United States District Court, W.D. Virginia, Roanoke Division
Michael F. Urbanski Chief United States District Judge.
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"). 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
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.
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,
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. 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.
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).
The ACCA Enhanced Sentence Structure
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).
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
[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).
Timeliness of Petition and Procedural Default
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 ...