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Coleman v. United States

United States District Court, E.D. Missouri, Southeastern Division

September 27, 2016

PENNY COLEMAN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          STEPHEN N. LIMBAUGH, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on a motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence by Penny Coleman, a person in federal custody. On October 20, 2014, Coleman plead guilty before this Court to the offense of felon in possession of a firearm and, on January 20, 2015, this Court sentenced Coleman to the Bureau of Prisons for a term of 180 months, the mandatory minimum sentence. Simmons' § 2255 motion is fully briefed and ripe for disposition.

         Penny Coleman has filed her first Petition under 28 U.S.C. § 2255, alleging that she was improperly sentenced as an Armed Career Criminal pursuant to 18 U.S.C. § 924(e). Coleman argues that the retroactive application of the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015) invalidates her classification as an Armed Career Criminal. Coleman does not set out any factual basis for her claim. She does not provide any argument that a particular conviction was improperly classified as a violent felony or serious drug offense. Coleman also claims that her sentence was enhanced for a conviction under 18 U.S.C. § 924(c). As a preliminary matter, the record will show that Coleman was neither charged with nor convicted of a violation of 18 U.S.C. § 924(c), so that portion her complaint is easily disposed of. It is clear that Coleman's predicate Armed Career Criminal convictions were properly classified as violent felonies and serious drug offenses and would still be so classified if she were to be re-sentenced today. The holding of Johnson has no effect on Coleman's sentence.

         Coleman actually received two sentences from this Court; one of 180 months for being a Felon in Possession of a Firearm (Case Number 1:14 CR 00029 SNLJ) and another 180 month sentence for Distribution of Cocaine Base (Case Number 1:14 CR 00080 SNLJ). Coleman's § 2255 petition only complains about the sentence she received in Case Number 1:14 CR 00029 for the firearm case. She does not contend that her equal, 180 month sentence for her drug conviction was imposed improperly. Because Coleman does not contend that her sentence in Case Number 1:14 CR 00080 SNLJ was incorrectly applied, there is no need to address any issue related to that conviction or sentence.

         For the reasons set forth below, the Court will deny Coleman's Petition.

         PROCEDURAL HISTORY

         A. Underlying Conviction

         On April 23, 2014, a Grand Jury in the Eastern District of Missouri, Southeastern Division, returned a one-count indictment against Penny Coleman, charging her with Felon in Possession of a Firearm in violation of 18 U.S.C. § 922(g)(1). (DCD 1, Case Number 1:14 CR 00029) On August 21, 2014, the grand jury returned a second indictment against Penny Coleman, charging her with Distribution of Cocaine Base in violation of 21 U.S.C. § 841(a). (DCD 1, Case Number 1:14 CR 00080 SNLJ) On October 20, 2014, Coleman appeared with her attorney and pled guilty to the charge made in each Indictment pursuant to a written plea agreement. (DCD 48, Case Number1:14 CR 00029; DCD 24, Case Number 1:14 CR 00080 SNLJ)

         Following the pleas, a combined Presentence Investigation Report (“P.S.R.”) was prepared for both Indictments. The P.S.R. recommended that Coleman be classified as an Armed Career Criminal (“ACC”) under 18 U.S.C. § 924(e), otherwise known as the Armed Career Criminal Act (“ACCA”). The P.S.R. recognized three convictions of Coleman's that qualified as violent felonies or serious drug offenses. (P.S.R. ¶ 46) (“. . . the defendant has at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions, Aggravated Battery/Great Bodily Harm and Aggravated Battery/Weapon/No Firearm, in Docket No. 95CR0314104, and Possession With Intent to Distribute a Controlled Substance (two counts), Docket No. 06MI-CR00653. Therefore, the defendant is an armed career criminal and subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).”) The PSR concluded that the Total Offense Level for both counts was 31. (P.S.R. ¶ 49) Coleman's Criminal History Category was IV and the resulting sentencing range was 180 months. (P.S.R. ¶ 66, 99)

         Coleman was determined to be an ACC based on the following felony convictions:

(1) Coleman was convicted on April 28, 1995, of the felony of Illinois Aggravated Battery/Great Bodily Harm and Aggravated Battery/Weapon/No Firearm in the Circuit Court of Cook County, Illinois. (P.S.R. & 52 and Exh. 1)
(2) Coleman was convicted on December 11, 2008, of the felony of Missouri Possession With Intent to Distribute a Controlled Substance in the Circuit Court of Mississippi County, Missouri, in two separate counts. (P.S.R. ¶ 58 and Exh. 2)

         Coleman had other felony convictions, but those convictions are not relevant to any discussion of whether she is an Armed Career Criminal.

         On January 20, 2015, this Court found Coleman to be an Armed Career Criminal and sentenced her to a term of imprisonment of 180 months for the Felon in Possession of a Firearm conviction. This Court also sentenced Coleman to a term of imprisonment of 180 months for the Cocaine Base Indictment. Each sentence was ordered to run concurrently. Coleman did not appeal her conviction or sentence.

         B. Previous Post-Conviction Motion.

         Coleman had not filed any habeas petitions prior to the current one. This petition is considered as her “first” § 2255 petition.

         CURRENT CLAIM

         In her current Application for Leave to File a Second Petition under 28 U.S.C. § 2255, Coleman makes a vague allegation that the holdings of Johnson and Welch should be applied retroactively to reduce her sentences. Coleman asserts that she has the right to collateral review of her ACCA sentence pursuant to the holdings of Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). Coleman does not explain exactly how these cases affect her sentences, either by pointing out a misclassification of a prior conviction as a violent felony, or any other means.

         The problem with Coleman's request is that the holding of Johnson only permitted attacks on ACCA sentences that were imposed due to the application of the residual clause definition of a violent felony. All other reasons for the classification of a prior conviction as a violent felony, such as convictions under the “elements” clause crimes or enumerated crimes, are still violent felony predicate convictions for ACCA purposes, even after the holding of Johnson. Serious drug offense convictions, of which Coleman has two, are also still considered to be ACCA predicate convictions even after the holding of Johnson. Coleman's violent felony conviction for Illinois Aggravated Battery was always elements clause violent felony. None of Coleman's ACCA predicate convictions were so classified due to the residual clause of the definition of a violent felony, the only basis for a challenge to a sentence under Johnson.

         DISCUSSION

         A. Required Threshold Showing for Relief.

         A habeas petition filed by a federal prisoner must follow the requirements of 28 U.S.C. § 2255 in order to be considered. § 2255(a) permits a federal prisoner to file a habeas petition on the grounds that their sentence was “imposed in violation of the Constitution or laws of the United States, or that the Court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” Normally, the filing of such petitions is limited to a one-year period after the defendant was originally sentenced. 28 U.S.C. § 2255(f)(1). The Government agrees that prisoners sentenced as Armed Career Criminals under 18 U.S.C. § 924(e) may file habeas petitions under § 2255 beyond the one-year limitation period if they can demonstrate that their sentences were imposed due to the now-invalidated residual clause definition ...


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