United States v. Townsend, Case No. 15-cr-305 (SRN/HB)

United States of America, Plaintiff, v. Edward Lee Townsend, a/k/a Edward Earl Townsend, Defendant.

Case No. 15-cr-305 (SRN/HB)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

September 10, 2018

MEMORANDUM OPINION AND ORDER

Benjamin Bejar and Craig R. Baune, United States Attorney's Office, 300 South 4th St., Ste. 600, Minneapolis, MN 55415, for Plaintiff.

Edward Lee Townsend, # 19250-041, FCI Pekin, PO Box 5000, Pekin, IL 61555, Pro Se.

SUSAN RICHARD NELSON, United States District Judge

This matter is before the Court on Defendant Edward Lee Townsend's Pro Se Motion to Vacate, Set Aside, or Correct the Sentence Imposed Pursuant to 28 U.S.C. § 2255 [Doc. No. 103].¹ The Government has filed a response [Doc. No. 111] and citation to supplemental authority [Doc. No. 114]. Defendant has also filed a reply memorandum [Doc. No. 113]. Based on a review of the file, record and proceedings therein, and for the reasons set forth below, the Court denies Defendant's motion.

I. BACKGROUND

In November 2015, Townsend was charged in a single-count indictment with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) & 924(e) (1). (Indictment at 1-2 [Doc. No. 1].) In May 2016, he and the Government entered into a plea agreement (the "Plea Agreement"). (Plea Agmt. [Doc. No. 63].)

In the Plea Agreement, Townsend admitted that on September 19, 2014, during the execution of a search warrant at a residence in St. Paul, Minnesota, officers located a revolver. (Id. at 2.) Townsend agreed that he knowingly and voluntarily possessed the firearm and understood that his possession of the gun violated the law. (Id.) Further, Townsend admitted that prior to September 19, 2014, he had been convicted of certain felonies, listed in Count 1 of the Indictment, at least three of which were "violent felonies" as then defined under 18 U.S.C. § 924(e)(2). (Id.) In addition, Townsend waived his right to file pretrial motions and to appeal, and recognized that the offense in Count 1 carried the statutory maximum penalty of life imprisonment and a mandatory-minimum term of not less than 15 years' imprisonment (180 months). (Id. at 3.)

On May 31, 2016, Townsend entered a guilty plea. (See May 31, 2016 Minutes [Doc. No. 62].) At that hearing, Townsend testified under oath that he was satisfied with the representation of his legal counsel, Federal Defender Manny Atwal, and had had sufficient time to discuss with her the charge against him, the terms of the Plea Agreement, and his decision to plead guilty. (May 31, 2016 Hr'g Tr. at 5-6, 10-13 [Doc. No. 97].) Twice, in response to questions from the Court and counsel for the Government, Townsend specifically expressed his understanding that pursuant to the PleaAgreement, both he and the Government waived any right to appeal his sentence. (Id. at 17-18, 20.) Townsend engaged in colloquy with the Court on this subject:

Court: All right. Now, you've also given up your right to appeal the sentence. Ordinarily parties, both the Government and the Defense, retain their rights to appeal; but on occasion, they waive certain rights to appeal. And in this case, both parties, the Government and you, have waived your rights to appeal the sentence. Do you understand that?

Defendant: Yes, Your Honor.

Court: So that means you won't be able to argue to a higher court that the sentence was unlawful in any way. Do you understand that?

Defendant: Yes, Your Honor.

(Id. at 20.)

Ms. Atwal likewise stated that she had had sufficient time to talk with her client about his decision to enter a guilty plea. (Id. at 6.) She further attested to her belief that Townsend understood the charge against him and the range of possible punishments. (Id.)

In December 2016, this Court sentenced Townsend to a prison term of 180 months. (Sentencing J. at 2 [Doc. No. 86].) At sentencing, the Court considered whether Townsend's four prior felony convictions constituted predicate offenses under the Armed Career Criminal Act ("ACCA"). The ACCA imposes a mandatory minimum sentence of fifteen years on defendants convicted of being a felon in possession of a firearm if, in relevant part, the defendant has at least three prior "violent felony" convictions. 18 U.S.C. § 924(e)(1). A crime is a violent felony if it is "punishable by imprisonment for a term exceeding one year," and as applicable here under the ACCA's "force clause," itinvolves "the use, attempted use, or threatened use of physical force against the person of another." Id. § 924(e)(2)(B)(i).

