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Dugger v. United States

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

March 31, 2017

TIMOTHY DUGGER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION, MEMORANDUM AND ORDER

          HENRY EDWARD AUTREY UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on Petitioner's motion to Vacate, Set Aside or Correct Sentence [Doc. #1] pursuant to 28 U.S.C. § 2255, wherein he asserts Johnson v. United States, 135 S.Ct. 2551 (2015) is applicable. The United States of America has filed a Response to Petitioner's Habeas Petition [Doc. #8]. Petitioner has filed a Traverse to Government's Response to Petitioners 28 U.S, C. §2255 [Doc. #9].For the reasons set forth below the Motion will be denied.

         Facts and Background

         On May 7, 2003, Petitioner entered a plea of guilty to the offense of Felon in Possession of a Firearm in violation of 18, U.S.C. § 922(g)(1). A Presentence Investigation Report was prepared. That report recommended that Petitioner be sentenced as an Armed Career Criminal (“ACC”) under the Armed Career Criminal Act (“ACCA”) (18 U.S.C. § 924(e)) and concluded that the Total Offense Level was 30. His Criminal History Category was determined to be VI and the resulting sentencing range was 180 to 210 months. He was determined to be an ACC based on the existence of convictions for Second Degree Burglary, a felony, on October 5, 1998, in the Circuit Court of Ripley County, Missouri, in Case Number CR598-612FX; Second Degree Burglary, a felony, on December 20, 1999, in the Circuit Court of Ripley County, Missouri, in Case Number CR599-662FX; and Second Degree Burglary, a felony, on August 19, 2002, in the Circuit Court of Ripley County, Missouri, in Case Number CR502-338FX . Offense Level of 31.

         The court conducted a sentencing hearing on August 5, 2003 and found Petitioner to be an Armed Career Criminal and sentenced him to a term of imprisonment of 180 months. There were no appeals of his conviction or sentence and no previously filed petitions under § 2255.

         Petitioner's Claim

         Petitioner claims that he is entitled to relief under the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). He argues that the Missouri burglary statute is overbroad and may not be used to classify a conviction under that statute as a violent felony. Petitioner has three convictions for Missouri Second Degree Burglary of buildings

         Discussion

         In Johnson v. United States, 135 S.Ct. 2551 (2015), the Supreme Court held that the residual clause in the definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), is unconstitutionally vague. The Supreme Court has since determined that Johnson announced a new substantive rule of constitutional law that applies retroactively on collateral review in cases involving ACCA-enhanced sentences. United States v. Welch, 136 S.Ct. 1257 (2016). However, the Court's holding in Welch that Johnson applies retroactively in ACCA cases on collateral review does not govern the separate question of whether Johnson applies retroactively to claims based on the Sentencing Guidelines.

         Title 18, United States Code, Section § 922(g)(1) provides that a person who has been previously convicted of a felony is prohibited from possessing a firearm or ammunition that has affected interstate commerce. Any person who unlawfully possesses a firearm in violation of this section is subject to a term of imprisonment of up to ten years. 18 U.S.C. § 924(d). However, the ACCA provides that any defendant convicted in federal court of being a felon in possession of firearms and/or ammunition and who has three prior felony convictions for violent felonies and/or serious drug offenses must receive an enhanced punishment of a maximum of life and a minimum term of imprisonment of fifteen years. 18 U.S.C. § 924(e).

A “violent felony” is defined as:
(B) the term “violent felony” means 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 ...

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