United States District Court, D. Minnesota
Patrick J. Schiltz United States District Judge.
matter is before the Court on defendant Corey Fogg's
motion to vacate, set aside, or correct his sentence under 28
U.S.C. § 2255. Fogg argues that this Court erred when,
at Fogg's sentencing, it found that he had “three
previous convictions . . . for a violent felony” under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e). For the reasons that follow, Fogg's motion
2015, a jury convicted Fogg of possessing a firearm as a
felon. See ECF No. 84. This offense carried a
maximum sentence of 10 years, see 18 U.S.C. §
924(a)(2), unless Fogg had three or more prior convictions
for “a violent felony or a serious drug offense,
” 18 U.S.C. § 924(e)(1). If that were true, then
the ACCA provided for a mandatory minimum sentence of 15
years and a maximum sentence of life imprisonment.
See 18 U.S.C. § 924(e)(1).
sentencing, Fogg did not dispute that his prior convictions
for first-degree manslaughter (in violation of Minn. Stat.
§ 609.20, subd. 2) and simple robbery (in violation of
Minn. Stat. § 609.24) were violent felonies for ACCA
purposes. But Fogg argued that his prior conviction for
attempted drive-by shooting (in violation of Minn. Stat.
§ 609.66, subd. 1e) was not a violent felony.
Court disagreed. The Court concluded that Minnesota's
drive-by shooting statute was divisible, see ECF No.
108 at 20:16-24:2; found that Fogg was convicted under
subsection (b) of the statute, see Id. at 24:3-11;
held that subsection (b) defined a violent felony for ACCA
purposes, see Id. at 24:11-13; and sentenced Fogg to
235 months in prison, the bottom of the range recommended by
the United States Sentencing Guidelines, see ECF No.
102 at 2.
appeal, Fogg repeated his argument that his attempted
drive-by shooting conviction was not a violent felony under
the ACCA. See Appellant's Brief at 11-19,
United States v. Fogg, 836 F.3d 951 (8th Cir. 2016)
(No. 15-3078), 2016 WL 80230. The United States Court of
Appeals for the Eighth Circuit rejected Fogg's argument
and affirmed Fogg's sentence. See Fogg, 836 F.3d
then brought this § 2255 motion. Fogg now argues that
his conviction for simple robbery is not a violent felony for
ACCA purposes. See ECF No. 126 at 23
(“Fogg argues that his robbery conviction is not a
violent felony.”); id. at 27
(“[Fogg's] robbery conviction does not qualify as a
violent felony . . . .”). There are two problems with
Fogg's claim is procedurally defaulted. “A §
2255 motion is not a substitute for direct appeal, ” so
a defendant “may not obtain § 2255 relief for
‘unappealed errors to which no contemporaneous
objection was made' unless he can show both cause and
prejudice.” United States v. Wilson, 997 F.2d
429, 431 (8th Cir. 1993) (citations omitted). In other words,
“[c]laims not made during district court proceedings or
on direct appeal are procedurally defaulted and may not be
raised for the first time in a § 2255 motion.”
United States v. Hamilton, 604 F.3d 572, 574 (8th
Cir. 2010). In this case, Fogg did not argue at sentencing or
on appeal that his simple-robbery conviction was not a
violent felony for ACCA purposes. Fogg makes no attempt to
establish cause or prejudice for that omission. Therefore,
Fogg cannot raise that argument for the first time in a
§ 2255 motion.
Fogg's claim is meritless. Minnesota's crime of
simple robbery is a violent felony for ACCA purposes. It was
a violent felony before Mathis. See United
States v. Raymond, 778 F.3d 716, 717 (8th Cir. 2015)
(per curiam). And it remains a violent felony after
Mathis. See United States v. Libby, 880
F.3d 1011, 1015-16 (8th Cir. 2018).
on the foregoing, and on all of the files, records, and
proceedings herein, IT IS HEREBY ORDERED THAT:
1. Defendant Corey Fogg's motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255 [ECF No.
125] is DENIED.
2. No certificate of appealability will be ...