United States v. Morrison

1

United States of America, Plaintiff, v. Anthony Morrison, Defendant.

Criminal No. 14-cr-116 (JNE)

Civil No. 22-cv-3198 (JNE)

United States District Court, D. Minnesota

August 4, 2023

ORDER

JOAN N. ERICKSEN UNITED STATES DISTRICT JUDGE

Defendant Anthony Morrison, proceeding pro se, moves to vacate his sentence pursuant to 28 U.S.C. § 2255, or in the alternative, to reduce his sentence pursuant to 18 U.S.C § 3582(c)(1)(A)(i). For the following reasons, the motion is denied.

BACKGROUND

Morrison pleaded guilty to one count of conspiracy to distribute 100 grams or more of a mixture and substance containing a detectable amount of heroin in violation of 21 U.S.C §§ 841(a)(1), 841(b)(1)(B), and 846. The U.S Probation and Pretrial Services Office prepared a presentence investigation report (“PSR”). It determined that Morrison was subject to an enhanced sentence as a career offender within the meaning of Section 4B1.1 of the U.S Sentencing Guidelines. This determination rested on Morrison having at least two prior felony convictions for a crime of violence or a controlled substance offense. See U.S.S.G. § 4B1.1(a). Specifically, the PSR found that Morrison had an Illinois conviction for selling drugs in 1997; an Illinois conviction for delivery of drugs in 1998; and an Illinois conviction for an aggravated battery against a police officer in 1998.

With or without the career offender enhancement, the relevant statute authorized a term of imprisonment of at least 5 and not more than 40 years. See 21 U.S.C. § 841(b)(1)(B). But whereas the Sentencing Guidelines called for a term of imprisonment between 92 and 115 months without the enhancement, with the enhancement that range rose to 188 to 235 months.

The government agreed with the PSR that Morrison was a career offender based on the drug sale and drug delivery convictions. But in response to Morrison's objection, the government initially declined to defend the PSR's finding that the aggravated battery conviction qualified as a predicate for career offender status, because the government had been unable to obtain court documents bearing on whether that conviction was for a “crime of violence” as defined by the “elements” clause of the relevant Sentencing Guidelines provision.

In October 2015, the Court held a sentencing hearing. Morrison denied that he had committed the 1997 drug sale offense listed in the PSR. The Court continued the sentencing hearing so that Morrison could continue to assemble evidence to support that argument.

In November 2015, the Court held a final sentencing hearing. Morrison had not obtained, and thus did not offer, any further evidence of his innocence with respect to the drug sale offense. But the government had obtained documents related to the aggravated battery conviction, and it submitted those documents as an exhibit. The documents showed that that offense was a “crime of violence,” without resort to the “residual” clause of the Guidelines' definition of that term-the validity of which had been thrown into doubt by Johnson v. United States, 576 U.S. 591 (2015). Thus, the Court held that the battery offense qualified as a predicate for career offender status. Finding that “the defendant actually does have three qualifying predicate offenses, which is one more than would be sufficient to qualify the defendant as a career offender,” ECF No. 121 at 8:22 25, the Court applied the career offender enhancement and sentenced Morrison to 186 months in the custody of the Bureau of Prisons (“BOP”), to be followed by four years of supervised release. The Court of Appeals summarily affirmed in April 2016.

In December 2022, Morrison filed the instant motion seeking to vacate or reduce his sentence based mainly on the assertedly erroneous application of the career offender enhancement. The government moves to dismiss Morrison's motion as time-barred to the extent that it seeks relief pursuant to 28 U.S.C. § 2255, and argues that the Court should deny the motion insofar as the motion seeks relief pursuant to 18 U.S.C. § 3582(c)(1)(A)(i).^[1] Morrison has filed a response in opposition to the government's motion to dismiss, in which Morrison also addresses the government's argument opposing his alternative claim for relief under Section 3582(c)(1)(A).^[2]

DISCUSSION

I. Motion to Vacate Sentence-28 U.S.C. § 2255

Morrison's Section 2255 motion revives his argument that he was improperly designated a career offender pursuant to Section 4B1.1 of the U.S. Sentencing Guidelines. Specifically, Morrison contends that a prior controlled substance felony conviction was improperly attributed to him. Morrison's claim is time-barred.

