United States District Court, W.D. Missouri, Western Division
QUINTON O. CANTON, Movant,
UNITED STATES OF AMERICA, Respondent. Crim. No. 10-00146-01-CR-W-FJG
Fernando J. Gaitan, Jr. United States District Judge.
before the Court is Movant's Motion under 28 U.S.C.
§ 2255 to Vacate, Set Aside, or Correct Sentence (Doc.
No. 1, filed on August 11, 2016).
25, 2010, movant was charged in a two-count indictment with
being a felon in possession of a firearm (Count One) and
ammunition (Count Two), in violation of §§
922(g)(1) and 924(a)(2). On April 27, 2011, movant pled
guilty to Count Two of the indictment, without a written plea
agreement. On September 12, 2011, the district court
sentenced movant to 180 months' imprisonment under 18
U.S.C. § 924(e), the Armed Career Criminal Act, with
five years of supervised release to follow.
appealed. The Eighth Circuit affirmed movant's sentence
on March 19, 2012, finding that movant's second degree
burglary convictions counted as violent felonies under the
ACCA. United States v. Canton, 464 Fed.Appx. 551,
552 (8th Cir. 2012). The Eighth Circuit further
found that movant's prior Missouri conviction for sale of
cocaine base qualified as a “serious drug
offense” under the ACCA. Id. at 553. The
Eighth Circuit further found that movant's sentence, to
the statutory minimum under the ACCA, did not constitute
cruel and unusual punishment under the Eighth Amendment to
the United States Constitution. Id.
March 25, 2013, movant filed his first pro se motion
to vacate, set aside, or correct his sentence, asserting that
counsel was ineffective for failure to file a petition for
writ of certiorari after the Eighth Circuit made its
decision. Movant asserted that his appeals counsel should
have filed a petition for writ of certiorari, asserting that
the decisions in Descamps v. United States, 570 U.S.
___, 133 S.Ct. 2276 (2013) and Alleyne v. United
States, 570 U.S. ___, 133 S.Ct. 2151 (2013) would have
an impact on his sentence. The Government responded on May
16, 2013 (Doc. No. 9), indicating (1) failure to file a
petition for writ of certiorari does not constitute
ineffective assistance counsel, in that due process does not
guarantee a constitutional right for litigants to the
assistance of counsel given that writ of certiorari is
discretionary, see Steele v. States, 518 F.3d 986,
988 (8th Cir. 2008); and (2) the outcomes of
Descamps and would have no impact on movant's
of filing reply suggestions to the government's brief,
movant filed a Motion to Supplement § 2255 Petition
Based upon Recent Decisions Announced by Supreme Court of the
United States (Doc. No. 13, filed on August 1, 2013). Movant
requested to supplement his original petition using the
recently-announced decisions in Descamps and
Alleyne. The government opposed (Doc. No. 19, filed
on November 4, 2013), indicating that (1) movant's new
arguments have nothing to do with ineffective assistance of
counsel; (2) the Descamps case does not apply
retroactively to movant's case; and (3) the California
burglary statute at issue in Descamps is
distinguishable from the Missouri burglary statute at issue
in movant's case. The government also argued that the
Alleyne decision does not require the issue of
predicate convictions to be submitted to the jury, as
Alleyne does not overrule Almendarez-Torres v.
United States, 523 U.S. 224 (1998), which removed prior
convictions from the class of facts which must be submitted
to a jury to increase a defendant's sentence.
January 17, 2014, the Court entered its order granting
movant's motion for leave to file a supplemental section
2255 motion, finding that the motion should be granted
because Descamps and Alleyne had not been
decided at the time of the filing movant's original
section 2255 motion. Order, Doc. No. 25.
March 3, 2014, movant filed his superseding section 2255
motion (Doc. No. 26). Instead of raising arguments related to
Descamps, however, movant indicated that (1) in
light of United States v. Burrage, 571 U.S. ___, 134
S.Ct. 881 (2014), any prior conviction that is used to
increase the minimum or maximum statutory punishment must be
submitted to a jury; and (2) his prior second degree burglary
convictions should not be considered violent felonies in
light of United States v. Boose, 739 F.3d 1185
(8th Cir. 2014), in which the Eighth Circuit found
that first degree battery in Arkansas is not a violent felony
for purposes of the ACCA. Movant filed supplemental authority
on April 4, 2014 (Doc. No. 31), again arguing that
Burrage applies to any factual predicate to a
sentence enhancement, including the fact of a prior
conviction. On August 29, 2014, the Court rejected the first
and the supplemental 2255 motions. The Court denied
movant's motion for reconsideration on January 14, 2015.
Movant filed a notice of appeal on February 10, 2015, and on
June 23, 2015, the Eighth Circuit denied his application for
certificate of appealability.
26, 2015, the Johnson opinion was released by the
Supreme Court, invalidating the residual clause of §
924(e). See Johnson v. United States, 135 S.Ct.
2551, 192 L.Ed.2d 569 (2015). On October 27, 2015, movant
filed a motion seeking permission to file a successive §
2255 motion based on Johnson. The Eighth Circuit
denied that request on March 16, 2016. Movant then filed a
second petition seeking leave to file a successive §
2255 motion, and the Eighth Circuit granted that petition on
August 5, 2016. The successive § 2255 currently pending
was filed on August 11, 2016. Movant argues that his sentence
is in excess of the maximum authorized by law, that he no
longer qualifies as an armed career criminal because one of
his convictions was for second degree burglary of an
inhabitable structure, which does not qualify as a
“generic burglary” under the ACCA. If that
conviction was not counted, movant would not have three prior
convictions qualifying as violent felonies under the ACCA.
Movant, therefore, asks this Court to vacate his previous
sentence of 180 months and him without application of the
motion under 28 U.S.C. § 2255 may present a collateral
attack to a sentence under the following grounds: (1) the
sentence was imposed in violation of the Constitution or laws
of the United States; (2) the court was without jurisdiction
to impose such sentence; (3) the sentence was in excess of
the maximum authorized by law; or (4) the sentence is
otherwise subject to collateral attack. Hill v. United
States, 368 U.S. 424, 426-27 (1962); 28 U.S.C. §
2255(a). A § 2255 motion is not a substitute for direct
appeal, and is not designed for complaints regarding simple
trial errors. Poor Thunder v. United States, 810
F.2d 817, 821 (8th Cir.1987).
Court has reviewed movant's motion and memorandum in
support (Doc. No. 1), respondent's opposition (Doc. No.
7), movant's reply (Doc. No. 9), as well as the record in
the underlying criminal case. Upon that review, ...