Response [Docket No. 120]. The Court
granted the Motion and allowed Ellis until June 22, 2017 to
file his Reply. Order [Docket No. 121].
Ellis filed the Amended 2255 Motion and Second Motion for
Appointment of Counsel. Certif. Service [Docket No. 124-2].
The Amended 2255 Motion asserts a claim for ineffective
assistance of counsel and also argues that Ellis'
Illinois state court conviction for Aggravated Vehicular
Hijacking - Weapon is not a predicate offense under the ACCA
or the Career Offender provisions of the Sentencing
Guidelines. The Amended 2255 Motion does not address the
Government's arguments asserting that Ellis' prior
Illinois state court convictions are predicate offenses under
the ACCA and the Sentencing Guidelines.
U.S.C. § 2255 provides a prisoner in federal custody a
limited opportunity to collaterally attack the
constitutionality or legality of his sentence, as well as to
argue that “the court was without jurisdiction to
impose such a sentence.” Relief under Section 2255 is
reserved for correcting “a fundamental defect which
inherently results in a complete miscarriage of
justice” or “an omission inconsistent with the
rudimentary demands of fair procedure.” Hill v.
United States, 368 U.S. 424, 428 (1962).
Government argues that Ellis procedurally defaulted on his
claims by failing to raise them on direct appeal. A
defendant's failure to raise an issue on direct appeal
constitutes a procedural default barring him from raising it
for the first time in a § 2255 motion. Matthews v.
United States, 114 F.3d 112, 113 (8th Cir. 1997). This
procedural default may be overcome only if a defendant