United States District Court, D. Oregon
Danial Chase Kennedy, United States Penitentiary, Inmate Mail/Parcels, Waymart, Pennsylvania, Pro se petitioner.
Billy J. Williams, Interim United States Attorney, Frank R. Papagni, Jr., Assistant United States Attorney, Eugene, Oregon, Attorneys for respondent.
OPINION AND ORDER
ANN AIKEN, Chief District Judge.
Petitioner Danial Kennedy moves to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner's motion is denied and this case is dismissed.
On July 10, 2013, petitioner entered into a plea agreement with the United States Attorney's Office, pleading guilty to Felon in Possession of a Firearm, Felon in Possession of a Stolen Firearm, and Armed Career Criminal. See generally Plea Agmt. This agreement specified:
Mr. Kennedy agrees that if he is sentenced to a term of imprisonment of not more than 188 months, that he intelligently, knowingly and voluntarily gives up and waives [a]ny and all rights to collaterally attack any aspect of his conviction and sentence including... but not limited to motions under 28 U.S.C. § 2255, except on grounds of ineffective assistance of counsel.
Id. at 4. Petitioner affirmed that his plea was entered knowingly and voluntarily. See generally Plea Pet. & Order. He was ultimately sentenced to 180 months in prison.
A criminal defendant "claiming the right to be released [based on ineffective assistance of counsel] may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255. To establish ineffective assistance of counsel, the criminal defendant must show that: (1) counsel's representation was objectively unreasonable; and (2) "the deficient performance prejudiced the defense." Strickland v. Washington , 466 U.S. 668, 687 (1984).
Petitioner argues that he was not an Armed Career Criminal because "only one [of his previous felony convictions resulted in] over a year of imprisonment, " such that his attorney provided constitutionally deficient representation by erroneously permitting him to be sentenced with that enhancement. Mot. to Vacate 6-7.
To qualify as an Armed Career Criminal, a defendant must have "three previous convictions... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18 U.S.C. § 924 (e).The phrase "violent felony" is defined, in pertinent part, as "any crime punishable by imprisonment for a term exceeding one year." Id. "Serious drug offense" means a crime with "a maximum term of imprisonment of ten years or more." Id. In examining whether a particular crime constitutes a "violent felony" or "serious drug offense, " the "actual sentence imposed on an individual for a prior conviction, or the actual sentence that potentially could have been imposed based upon the particular facts of that person's case, is not the relevant inquiry." United States v. Murillo , 422 F.3d 1152, 1154 (9th Cir. 2005), cert. denied, 547 U.S. 1119 (2006) (citation and internal quotations omitted). Rather, the court "look[s] to the maximum penalty allowed by law in determining whether a prior
conviction constitutes an aggravated felony" for the purposes of 18 U.S.C. § 924(e). Id. at 1154-55 (citation and ...