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United States v. Ellis

United States District Court, D. Minnesota

September 7, 2017

United States of America, Plaintiff,
v.
Albert Terrell Ellis, a/k/a Alvin Ellis, Defendant. Civil No. 17-794 ADM

          Thomas Calhoun-Lopez, Assistant United States Attorney, United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.

          Albert Terrell Ellis, pro se.

          MEMORANDUM OPINION AND ORDER

          ANN D. MONTGOMERY U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This 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. 112][1] (“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 denied.

         II. BACKGROUND

         On July 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] at 1.[2]

         The 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, 60-62, 64.

         The PSR 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.[3]

         The PSR 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.

         The PSR 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, 108.

         On June 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.

         Ellis 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].

         On 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.

         On 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.

         On May 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].

         Subsequently, 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.

         III. DISCUSSION

         A. Section 2255

         28 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).

         B. Procedural Bar

         The 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 “can ...


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