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United States v. Chappell

United States District Court, N.D. Oklahoma

December 13, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
VICTOR ROSS CHAPPELL, Defendant.

          OPINION AND ORDER

          JOHN E. DOWDEEL, UNITED STATES DISTRICT JUDGE.

         I. Background

         Before the Court is the motion of defendant, Victor Ross Chappell, under 28 U.S.C. § 2255, to vacate, set aside, or correct sentence (Doc. 64), as amended and supplemented (Doc. 68, 82). In 2014, Chappell pleaded guilty to possession of a firearm and ammunition after felony conviction, in violation of 18 U.S.C. § 922(g)(1). A conviction under § 922(g)(1) would typically carry a maximum 10-year sentence. However, because the presentence investigation report (PSR) determined that Mr. Chappell had more than three prior convictions for violent felonies under 18 U.S.C. § 924(e), he was classified as an Armed Career Criminal, which raised his statutory maximum to life imprisonment and subjected him to a mandatory minimum of 15 years' imprisonment.

         The PSR identified eight convictions as predicates for Mr. Chappell's sentencing under the ACCA. Those included six counts of second degree burglary and two counts of eluding a police officer, under Oklahoma law. (PSR at ¶¶ 16, 22, 25, 26, 33, 34). Because of his criminal history and resulting offense level, Chappell faced a range of 168 to 210 months under the Sentencing Guidelines. (Id. at ¶ 52). As the ACCA imposed a mandatory minimum sentence of fifteen years, Mr. Chappell was sentenced to the mandatory minimum of 180 months' incarceration. Mr. Chappell did not file a direct appeal.

         Mr. Chappell was appointed counsel to assist him in his presentation of his § 2255 motion, which was timely filed and was timely supplemented following the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015). In supplemental briefing, Mr. Chappell's counsel also raised the intervening decision in Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243 (2016), as applied to the six prior second degree burglary convictions. (See Doc. 82). The issue here is whether Johnson and/or Mathis impact Chappell's Armed Career Criminal Act (ACCA) designation and sentence.

         II. Mr. Chappell's claim of ineffective assistance of counsel

         Mr. Chappell initially filed his § 2255 motion based upon a claim that his counsel was ineffective for failing to challenge his sentencing under § 924(e) and failing to directly appeal that sentence. However, an attorney's failure to foresee future legal rulings establishing new rules of law does not amount to ineffective assistance of counsel. See United States v. Castillo-Olivas, 167 F. App'x 71 (10th Cir. 2006) (unpublished) (counsel's failure to anticipate a Supreme Court decision rendered three months after conviction was not ineffective assistance of counsel). With respect to the balance of Mr. Chappell's ineffective assistance claim, which is that his defense counsel failed to file a direct appeal, his current counsel notes that “vacation of the ACCA sentence would resolve the issue of whether previous counsel was ineffective as to sentencing.” (Doc. 79 at 10, fn.2). His counsel in this proceeding also notes, correctly, that Mr. Chappell's original motion sought the relief of resentencing without the ACCA enhancement. (Id., quoting Doc. 64 at 13). Accordingly, the Court will turn to the legal issues presented by Mr. Chappell's challenge to the ACCA sentence to determine if he is entitled to the requested relief.

         III. Mr. Chappell's status under the ACCA

         A. The residual clause

         By supplement to his § 2255 motion, Mr. Chappell timely presented a claim under Johnson. Before Johnson, the ACCA defined “violent felony” as follows:

“[V]iolent felony” means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, 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). The language of the second part of § 924(e)(2)(B)(ii) - “otherwise involves conduct that presents a serious potential risk of physical injury to another” - is known as the “residual clause.” The Supreme Court in Johnson held the residual clause to be unconstitutionally vague, in ...


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