United States District Court, D. Minnesota
S. Dunne, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.
S. Garvis, KOCH & GARVIS, LLC, for defendant.
Patrick J. Schiltz United States District Judge
convicted defendant John Douglas of being a felon in
possession of a firearm. ECF No. 64. At sentencing, the Court
found that Douglas was a “career offender” within
the meaning of § 4B1.1 of the United States Sentencing
Guidelines. The Court also found that Douglas was subject to
an enhanced sentence under the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), because he had
at least three prior convictions for “violent
felon[ies].” The Court then sentenced Douglas to 240
months in prison, which represented a substantial downward
variance from Douglas's Guidelines range of 360 months to
life. ECF Nos. 112-13. The United States Court of Appeals for
the Eighth Circuit affirmed Douglas's conviction on
direct appeal. United States v. Douglas, 744 F.3d
1065 (8th Cir. 2014).
matter is before the Court on Douglas's motion to vacate,
set aside, or correct his sentence under 28 U.S.C. §
2255. In his original motion, Douglas raised various claims
of ineffective assistance of counsel. In later briefing,
Douglas argued that, under Johnson v. United States,
135 S.Ct. 2551 (2015), his felon-in-possession offense no
longer qualifies as a “crime of violence” under
§ 4B1.1 of the Guidelines and that therefore he is not a
Court rejected all of Douglas's ineffective-assistance
claims, see ECF No. 164, and later rejected
Douglas's Johnson claim on the basis of
Beckles v. United States, 137 S.Ct. 886 (2017),
see ECF No. 167. In the meantime, Douglas requested
an opportunity to brief the impact of Mathis v. United
States, 136 S.Ct. 2243 (2016), on his designation as an
armed career criminal under 18 U.S.C. § 924(e). The
Court granted Douglas's request. ECF No. 167. Having
received the parties' supplemental briefing, the Court
rejects the remainder of Douglas's claims.
Douglas's presentence investigation report
(“PSR”), six of his prior offenses were found to
qualify as violent felonies for purposes of the ACCA. PSR
¶ 26. Two of these prior offenses were burglaries that
the government concedes no longer qualify as violent
felonies. That leaves four potentially qualifying offenses:
two first-degree aggravated robberies under Minn. Stat.
§ 609.245, subd. 1, and two second-degree assaults under
Minn. Stat. § 609.222. Douglas committed three of these
four offenses-the two robberies and one of the assaults-on
September 25, 1998. PSR ¶ 45. Douglas committed the
other of the assaults in February 2006. Id. ¶
concedes that the February 2006 second-degree assault
qualifies as a violent felony under the ACCA. He contends,
however, that (1) his aggravated-robbery convictions do not
qualify as violent felonies under the ACCA; (2) even if the
aggravated robberies otherwise qualify as violent felonies,
they cannot both be counted as ACCA predicates because they
were not “committed on occasions different from one
another, ” as required by § 924(e)(1); and (3) his
conviction for the September 1998 second-degree assault is
invalid because he was never actually charged with that
crime. See ECF Nos. 170, 177.
Court agrees with the government that the latter two
arguments are procedurally barred. At no time during sentencing
proceedings in this Court or on direct appeal did Douglas
argue either that the two aggravated robberies were not
“committed on occasions different from one
another” or that he was never actually charged with the
1998 second-degree assault to which he pleaded
guilty. These arguments are not based on any new
Supreme Court decision or other recent change in the law.
See, e.g., United States v. Hamell, 3 F.3d
1187, 1191 (8th Cir. 1993) (examining whether offenses
committed within minutes of each other counted as separate
offenses under § 924(e)(1)); Skordalos v. United
States, No. RDB-08-1049, 2009 WL 124302, at *2 (D. Md.
Jan. 15, 2009) (noting argument that the defendant had not
actually been convicted of a prior offense). Because Douglas
could have, but did not, raise these claims at sentencing or
on direct appeal, they are procedurally
defaulted. See Fletcher v. United States,
858 F.3d 501, 505-06 (8th Cir. 2017).
points out that, before he was sentenced, he submitted a pro
se letter to the probation office contesting his
classification as an armed career criminal and stating that,
after excluding his third-degree burglary conviction, he had
only two other qualifying convictions. See ECF No.
178-1 at 6. This submission is obviously insufficient to
raise the arguments that Douglas now wishes to make. Even if
Douglas had submitted that letter to this Court during his
sentencing proceedings-and even if the Court had been willing
to entertain a pro se submission from a represented defendant
(which is not the Court's practice)-Douglas's letter
did not identify any reason why his aggravated-robbery and
second-degree assault convictions would not qualify as
predicate offenses. And even if it had, Douglas did not raise
these issues on appeal. They are therefore clearly
defendant may overcome a procedural default by showing cause
and prejudice or that he is “‘actually
innocent.'” Fletcher, 858 F.3d at 506
(citation omitted). Douglas does not attempt to argue either
of these grounds for overcoming his default-and the Court has
found on multiple occasions that Douglas is not actually
innocent-and therefore these claims are rejected.
respect to Douglas's remaining claim that his
aggravated-robbery convictions do not qualify as predicate
ACCA offenses: It appears that this claim is time barred.
Douglas did not raise it until well after his conviction
became final under 28 U.S.C. § 2255(f)(1). The only way
that this claim could be timely, then, is if Mathis,
on which Douglas purports to base the claim, recognized a new
right that is “retroactively applicable to cases on
collateral review . . . .”See 28 U.S.C.
§ 2255(f)(3). Again, however, because the government
does not raise the limitations issue nor address the
retroactivity of Mathis, the ...