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Reese v. United States

United States District Court, M.D. North Carolina

July 14, 2017

BERNARD EVERETT REESE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          L. PATRICK AULD UNITED STATES MAGISTRATE JUDGE.

         This case comes before the undersigned United States Magistrate Judge for recommended rulings on Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Section 2255 Motion”) (Docket Entry 31), as amended of right (see Docket Entry 36), and his Motion for Leave to File Supplemental Proceedings pursuant to Federal Rules [sic] of Civil Proc. 15(d) (“Rule 15(d) Motion”) (Docket Entry 52).[1] For the reasons that follow, the Court should deny Petitioner's instant Motions.

         INTRODUCTION

         This Court (per United States District Judge Thomas D. Schroeder) entered a Judgment against Petitioner imposing, inter alia, a prison term of 122 months and a supervised release term of five years, as a result of his guilty plea to possessing a firearm as a felon in violation of 18 U.S.C. § 922(g)(1), and a finding that his prior record triggered enhanced penalties under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1). (Docket Entries 19, 60; see also Docket Entry 25 (Plea Hrg. Tr.); Docket Entry 27 (Sent'g Hrg. Tr.); Docket Entry 59 (Presentence Report (“PSR”)).)[2] Petitioner appealed (see Docket Entry 20), but the United States Court of Appeals for the Fourth Circuit affirmed and (on April 28, 2014) the United States Supreme Court declined review, United States v. Reese, 548 F. App'x 927 (4th Cir. 2013), cert. denied, __U.S.__, 134 S.Ct. 1958 (2014).

         Petitioner then timely filed (pro se) his instant Section 2255 Motion (Docket Entry 31), with four grounds for relief (see id. at 2). “Ground Three” asserted a claim for ineffective assistance because “counsel failed to object to and/or appeal various sentencing errors.” (Id.; see also id. at 10-11 (“Petitioner complains that his prior conviction for arson is not a violent felony . . . and counsel was ineffective for failing to object and/or to appeal this sentencing error on Petitioner's behalf. Petitioner moreover complains that this prior drug prior [sic] convictions relied upon in addition to his arson conviction were unconstitutional and invalid prior convictions which should not have been relied upon to enhance his sentence because those convictions were obtained in violation of [his] Sixth Amendment right to effective assistance of counsel throughout the underlying state proceedings; coupled with a violation of [his] Fourteenth Amendment right to due process in the state proceedings, inasmuch as the state court and the state prosecutorial authorities agrees [sic] to consolidate the prior convictions in the event Petitioner entered a plea of guilty thereto.” (emphasis in original)).

         Before the United States responded (and within the one-year statutory limitations period following the denial of certiorari, see 28 U.S.C. § 2255(f)(1); Clay v. United States, 537 U.S. 522, 527 (2003)), Petitioner amended his Section 2255 Motion (as of right, see Federal Rule of Civil Procedure 15(a)(1); see also 28 U.S.C. § 2242 (“[A habeas petition] may be amended or supplemented as provided in the rules of procedure applicable to civil actions.”)), by altering “Ground Three . . . and [by] withdraw[ing] all other grounds.” (Docket Entry 36 at 1; see also id. at 2 (“[P]etitioner hereby withdraws all previously filed claims for relief with the exception of what was previously numbered ‘Ground Three'. This claim is now divided into two separate but related issues and is hereby amended . . . .”).)[3]

         As so amended, Petitioner's sentencing-related ineffective assistance claims appear as follows:

Ground One
Counsel was ineffective at sentencing and on appeal for failing to object to two of the Petitioner's prior convictions being used to enhance [him] as an Armed Career [Criminal] (18 U.S.C. §924(e)) when neither of the convictions at issue carried a potential sentence in excess of 10 years as required by 18 U.S.C. [§] 924(e)(2)(A)(ii). Had counsel made this objection at sentencing and/or raised the issue on direct appeal, the Petitioner would have prevailed and would not have been sentenced in excess of the otherwise applicable statutory maximum term.
Ground Two
Counsel was ineffective at sentencing and on direct appeal when counsel failed to object to or raise as an issue for review the fact that the government used non violent juvenile convictions against Petitioner as predicates for the 924(e) enhancements when non violent juvenile convictions are specifically excluded from the definition of “conviction” pursuant to 18 U.S.C. §924(e)(2)(C).

