United States District Court, N.D. Oklahoma
OPINION AND ORDER
E. DOWDEEL, UNITED STATES DISTRICT JUDGE.
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'
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.
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
Mr. Chappell's claim of ineffective assistance of
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F. App'x 71 (10th Cir. 2006) (unpublished) (counsel's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
Mr. Chappell's status under the ACCA
The residual clause
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
(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 ...