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Kemp v. United States

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

June 1, 2017

BOBBY JOE KEMP, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          CAROL E. JACKSON UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the motion of Bobby Joe Kemp to vacate, set aside, or correct sentence, pursuant to 28 U.S.C. § 2255.[1] The United States has filed a response in opposition.

         I. Background

         On May 20, 2013, Kemp pled guilty to conspiracy to distribute 500 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 (Count I) and possessing a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g) (Count II). The penalties for the offense in Count I included a mandatory minimum sentence of 10 years' imprisonment. See 21 U.S.C. § 841(b)(1)(A). Based on his prior felony convictions, Kemp was found to be a career offender with respect to Count I (see U.S.S.G. §4B1.1) and an armed career criminal with respect to Count II (see 18 U.S.C. §924(e)(1) and U.S.S.G. §4B1.4(a)). As a result of the armed career criminal designation, Kemp faced a mandatory minimum sentence of 15 years' imprisonment for the firearm offense. On November 26, 2013, Kemp was sentenced to concurrent terms of 210 months' imprisonment.[2] He did not appeal the judgment.

         II. Discussion

         A. Ineffective Assistance of Counsel

         In the instant motion, Kemp asserts that he was denied effective assistance of counsel. To prevail on an ineffective assistance claim, a movant must show that his attorney's performance fell below an objective standard of reasonableness and that he was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 688 (1984). With respect to the first Strickland prong, there exists a strong presumption that counsel's conduct falls within the wide range of professionally reasonable assistance. Id. at 689. In Strickland, the Supreme Court described the standard for determining an ineffective assistance claim:

[A] court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.

Strickland, 466 U.S. at 690.

         To establish the ''prejudice'' prong, the movant must show ''that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.'' Id. at 694. The failure to show prejudice is dispositive, and a court need not address the reasonableness of counsel's performance in the absence of prejudice. United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996).

         Ground One

         Kemp's first claim is that defense counsel's failure to challenge the armed career criminal designation in light of Descamps v. United States, __U.S.__, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), constituted ineffective assistance. At the time he was sentenced, Kemp had three Missouri felony convictions for burglary second degree. He contends that after the ruling in Descamps, burglary second degree no longer qualifies as a violent felony for purposes of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), and U.S.S.G. § 4B1.4(a).

         In Descamps, the Supreme Court held that a sentencing court, in determining whether a defendant's prior conviction qualifies as a predicate offense under the ACCA, “may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements.” 133 S.Ct. at 2282. The defendant in Descamps had a prior conviction for burglary under California law. The Supreme Court ruled that because a conviction under the California statute “is never for generic burglary” the defendant's conviction was not a predicate violent felony under the ACCA. Id. at 2293.

         In United States v. Olsson, 713 F.3d. 441 (8th Cir. 2013), the Eighth Circuit held that a defendant's Missouri conviction for burglary second degree constituted a “crime of violence” for purposes of the career offender guideline, U.S.S.G. § 4B1.1. Id. at 449-50. The defendant sought review by the United States Supreme Court which remanded the case to the appellate court for reconsideration in light of Descamps. Olsson v. United States, __U.S.__, 134 S.Ct. 530, 187 L.Ed.2d 361 (2013). On remand, the court of appeals found that “the basic elements of the Missouri second-degree burglary statute are the same as those of the generic ...


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