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Olsson v. United States

United States District Court, W.D. Missouri, Central Division

June 28, 2017

MATTHEW RAYMOND OLSSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Fernando J. Gaitan, Jr. United States District Judge.

         Currently pending before the Court is Olsson's Amended Motion to Vacate, Set Aside or Correct His Sentence (Do. # 6); United States' Motion to Lift Stay and Deny Pending §2255 Motion on the Merits (Doc. # 16) and Olsson's Motion for Leave to File Second Amended §2255 Motion (Doc. # 19).

         I. BACKGROUND

         Olsson was charged in a superseding indictment with one count of conspiracy to distribute and possess with intent to distribute cocaine, and one count of possession with intent to distribute cocaine in violation of 21 U.S.C. §§ 846 and 841(a)(1). Olsson proceeded to trial and was convicted on September 29, 2011. A presentence investigation report (“PSR”) was prepared which recommended that Olsson be found to be a career offender under U.S.S.G. § 4B1.1(a). The PSR found that Olsson had prior convictions for burglary, promoting child pornography and possession with intent to distribute a controlled substance. Olsson objected to application of the career offender designation, but these objections were overruled at sentencing. The Guideline range was 360 months to life imprisonment. However, the court varied downward and imposed a sentence of 180 months on each count, to run concurrently.

         Olsson appealed and raised two issues: 1) the district court improperly limited his cross-examination of a government witness and 2) the Court erred in finding that his prior convictions qualify as crimes of violence for sentencing purposes. On April 26, 2013, the Eighth Circuit affirmed Olsson's conviction and sentence. Olsson was unsuccessful in seeking rehearing, but the United States Supreme Court granted his petition for certiorari, vacated his judgment and remanded the case to the Eighth Circuit in light of the recent decision in Descamps v. United States, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013). After applying Descamps, the Eighth Circuit found that Olsson's prior conviction for second degree burglary qualified as a “crime of violence” under the categorical approach and again affirmed his sentence and conviction. Olsson again sought rehearing and certiorari relief in the Court of Appeals and the Supreme Court. On October 6, 2014, the Supreme Court denied Olsson's petition for certiorari relief. On October 6, 2015, Olsson filed his initial §2255 Motion to Vacate, Set Aside or Correct His Sentence. On November 6, 2015, Olsson filed his first Amended §2255 Motion, asserting that the claims raised in the Amended Motion relate back to the claims raised in the previous §2255 and so were timely raised. On September 13, 2016, Olsson filed a Motion to Stay Proceedings pending the Supreme Court's decision in Beckles v. United States, No. 15-8544. The Government agreed that a stay should be granted as the Beckles decision would definitively resolve one of the issues presented by Olsson. The Court granted the motion and stayed this action until April 19, 2017. After the Supreme Court issued the Beckles decision, the Government moved to lift the stay and deny the pending §2255 motion on the merits. Olsson then filed a Motion for Leave to file a Second Amended §2255 motion.

         II. STANDARD

         Under 28 U.S.C. § 2255, a movant may collaterally attack his sentence on four grounds: “(1) ‘that the sentence was imposed in violation of the Constitution or laws of the United States, ' (2) ‘that the court was without jurisdiction to impose such sentence, ' (3) ‘that the sentence was in excess of the maximum authorized by law, ' and (4) that the sentence ‘is otherwise subject to collateral attack.'” Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962) (quoting 28 U.S.C.§ 2255).

         Our analysis of the ineffectiveness claims is governed by Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to succeed on an ineffectiveness claim, Patterson must show “both deficient performance by counsel and prejudice.” Id. at 687-88. In Johnson v. U.S., 860 F.Supp.2d 663 (N.D.Iowa 2012), the Court stated:

To establish deficient performance, a person challenging a conviction must show that “counsel's representation fell below an objective standard of reasonableness.” [Strickland], 466 U.S. at 688, 104 S.Ct. 2052. . . . The challenger's burden is to show “that counsel made errors so serious that counsel was not functioning as the ‘counsel' guaranteed the defendant by the Sixth Amendment.” Id., at 687, 104 S.Ct. 2052. Harrington v. Richter, 562 U.S. 86, 104, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011); Premo v. Moore, 562 U.S. 115, 121-122, 131 S.Ct. 733, 739, 178 L.Ed.2d 649 (2011) (quoting Richter). Also, the court “ ‘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.” ' ” King [v. United States, 595 F.3d 844');">595 F.3d 844, ] 852-53 (quoting Ruff v. Armontrout, 77 F.3d 265, 268 (8th Cir.1996), in turn quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). There are two substantial impediments to making the required showing of deficient performance. First, “ ‘[s]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.' ” United States v. Rice, 449 F.3d 887, 897 (8th Cir.2006) (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052). Second, “[t]here is a ‘strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.' ” Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052); Davis v. Norris, 423 F.3d 868, 877 (8th Cir.2005) (“To satisfy this prong [the movant] must overcome the strong presumption that his counsel's conduct fell within the wide range of reasonable professional assistance.”)

Id. at 741. In United States v. Orr, 636 F.3d 944 (8th Cir.) cert. denied, 565 U.S. 1063 (2011), the Court stated, “strategic choices made after a thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after a less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Id. at 952 (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).

         III. DISCUSSION

         A. Motion for Leave to File Second Amended §2255

         Olsson seeks leave to file a Second Amended §2255 motion in order to raise the argument that Missouri's Second Degree Burglary statute does not qualify as a predicate offense under the modified categorical approach. Olsson argues that he was wrongly found to be a career offender because the Missouri second degree burglary statute is not the same as generic burglary. Olsson states that although the one year limitation for filing a §2255 motion has passed, the new ground set out in the amended petition relates back to the first ground because its relates to the same set of facts and argues that the second degree burglary conviction is not a predicate offense for purposes of the career offender guidelines. Olsson states that petitions for habeas corpus may be amended or supplemented as provided in the rules of procedure applicable to civil actions. 28 U.S.C. § 2242. Fed.R.Civ.P. 15 provides that leave to amend “shall be freely given when justice so requires.” “Rule 15(c)(2) . . .provides that pleading amendments relate back to the date of the original pleading when the claim asserted in the amended plea ‘arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.'” Mayle v. Felix, 545 U.S. 644, 656, 125 S.Ct. 2562, 162 L.Ed.2d 582 (2005). “So long as the original and amended petitions state claims that are tied to a common core of operative facts, relation back will be in order.” Id. at 664. Olsson states that because the new claim relates back to his first amended petition, justice would be served by allowing him to amend his motion. The Court agrees and finds that because the argument relates to the claims originally raised in the first amended §2255, the Court will GRANT Olsson's Motion for Leave to File a Second Amended §2255 (Doc. # 19). As the Government has already responded to the additional claim raised in the Second Amended §2255 Motion and Olsson has filed reply suggestions, briefing on the Second Amended Motion is complete and the Court will consider Doc. # 19- Ex.1, (Second Amended Motion Under §2255), as properly filed and will rule on all of the grounds raised in the Second Amended Motion in this Order. The claims discussed below are in the order as presented in the Second Amended §2255 Motion.

         B. Ground One - Olsson's Sentence Was Imposed in Violation of theConstitution or Laws of the United States Because This Court Erroneously Sentenced Him Under ...


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