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Pannell v. United States

United States District Court, W.D. Virginia, Roanoke Division

January 24, 2018

MICHAEL SCOTT PANNELL, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          Michael F. Urbanski Chief United States District Judge.

         This matter is before the court on Petitioner Michael Scott Pannell's motion to. vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. ECF No. 39. Pannell asserts that he no longer qualifies as an armed career criminal under the Armed Career Criminal Act ("ACCA") because his predicate convictions no longer support such a designation following the Supreme Court's decision in Johnson v. United States. 135 S.Ct. 2551 (2015), ("Johnson II")[1]. as well as recent Fourth Circuit case law. After careful review of the record, and in light of Johnson II, the court will deny Pannell's § 2255 motion, and grant the government's motion to dismiss.

         I.

         On March 18, 2002, Pannell was convicted, following a trial, of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g) and 924(e) ("Count One"); possession of marijuana with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) ("Count Two"); and possession of a firearm in relation to a drug trafficking crime, in violation of 18 U.S.C. § 924(c) ("Count Three"). ECF No. 16. A Presentence Investigation Report ("PSR") was created prior to sentencing. It recommended that Pannell be designated an armed career criminal based on the following convictions: a 1988 Virginia robbery conviction; a 1992 Virginia burglary conviction (two counts); a 1993 Virginia malicious wounding conviction; a 1993 Virginia accommodation to sell cocaine conviction (two counts); and a 1993 Virginia armed robbery conviction. PSR ¶¶ 29, 36, 41, 42, and 43, ECF No. 56. Because of the armed career criminal designation, the PSR recommended a total offense level of 37 and a criminal history category of VI, resulting in an advisory guideline range of 360 months' to life imprisonment for Counts One and Two. Id. ¶ 90. In addition, Pannell faced a statutory mandatory minimum sentence of 15 years' incarceration for Count One. Id. ¶ 83; 18 U.S.C. § 924(e)(2). Without the armed career criminal enhancement, Pannell would have faced a statutory maximum of ten years' incarceration for Count One. 18 U.S.C. § 924(a)(2). Pannell faced a statutory mandatory minimum of 60 months' incarceration on Count Three, to be served consecutively. 18 U.S.C. § 924(c)(1)(A)(i). The court adopted the PSR and sentenced Pannell to a total of 420 months' imprisonment.

         Pannell appealed, arguing that the court improperly denied a motion to suppress evidence and that the prosecutor made improper closing arguments. United States v. Pannell. 77 Fed.Appx. 188 (4h Cir. 2003). The Fourth Circuit denied his appeal. Id. Pannell filed a petition for a writ of certiorari to the Supreme Court of the United States, which was denied on March 22, 2004. Pannell v. United States. 541 U.S. 954 (2004). In addition, Pannell filed a prior § 2255 motion, alleging numerous court and counsel errors, which was denied. Pannell v. United States. 7:05cvl47, 2005 WL 1667749 (W.D. Va. July 14, 2005).

         On September 9, 2015, in accordance with Standing Order 15-5, the court appointed the Federal Public Defender's Office to represent Pannell with regard to any claim for relief that he might have under § 2255 following the Johnson II decision. After receiving permission from the United States Court of Appeals for the Fourth Circuit to file a second or successive § 2255 motion, defense counsel filed this § 2255 motion alleging mat Johnson II invalidated Pannell's ACCA-enhanced sentence because his Virginia predicate convictions for robbery, burglary, and malicious wounding no longer qualify as violent felonies. ECF No. 39.[2] The government responded, arguing that the Johnson II decision did not affect Pannell's predicate offenses, which continue to support his ACCA-enhanced sentence. On August 9, 2017, the court ordered additional briefing on whether Pannell's convictions for "Use of a Firearm in the Commission of a Felony, " which accompanied both his malicious wounding and one of his robbery convictions, qualified as an ACCA predicate in its own right. ECF No. 57. Both defense counsel and the government have now responded to the court's order.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his 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;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Pannell bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Miller v. United States. 261 F.2d 546, 547 (4th Cir. 1958).

         III.

         A. The ACCA Enhanced Sentence Structure

         Pannell challenges the viability of many of the predicate offenses used to support his status as an armed career criminal. Federal law prohibits convicted felons from possessing firearms. 18 U.S.C. § 922(g). Defendants who violate this law are subject to a term of up to ten years' imprisonment. 18 U.S.C. § 924(a)(2). However, when defendants convicted of a § 922(g) charge have three or more prior convictions for "serious drug offenses" or "violent felonies, " they qualify as armed career criminals under the ACCA. Armed career criminals face an increased punishment: a statutory mandatory minimum of fifteen years' imprisonment and a maximum of life. 18 U.S.C. § 924(e)(1).

         In Johnson II. the Supreme Court invalidated part of the definition of "violent felony" under the ACCA. 135 S.Ct. at 2563. The ACCA defines a "violent felony" as:

[A]ny 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.

18 U.S.C. § 924(e)(2)(B). In Johnson II, the Supreme Court reviewed the second part of subsection (ii) of the violent felony definition. It concluded that the clause, known as the "residual clause, " which provides, "or otherwise involves conduct that presents a serious potential risk of physical injury to another, " was unconstitutionally vague. 135 S.Ct. at 2563. The Supreme Court did not, however, strike down the other portions of the violent felony definition, which include subsection (i), known as the "force clause, " and the first part of subsection (ii), delineating specific crimes, known as the "enumerated crimes clause." Johnson II, 135 S.Ct. at 2563 (noting that other than the residual clause, the Court's holding "d[id] not call into question. . . the remainder of the [ACCA's] definition of a violent felony"). In addition, Johnson II did not affect the definition of "serious drug offenses, " a conviction for which continues to support an enhanced ACCA sentence. Therefore, the Johnson II decision only limited the types of prior convictions that can act as predicate "violent felonies" under the residual clause. The Supreme Court's decision in Johnson II announced a new rule of constitutional law that applies retroactively to cases on collateral review. Welch v. United States. 136 S.Ct. 1257, 1268 (2016).

         B. Timeliness of Petition and Procedural Default

         A petition under § 2255 must adhere to strict statute of limitations requirements. Generally, a petitioner must file a § 2255 motion within one year from the date on which his judgment of conviction became final. 28 U.S.C. § 2255(f)(1). However, the statute allows for an additional one-year limitations period from the date on which the Supreme Court ...


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