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Shepard v. United States

United States District Court, W.D. Missouri, Western Division

October 23, 2014

GLEN R. SHEPARD, Movant,
v.
UNITED STATES OF AMERICA, Respondent. Crim. No. 06-00384-01-CR-W-ODS.

ORDER AND OPINION (1) DENYING RESPONDENT'S MOTION TO DISMISS, (2) DENYING MOVANT'S REQUEST FOR POSTCONVICTION RELIEF AND (3) DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

ORTRIE D. SMITH, Senior District Judge.

Pending is the Government's motion to dismiss, which contends Movant's request for postconviction relief is untimely. The Court denies the Government's motion but rules in favor of the Government on the merits. The Court also declines to issue a Certificate of Appealability.

I.

Movant was charged in a Superseding Indictment with one count each of being a felon in possession of ammunition and being an unlawful methamphetamine user in possession of a firearm, both in violation of provisions in 18 U.S.C. § 922. The Superseding Indictment further alleged Movant was an armed career criminal ("ACC") under 18 U.S.C. § 924(e)(1). Trial commenced, but Movant pleaded guilty to both counts after opening statements were delivered.

Under section 924(e)(1), a defendant is an armed career criminal if he is convicted of a firearm-related offense under section 922 and has three previous convictions "for a violent felony or a serious drug offense, or both, committed on occasions different from one another...." The Presentence Investigation Report ("PSR") identified five qualifying felony convictions, two more than necessary to support Movant's classification as an armed career criminal. The five convictions were:

• Jackson County, Missouri conviction for second degree burglary in
• Jackson County, Missouri conviction for aggravated assault
• Cass County, Missouri conviction for possession of a controlled substance with intent to distribute and possession of a controlled substance with intent to sell
• Jackson County, Missouri conviction for first degree tampering
• Johnson County, Kansas conviction for involuntary manslaughter

The sentencing hearing was held on June 26, 2008. The Court overruled Movant's objection to his classification as an armed career criminal and calculated Movant's adjusted offense level to be 30 and his Criminal History Category to be VI (based on a total of fourteen criminal history points). This yielded a guideline range of 168 to 210 months' imprisonment, but Movant's status as an armed career criminal triggered a statutorily-mandated minimum sentence of 180 months. The Court sentenced Movant to 180 months.

Movant appealed, and among the issues raised was whether Movant's prior convictions for manslaughter, burglary, and auto tampering were violent felonies for purposes of the statute. The Court of Appeals rejected Movant's arguments with respect to the manslaughter and burglary convictions. The court then noted that this meant Movant had four qualifying convictions, so there was no need to address whether the tampering conviction was a violent felony. Movant's sentence was affirmed. United States v. Shepard, No. 08-2469 (8th Cir. Aug. 6, 2009).

II.

Movant initiated this proceeding on or about May 1, 2014 (depending on when he placed the motion in the prison mail system), alleging that the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), demonstrated that his convictions for manslaughter, burglary, and auto tampering were not violent felonies. The Government contends the motion for postconviction relief is untimely because it was not filed within one year of the conviction becoming final as required by 28 U.S.C. § 2255(f). However, that provision states the one-year period runs from the latest of four events, one of which is "the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review." 28 U.S.C. § 2255(f)(3). The Government recognizes Movant relies on this provision but does not argue it is inapplicable. The Government merely "does not concede that Descamps is a retroactive right, " Doc. # 5 at 6, but at the same time does not argue that it is not retroactive - which means the issue of section 22255(f)(3)'s applicability has not been fully addressed by the parties. Instead, the Government contends Descamps is ...


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