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United States v. Douglas

United States District Court, D. Minnesota

October 19, 2017



          Andrew S. Dunne, UNITED STATES ATTORNEY'S OFFICE, for plaintiff.

          Andrew S. Garvis, KOCH & GARVIS, LLC, for defendant.

          Patrick J. Schiltz United States District Judge

         A jury 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).

         This 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 career offender.

         The 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.

         I. BACKGROUND

         In 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. ¶ 46.

         II. ANALYSIS

         Douglas 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.

         The Court agrees with the government that the latter two arguments are procedurally barred.[1] 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.[2] 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.[3] See Fletcher v. United States, 858 F.3d 501, 505-06 (8th Cir. 2017).

         Douglas 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 procedurally defaulted.

         A 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.

         With 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 . . . .”[4]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 ...

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