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McCoy v. United States

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

March 13, 2017

DUANE MCCOY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM AND ORDER

          RODNEY W. SIPPEL, UNITED STATES DISTRICT JUDGE

         Petitioner Duane McCoy brings a motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, arguing that under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), he is no longer subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). See 18 U.S.C. § 924(e). The United States Attorney argues McCoy is not entitled to Johnson relief because his prior convictions remain predicate ACCA convictions. Because McCoy still has three predicate ACCA convictions, I will deny his motion.

         BACKGROUND

         On May 2, 2013, McCoy pleaded guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). See United States v. Duane McCoy, Case No. 4:12 CR 416 RWS (E.D. Mo.). In McCoy's Presentence Investigation Report (PSR), the United States Probation Office indicated McCoy had three prior convictions for violent felonies that made him subject to an enhanced sentence under the ACCA, including, as relevant to this case, assault on a law enforcement officer - first degree, Mo. Rev. Stat. § 565.081, and violence to an employee of the Department of Corrections by an inmate, Mo. Rev. Stat. § 217.385.1.[1]

         Under the ACCA, a defendant who violates 18 U.S.C. § 922(g) and has three prior convictions for a violent felony is subject to a 15-year mandatory minimum sentence. See 18 U.S.C. § 924(e). The term “violent felony” is defined for ACCA purposes as “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” Id. § 924(e)(2)(B). In its 2015 Johnson decision, the Supreme Court held that imposing an increased sentence under the “otherwise” clause of subsection ii (the “residual clause”) violates due process. See 135 S.Ct. at 2563.

         At McCoy's August 5, 2013 sentencing hearing, I adopted the PSR, found McCoy qualified as an armed career criminal under § 924(e), and imposed a 180-month sentence. On April 22, 2016, McCoy filed a motion to vacate per Johnson, and on June 23, 2016, he filed an amended motion to vacate. In his petition, McCoy argues that post-Johnson, he is no longer an armed career criminal because neither assault on a law enforcement officer nor violence to an employee of the Department of Corrections categorically qualifies as a violent felony.

         I referred the matter to the United States Probation Office for the Eastern District of Missouri to prepare a Resentencing Report in response to McCoy's Johnson claims. The Probation Office recommended no change to McCoy's total offense level computation based on its conclusion that he remained an armed career criminal. The U.S. Attorney filed a statement of no objection to the Resentencing Report. McCoy objected to the Resentencing Report, again arguing he does not have three qualifying predicates because assault on a law enforcement officer and violence to an employee of the Department Of Corrections do not qualify as predicate convictions.[2] The Probation Office filed a final Resentencing Report, maintaining its position that McCoy is not entitled to relief under Johnson. The U.S. Attorney filed its response to McCoy's § 2255 petition and McCoy filed a reply. The matter is now fully briefed.

         ANALYSIS

         Neither of McCoy's challenged prior convictions are enumerated offenses under 18 U.S.C. § 924(e)(2)(B)(ii). As a result, to qualify as predicate convictions, both must have as an element “the use, attempted use, or threatened use of physical force against the person of another.” Id. § 924(e)(2)(B)(i). “Physical force ‘means violent force-that is, force capable of causing physical pain or injury to another person.'” United States v. Jordan, 812 F.3d 1183, 1186 (8th Cir. 2016) (quoting Curtis Johnson v. United States, 559 U.S. 133, 140 (2010)). I may only consider the elements of the offense-not the underlying facts of the conviction-to determine if a defendant's prior conviction qualifies as a predicate conviction. See Descamps v. United States, 133 S.Ct. 2276, 2293 (2013). McCoy bears the burden of showing he is entitled to relief. See Givens v. United States, 2016 WL 7242162, at *2 (E.D. Mo. Dec. 15, 2016).[3]

