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United States v. Peters

United States District Court, N.D. Indiana, Fort Wayne Division

February 1, 2017

UNITED STATES OF AMERICA
v.
BRANDON A. PETERS

          OPINION AND ORDER

          THERESA L. SPRINGMANN JUDGE

         The Defendant, Brandon A. Peters, is serving a sentence for armed robbery of a controlled substance from a pharmacy in violation of 18 U.S.C. § 2118(a) and (c), and using a firearm during and in relation to a crime of violence in violation of 18 U.S.C. § 924(c). The Defendant now seeks to vacate his conviction and sentence under § 924(c) [Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255, ECF No. 82]. His Motion is predicated on the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The Defendant maintains that robbery of a controlled substance can no longer be a predicate offense for a § 924(c) conviction.

         The Defendant filed his Motion on June 27, 2016. The Antiterrorism and Effective Death Penalty Act (AEDPA) of 1996 added a one-year statute of limitations for prisoners to assert collateral attacks on their sentences under Section 2255. See 28 U.S.C. § 2255(f). The limitations period begins to run from the latest of-

(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f)(1)-(4). The Defendant maintains that his Motion is timely filed under subsection (f)(3) because he filed it within one year of the Supreme Court's decision in Johnson, whish is retroactively applicable to cases on collateral review. Welch v. United States, 136 S.Ct. 1257, 1265 (2016) (“Johnson is . . . a substantive decision and so has retroactive effect . . . in cases on collateral review.”); Price v. United States, 795 F.3d 731, 734 (7th Cir. 2015) (Johnson announced a new substantive rule which applies retroactively on collateral review). The Supreme Court decided Johnson on June 26, 2015. However, because June 26, 2016, was a Sunday, the Court treats the June 27 Motion as timely filed. See Fed. R. Civ. P. 6(a)(3); R. 12 of Rules Governing Section 2255 Proceedings.

         ANALYSIS

         Section 2255 allows a defendant to move to vacate, set aside, or correct a sentence that was imposed in violation of the Constitution of the United States. See 28 U.S.C. § 2255(a). Relief under § 2255 is “available only in extraordinary situations, ” requiring an error of constitutional or jurisdictional magnitude or a fundamental defect that resulted in a complete miscarriage of justice. Blake v. United States, 723 F.3d 870, 878-79 (7th Cir. 2013).

         To sustain a conviction under 18 U.S.C. § 924(c)(3), the government must prove that the defendant (1) used or carried a firearm and (2) did so during and in relation to a “crime of violence.” Under § 924(c)(3), the term “crime of violence” is “an offense that is a felony” that (A) “has as an element the use, attempted use, or threatened use of physical force against the person or property of another” or (B) “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” 18 U.S.C. § 924(c)(3)(A)-(B). Subsection (A) is known as the elements clause, and subsection (B) is referred to as the residual clause.

         The substantive underlying crime of violence (or drug trafficking crime) is identified in the § 924(c) charge itself. See Davila v. United States, 843 F.3d 729, 731 (7th Cir. 2016) (noting that a § 924(c) offense is a stand-alone crime for which no underlying conviction needs to be obtained). Here, the Indictment identifies the predicate crime of violence as armed robbery of controlled substances, in violation of 18 U.S.C. § 2118(a) and (c)(1). A defendant commits robbery of a controlled substance if he:

takes or attempts to take from the person or presence of another by force or violence or by intimidation any material or compound containing any quantity of a controlled substance belonging to or in the care, custody, control, or possession of a person registered with the Drug Enforcement Administration under section 302 of the Controlled Substances Act (21 U.S.C. 822) . . . if (1) the replacement cost of the material or compound to the registrant was not less than $500, (2) the person who engaged in such taking or attempted such taking traveled in interstate or foreign commerce or used any facility in interstate or foreign commerce to facilitate such taking or attempt, or (3) another person was killed or suffered significant bodily injury as a result of such taking or attempt.

18 U.S.C. § 2118(a). The offense can be enhanced and charged under subsection (c)(1) if, while committing or attempting to commit the robbery, the defendant “assaults any person, or puts in jeopardy the life of any person, by the use of ...


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