(Docket Entry 36 at 2 (standard capitalization conventions applied) (emphasis in original).)

         The United States responded (Docket Entry 48) and Petitioner replied (Docket Entry 50). In replying, Petitioner stated:

The amended petition specifically withdrew several of the grounds previously raised by the [P]etitioner].
Essentially, the [P]etitioner contends that his attorney was ineffective for failing to object to his prior Florida Drug convictions because (A) the sentencing law in the state of Florida in place at the time could not have possibly exposed [him] to ten years or more of imprisonment and therefore did not meet the statutory definition of “Serious Drug Offense” as defined by 18 U.S.C. §924(e) and (B) that [sic] the [P]etitioner's nonviolent juvenile adjudications are specifically excluded by the same statute.
. . . [T]his Court does not need to address the withdrawn claims . . . .

(Id. at 1-2.)

         Later, Petitioner filed his instant Rule 15(d) Motion, “contend[ing] that he no longer ha[s] the three (3) prior predicate convictions . . . require[d for] an enhancement pursuant to the [ACCA] provision, because his attempted [sic] arson conviction[] no longer qualif[ies] as a predicate[, ] in light of Johnson[ v. United States, __U.S.__, __], 135 S.Ct. 2551, 2557[ (2015)].” (Docket Entry 52 at 3.) Pursuant to standard practice, the Court (per Chief United States District Judge William L. Osteen, Jr.) appointed counsel to represent Petitioner in connection with any Johnson claim. (Text Order dated Aug. 26, 2016.)

         Subsequently, Petitioner filed a pro se motion asking the Court to defer action on his Section 2255 Motion (as amended of right) to allow him “to present intervening United States Supreme Court caselaw, namely Mathis v. United States, [ U.S., 136 S.Ct. 2243 (2016)], and argument.” (Docket Entry 54 at 1.)[4] The Court (per the undersigned Magistrate Judge) denied that request without prejudice and directed newly-appointed counsel “to file a status report . . . regarding the pending claims and any need for amendment suggested by [Petitioner's foregoing pro se motion].” (Text Order dated Sept. 22, 2016.)

         In compliance with that directive, newly-appointed counsel for Petitioner advised the Court as follows:

Mathis is the Supreme Court's most recent discussion of divisible vs. indivisible criminal statutes, and the role divisibility analysis plays in determining whether the criminal statute in question comes within the generic definition of one of the enumerated offenses in Section 924(e)(2)(B)(ii). Just as the Iowa burglary statute's inclusion of land, water and air vehicles rendered it broader than “generic burglary” in Mathis, so might the Florida arson statute's inclusion of “any vehicle, vessel, watercraft, or aircraft” in its definition of “structure.” F.S.A. §806.01(3). If Florida arson is broader than “generic arson, ” then Johnson's invalidation of the ACCA residual clause might mean Petitioner's Florida arson conviction no longer qualifies as an ACCA violent felony, and thus Petitioner might no longer qualify as an armed career criminal. However, that does not appear to be a viable argument, for two reasons.
First, although the common law definition of arson was generally limited to buildings, that is not the modern understanding. . . . [“]Today a majority of states make arson of personal property a crime, as does federal law. To exclude all but buildings from the concept of arson would be contrary to the modern understanding of arson, as well as being arbitrary.[”] . . . It does not appear a non-frivolous argument can be made that Johnson's invalidation of the ACCA residual clause means Petitioner's Florida arson conviction no longer qualifies as an ACCA violent felony, Mathis notwithstanding.
Second, Johnson would only be a basis for relief in Petitioner's case if his status as an armed career criminal depended upon counting that arson conviction as one of the three required predicate convictions. Given that Petitioner also has prior convictions for four counts of felony delivery of cocaine, for offenses that occurred on four separate occasions, it appears his status as an armed career criminal depends on his arguments regarding whether they qualify as “serious drug offenses” under 18 U.S.C. § 924(e)(2)(A)(ii), and whether his attorney was ineffective in not raising that argument, not on whether his arson conviction still qualifies as an ACCA violent felony after Johnson.
Counsel has not identified any other potentially meritorious theories under which Johnson would affect the lawfulness of Petitioner's conviction or sentence. . . . Counsel made this determination only after a conscientious review of the matter, including all ...

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