         Assault of a Law Enforcement Officer - First Degree

         A person commits the crime of assault of a law enforcement officer in the first degree under Missouri law “if such person attempts to kill or knowingly causes or attempts to cause serious physical injury to a law enforcement officer.” Mo. Rev. Stat. § 565.081.1, repealed by L. 2014 S.B. 491 § A, eff. Jan. 1, 2017.[4]While the question of whether a conviction under § 565.081 serves as a predicate ACCA conviction is a question of federal law, I look to Missouri law to determine the elements of the crime, as I am “bound by the [Missouri] Supreme Court's interpretation of state law, including its determination of the elements” of state crimes. Curtis Johnson, 559 U.S. at 138; see also Mathis v. United States, 136 S.Ct. 2243, 2250 (2016); United States v. Thomas, 838 F.3d 926, 930 n.3 (8th Cir. 2016) (per curiam) (“Although we are not bound by Arkansas state courts' definition of ‘physical force' as that term is used in the Guidelines, we are bound by their interpretation of what [Ark. Code Ann.] § 5-13-201(a)(1) requires.”). To the extent the Missouri Supreme Court has not addressed the elements of § 565.081, I also look to decisions from the intermediate state courts for guidance in interpreting Missouri law.

         To convict under § 565.081, the state must prove the defendant knew or was aware that the person he injured or attempted to kill or injure was a law enforcement officer. State v. Reed, 402 S.W.3d 146, 150 (Mo.Ct.App. 2013). To convict for causing serious physical injury, the state must prove the defendant acted knowingly and caused the type of injury required by the statute, which is “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” Mo. Rev. Stat. § 556.061(28) (2008); State v. Ward, 273 S.W.3d 43, 46 (Mo.Ct.App. 2008). To convict for attempting to kill or attempting to cause serious physical injury, the state must prove “a very specific intent . . . to accomplish that objective.” Reed, 402 S.W.3d at 151; see also Ward, 273 S.W.3d at 46 (indicating the mens rea needed to prove attempt is higher than that needed to convict the defendant of the completed substantive offense).

         “Attempt” has two elements: “(1) the defendant has the purpose to commit the underlying offense, and (2) the doing of an act which is a substantial step toward the commission of that offense.” State v. Winthrow, 8 S.W.3d 75, 78 (Mo. banc 1999), modified on different grounds by State v. Claycomb, 470 S.W.3d 358 (Mo. banc 2015). “‘A “substantial step” is conduct which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense.'” Id. (quoting Mo. Rev. Stat. § 564.011). Intent for purposes of § 565.081 is measured “by whether or not a reasonable juror might have found that [the defendant's] conduct strongly corroborated the firmness of his purpose to kill or cause serious injury to [the intended victim(s)].” Reed, 402 S.W.3d at 152 (alterations in original) (quotation marks omitted).

         McCoy first argues that a conviction for knowingly causing serious physical injury does not qualify as an ACCA violent felony because it is possible to cause serious physical injury without the use, attempted use, or threatened use of violent physical force. The Eighth Circuit has rejected this argument. “‘[P]hysical force' means force ‘capable of causing physical pain or injury to another person, ' [Curtis] Johnson, 559 U.S. at 140, and ‘it is impossible to cause bodily injury without using force “capable of” producing that result.'” United States v. Winston, 845 F.3d 876, 878 (8th Cir. 2017) (quoting United States v. Castleman, 134 S.Ct. 1405, 1416-17 (2014) (Scalia, J., concurring)); see also United States v. Rice, 813 F.3d 704, 706 (8th Cir.) cert. denied, 137 S.Ct. 59 (2016); United States v. Headbird, 832 F.3d 844, 847 (8th Cir. 2016). “Serious physical injury” for § 565.081 purposes is “physical injury that creates a substantial risk of death or that causes serious disfigurement or protracted loss or impairment of the function of any part of the body.” Mo. Rev. Stat. § 556.061(28) (2008). Because it is “impossible to cause bodily injury without using force ‘capable of' producing that result, ” in ...


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