A Section 2255 motion is subject to a one-year limitations period that runs 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). Morrison's judgment of conviction became final in July 2016, “when the time to seek certiorari expire[d]” 90 days after the Court of Appeals summarily affirmed the judgment. See Kemp v. United States, 142 S.Ct. 1856, 1860 (2022). If the finality of Morrison's judgment of conviction were the most recent trigger for the statute of limitations, the instant motion would be more than six years too late. See 28 U.S.C. § 2255(f)(1). Morrison asserts that his motion is nonetheless timely under Section 2255(f)(4) because it took several years for him to obtain records that supposedly reveal new facts supporting the instant motion.

“‘To be entitled to invoke the statute of limitations contained in section 2255(f)(4),'” a “‘petitioner must show the existence of a new fact, while also demonstrating that he acted with diligence to discover the new fact.'” DeRoo v. United States, 709 F.3d 1242, 1245 (8th Cir. 2013) (quoting Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th Cir. 2008)). According to Morrison, newly obtained records of his Illinois convictions and other proceedings in that state prove a “new fact”: that someone else-not Morrison-perpetrated a 1997 offense that was deemed a predicate conviction for finding Morrison to be a career offender. Morrison submits those records as an exhibit along with his motion. The records include an Illinois state criminal history report, as well as transcripts from hearings in Cook County, Illinois, Circuit Court in April and June 2018. In those hearings, Morrison's mother disputed whether the 1997 drug sale offense involved Morrison. Morrison also submits a transcript of a hearing regarding a motion for a new trial in the 1997 case, during which hearing the defendant in that case also pleaded guilty to the 1998 aggravated battery listed in the PSR, as well as another offense not specified in the transcript.

Here, the “facts supporting the claim or claims presented could have been discovered through the exercise of due diligence,” 28 U.S.C. § 2255(f)(4), more than a year before Morrison filed the instant motion in late December 2022. Morrison offers scarcely any information about his efforts to obtain the records, and he does not specify when he received them. He thus fails to show “that he acted with diligence to discover the new fact.” DeRoo, 709 F.3d at 1245. Moreover, the transcripts of the April and June 2018 hearings, and of the hearing on the motion for a new trial in the 1997 case, are dated September and October of 2020-more than two years before Morrison filed his motion. ECF No. 117-1 at 14, 28, 48. To the extent that the records reveal any new facts supporting Morrison's claim, their dates confirm that the facts could have been discovered with reasonable diligence more than a year before December 2022. (The government raised this point in its motion to dismiss, and Morrison's response in opposition failed to dispute it.) Thus, even assuming that Section 2255(f)(4) commenced the running of the limitations period more recently than the date Morrison's judgment of conviction became final, the one-year limitations period elapsed before Morrison filed his motion.^[3]

For similar reasons, equitable tolling of the limitations period would not be appropriate. The Section 2255 limitations period may be equitably tolled “only if the movant shows (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Muhammad v. United States, 735 F.3d 812, 815 (8th Cir. 2013) (cleaned up). Equitable tolling thus offers “an exceedingly narrow window of relief.” Chachanko v. United States, 935 F.3d 627, 629 (8th Cir. 2019) (quoting Jihad v. Hvass, 267 F.3d 803, 805 (8th Cir. 2001)). Morrison states that it took him years to obtain the records on which his motion relies, and vaguely asserts that COVID-19 slowed his progress in doing so.^[4] But he fails to specify even approximate dates on which he requested or received the records. Crucially, for the year immediately preceding his filing of the motion in December 2022, he does not provide information from which the Court could find either diligent pursuit of his rights or “extraordinary circumstance[s]” that prevented him from filing.

Even if untimeliness did not dictate dismissal, Morrison still would...