United States District Court, W.D. Missouri, Western Division
ORDER DENYING MOTION TO CORRECT SENTENCE
KAYS, CHIEF JUDGE
Darnell Grimmett (“Petitioner”) pled guilty to
one count of being a felon in possession of a firearm, in
violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2),
and the Court sentenced him to 88 months' imprisonment.
before the Court are Petitioner's Motion to Vacate, Set
Aside, or Correct Sentence (Doc. 1) under 28 U.S.C. §
2255, Petitioner's Motion to Dismiss without Prejudice
(Doc. 12), and the Government's Motion to Lift Stay and
Deny Pending 28 U.S.C. § 2255 Motion on the Merits (Doc.
11). Because the Supreme Court recently rejected
Petitioner's argument in Beckles v. United
States, 137 S.Ct. 886 (2017), his § 2255 motion and
his motion to dismiss without prejudice are DENIED. The
Government's motion to Deny Petitioner's motion is
November 21, 2012, Petitioner pled guilty, pursuant to a
written plea agreement, to one count of being a felon in
possession of a firearm. Plea Agrmnt. (Crim. Doc. 22). In
this agreement, Petitioner waived his right to attack his
sentence, directly or collaterally, on any ground except
claims of ineffective assistance of counsel, prosecutorial
misconduct, or an illegal sentence. Id. ¶ 15.
The agreement defines an “illegal sentence” as
one “imposed in excess of the statutory maximum,
” and states the term specifically “does
not include less serious sentencing errors, such as
a misapplication of the Sentencing Guidelines, an abuse of
discretion, or the imposition of an unreasonable
sentence.” Id. (emphasis in original).
Petitioner does not challenge the validity of his plea
agreement and this waiver.
20, 2013, the Court sentenced Petitioner to 88 months'
imprisonment after carefully considering the relevant factors
and reviewing the United States Sentencing Guidelines (the
“Guidelines”). In calculating Petitioner's
Guidelines range, the Probation and Parole Office found he
was eligible for an enhanced base offense level because he
had a prior conviction that qualified as a “crime of
violence.” Specifically, the Presentence Investigation
Report (“PSR”) found Petitioner's prior
Missouri conviction of resisting arrest by fleeing and
creating a substantial risk of serious injury or death,
qualified him for an enhancement under Guidelines §
2K2.1(a). See PSR ¶¶ 17, 31 (Crim. Doc.
25). This enhancement elevated Petitioner's base offense
level to 22, yielding an advisory imprisonment range of 63 to
78 months. The Court sentenced Petitioner above the advisory
range, but below the statutory maximum of 10 years.
Petitioner did not file a direct appeal.
filed the instant motion on June 15, 2016. The Court withheld
ruling while awaiting the Supreme Court's opinion in
Beckles, which was handed down on March 6, 2017.
The Court will not dismiss Grimmett's § 2255 motion
without prejudice, and will consider the merits of his
Court first addresses Petitioner's motion to dismiss his
§ 2255 motion without prejudice so he may file another
motion pursuant to § 2255 without that motion being
considered a second or successive petition requiring the
permission of the Eighth Circuit to proceed (Doc. 12). The
Government anticipated this request and argues the Court
“should not allow a state or federal prisoner to
voluntarily dismiss a post-conviction motion to avoid
application of an impending or recently issued adverse
decision.” Gov't Mot. at 3 (Doc. 11). Even if
dismissing this motion without prejudice could allow
Petitioner to file another § 2255 motion without
permission from the Eighth Circuit, cf. Felder v.
McVicar, 113 F.3d 696, 698 (7th Cir. 1997) (“[A]
petitioner for habeas corpus cannot be permitted to thwart
the limitations on the filing of second or successive motions
by withdrawing his first petition as soon as it becomes
evident that the district court is going to dismiss it on the
merits.”); Thai v. United States, 391 F.3d
491, 495 (2d Cir. 2004) (“[I]f a petitioner clearly
concedes upon withdrawal of a § 2255 petition that the
petition lacks merit, the withdrawal is akin to a dismissal
on the merits and subsequent petitions will count as
successive . . . .”), the Court will not acquiesce in
this sort of gamesmanship.
motion to dismiss without prejudice is denied, and the Court
will consider the merits of his § 2255 motion.
Grimmett's enhanced base level sentence did not deprive
him of due process of law.
district court may vacate a sentence if it “was imposed
in violation of the Constitution or laws of the United
States.” 28 U.S.C. § 2255(a). A § 2255 motion
“is not a substitute for a direct appeal, and is not
the proper way to complain about simple . . . errors.”
Anderson v. United States, 25 F.3d 704, 706 (8th
Cir. 1994) (internal citation omitted).
argues his prior conviction for resisting arrest by fleeing
and creating a substantial risk of serious injury or death no
longer qualifies as a crime of violence in the wake of
Johnson v. United States, 135 S.Ct. 2551 (2015), the
Supreme Court decision invalidating the Armed Career Criminal
Act's (“ACCA”) residual clause, 18 U.S.C.