United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
DAVID R. HERNDON, District Judge.
Petitioner Ronny Van Green ("Green"), an inmate in the Federal Correctional Institution located in Greenville, Illinois, brings this habeas corpus action pursuant to 28 U.S.C. § 2241. Green challenges his enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) (Doc. 1, p. 7). He contends that one of the predicate offenses giving rise to his status as an armed career criminal, i.e., a 1978 conviction in Missouri for stealing from a person, is not a "violent felony" under 18 U.S.C. § 924(e)(2)(B) and therefore does not qualify as a predicate offense. Green asks the Court to resentence him without the armed career criminal enhancement, in light of the United States Supreme Court's decision in Begay v. United States, 553 U.S. 137 (2008), and its progeny.
This matter is now before the Court for preliminary review of the habeas petition. Rule 4 of the Federal Rules Governing Section 2254 Cases in United States District Courts provides that upon preliminary consideration by the district judge, "[i]f it plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Rule 1(b) of those Rules gives this Court the authority to apply the rules to other habeas corpus cases. Upon review of the instant petition, the Court concludes that it would be premature to dismiss the petition under Rule 4 at this time. Therefore, a response shall be ordered.
On June 24, 1997, Green was charged with the following crimes:
(1) Count One - armed bank robbery in violation of 18 U.S.C. § 2113(a) and (d);
(2) Count Two - use of a firearm during a crime of violence in violation of 18 U.S.C. § 924(c); and (3) Count Three - being an armed career criminal in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). United States v. Green , Case No. 97-cr-00087-DGK-1 (W.D. Mo. 1997) ("criminal case") (Doc. 29). Prior to trial, the Government filed a Notice of Information Pursuant to 18 U.S.C. § 3559, which would require a sentence of life imprisonment for Green upon conviction of the armed bank robbery count (Doc. 41, criminal case). Green was found guilty of Counts One, Two, and Three, following a jury trial on September 17, 1997 (Doc. 81, criminal case). On December 9, 1997, Green was sentenced to concurrent terms of life imprisonment on Counts One and Three, to be followed by a consecutive term of sixty months' imprisonment on Count Two (Docs. 87, 88, criminal case).
The United States Court of Appeals for the Eighth Circuit affirmed the convictions and sentences on direct appeal. United States v. Green, 157 F.3d 617, 618-20 (8th Cir. 1998). Between 1998 and 2014, Green filed approximately twenty separate post-sentencing motions and petitions in an effort to attack his convictions and sentences in the United States District Court for the Western District of Missouri,  the United States Court of Appeals for the Eighth Circuit,  and the United States Supreme Court. Each was unsuccessful. The instant petition followed.
II. Habeas Petition
In the operative Section 2241 petition, Green contends that his 1978 conviction in Missouri for stealing from a person ("Missouri stealing conviction") is not a "violent felony" and therefore cannot support an enhanced sentence under the Armed Career Criminal Act, 18 U.S.C. § 924(e) ("ACCA") (Doc. 1, p. 7; Doc. 1-1, p. 2). The ACCA imposes a 15-year mandatory minimum sentence on an offender who has three prior convictions "for a violent felony or a serious drug offense." Id. A "violent felony" is defined under the ACCA as "any 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).
When Green pleaded guilty to the offense in 1978, he denied the use or threatened use of a firearm (Doc. 1, p. 7). He also denied the use, attempted use, or threatened use of physical force against a person, or any aggressive conduct that presented a serious potential risk of physical injury to another (Id. ). Green claims that the Missouri Circuit Court considered the offense to be a misdemeanor and sentenced him to a maximum term of one year of imprisonment.
When the United States District Court for the Western District of Missouri applied the ACCA enhancement to sentence Green to a life term of imprisonment as an armed career criminal, the sentencing court allegedly relied on the charges in the State's indictment. The charges included first degree robbery and armed criminal action (Doc. 1-1, p. 12; Doc. 1-2, p. 2). The district court overlooked the fact that the first degree robbery charge was amended to "stealing from the person, " and the handgun charge was dismissed. In addition, the district court overlooked the fact that Green was only sentenced to one year of imprisonment because the Missouri stealing conviction was treated as a misdemeanor under MO. REV. STAT. §§ 558.011(5) and 570.030(7). Finally, Green argues that he did not receive any criminal history points for his misdemeanor conviction (Id. ).
Under the circumstances presented, Green maintains that the Missouri stealing conviction does not satisfy the requirements for a "violent felony" under 18 U.S.C. § 924(e)(2)(B) and its subparts (Doc. 1 p. 7; Doc. 1-1, p. 3). He further contends that the United States Supreme Court's decisions in Begay v. United States, 553 U.S. 137 (2008), and Chambers v. United States, 555 U.S. 122 (2009), support his position and provide the proper framework for determining whether his Missouri stealing conviction is a "violent felony" under the ACCA. See also United States v. Higgins, 710 F.3d 839 (8th Cir. 2013); Unites States v. Hennecke, 590 F.3d 619 (8th Cir. 2010) (Doc. 1-1, p. 4); Brown v. Rios, 696 F.3d 638 (7th Cir. 2012); Narvaez v. United States, 674 F.3d 621 (7th Cir. 2011); Welch v. United States, 604 F.3d 408 (7th Cir. 2010).
In short, Green maintains that the Missouri stealing conviction did not qualify as a predicate offense and therefore cannot be used to enhance Green's sentence under the ACCA (Doc. 1, p. 7). Doing so allegedly resulted in the imposition of a sentence that exceeds the statutory maximum, as applied to Green (Id. ). He argues that it amounts to a fundamental defect in his sentence and a ...