Townsend has four prior felony convictions: (1) a Wisconsin conviction for substantial battery; (2) a Minnesota conviction for fifth-degree assault; (3) a Minnesota conviction for first-degree aggravated robbery; and (4) a Wisconsin conviction for armed robbery with threat of force. (Presentence Investigation Report ("PSR") at ¶¶ 34, 42, 44-45 [Doc. No. 71].) At sentencing, this Court concluded that three of the prior convictions constituted violent felonies under the ACCA, but not the Minnesota conviction for first-degree aggravated robbery, relying on the reasoning of the district court in United States v. Pettis, No. 15-cr-0233 (PJS/FLN), 2016 WL 5107035 (D. Minn. Sept. 19, 2016), rev'd 888 F.3d 962, 965-66 (8th Cir. 2018), petition for cert. filed, (U.S. July 18, 2018) (No. 18-5232). (Dec. 19, 2016 Order at 4-10.) Because of the three qualifying predicate offenses, the Court found that Townsend was subject to the 15-year mandatory sentence for an armed career criminal. (Id. at 12.)

Townsend initially filed an appeal with the Eighth Circuit Court of Appeals. (See Notice of Appeal [Doc. No. 91].) The Government moved to dismiss the appeal, citing Townsend's waiver of appellate rights. In response, Townsend, through defense counsel, conceded the applicability of the waiver and did not oppose dismissal. (See Townsend v. United States, No. 16-4578, Response to Gov't's Mot. to Dismiss (8th Cir. Feb. 24, 2016).) The Eighth Circuit then dismissed the appeal. (See 8th Cir. J. at 1 [Doc. No. 100].) Ms. Atwal forwarded Townsend a copy of the dismissal order, noting that they had discussed the dismissal and that he was still entitled to file a motion under Section2255 to challenge the application of the ACCA to his sentence. (Ex. 1 to Def.'s Mot. (Mar. 25, 2017 Letter) [Doc. No. 103-1].)

In January 2018, Townsend filed the instant Section 2255 motion, seeking to correct his sentence. He presents three arguments. First, he argues that he received ineffective assistance of counsel stemming from: (1) counsel's recommendation that he sign the Plea Agreement; (2) the agreement to dismiss the appeal in light of the valid appeal-waiver provision in the Plea Agreement, (Def.'s Mot. at 3); and (3) counsel's "wholly inadequate" representation concerning the applicability of the ACCA. (Id. at 6). Second, Townsend claims that he is "actually innocent" because his prior felony convictions do not qualify as ACCA predicate felonies. (Id.) Third, he argues that the ACCA's force clause is unconstitutionally vague. (Id.)

II. DISCUSSION

Under Section 2255,

[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). This relief is only available in limited circumstances and is "reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and, if uncorrected, would result in a complete miscarriage of justice." Walking Eagle v. United States, 742 F.3d 1079, 1081-82 (8th Cir. 2014) (quoting United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996)).

A. Ineffective Assistance of Counsel

In order to obtain relief for ineffective assistance of counsel, Defendant must establish both that his counsel's performance "fell below an objective standard of reasonableness" and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 688 (1984). Defendant bears the burden of establishing to a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different. Id. In a case involving a plea agreement, this requires a showing that "'there [was] a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty and would have insisted on going to trial.'" York v. Lockhart, 856 F.2d 61, 63 (8th Cir. 1988) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)).

This is a "heavy burden," Apfel, 97 F.3d at 1076, requiring a defendant to show that the deficiency in counsel's performance was "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. A defendant must show that counsel's errors were not the result of "reasonable professional judgment." Id. at 690. Moreover, a court's review of counsel's performance is highly deferential, and there is a strong presumption of adequate assistance. Id.

1. Waiver of Right to Appeal

Townsend first challenges counsel's legal representation as it relates to the waiver of the right to file a direct appeal. The Eighth Circuit has observed that the right to appeal is not a constitutional right, but "'purely a creature of statute.'" United States v.Andis, 333 F.3d 886, 889 (8th Cir. 2003) (quoting Abney v. United States, 431 U.S. 651 (1977)). When a purported waiver is challenged, courts "must confirm that the appeal falls within the scope of the waiver and that both the waiver and plea agreement were entered into knowingly and voluntarily." Id. at 889-90. Even so, courts will not enforce...