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Bennett v. United States

United States District Court, W.D. North Carolina, Charlotte Division

March 7, 2018

TERRY JACKSON BENNETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          Robert J. Conrad, Jr., United States District Judge.

         THIS MATTER is before the Court on Petitioner's Motion to Vacate pursuant to 28 U.S.C. § 2255 seeking relief pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), (Doc. No. 1), a supporting memorandum, (Doc. No. 2), the Government's Motion to Dismiss Petitioner's Motion to Vacate, Set Aside, or Correct Sentence, (Doc. No. 5), and Petitioner's Motion to Respond to Government's Motion to Dismiss, (Doc. No. 7). Also pending are Respondent's Motion for Extension of Time, (Doc. No. 4), and Motion to Seal, (Doc. No. 6), and Petitioner's Motion to Amend, (Doc. No. 8), and Motion for Default Judgment, (Doc. No. 9). For the reasons that follow, the Motion to Vacate will be dismissed with prejudice as procedurally defaulted.

         I.BACKGROUND

         Petitioner was charged in the underlying criminal case with: (1) conspiracy to possess with the intent to distribute cocaine, (2) using and carrying firearm during and in relation to a drug trafficking crime, and aiding and abetting the same; and (3) possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1). (3:93-cr-254, Doc. No. 1).

         He pled guilty to the § 922(g) offense charged in Count (3) pursuant to a written plea agreement in exchange for the Government's dismissal of Counts (1) and (2). (3:93-cr-254, Doc. No. 27). As part of the plea agreement, the parties stipulated that Petitioner qualifies as an armed career criminal pursuant to 18 U.S.C. § 924(e) and that the appropriate disposition of the case is a 15-year sentence. (3:93-cr-254, Doc. No. 27 at 2). The plea agreement provides that, so long as the sentence does not exceed the maximum applicable sentencing guideline range, Petitioner knowingly and expressly waives his right to contest either the conviction or sentence in any post-conviction proceeding under 28 U.S.C. § 2255 except on the allegation of ineffective assistance of counsel or prosecutorial misconduct. (3:93-cv-254, Doc. No. 27 at 3).

         The presentence investigation report (“PSR”) prepared on April 27, 1994, calculated the base offense level as 24 for violating 922(g)(1). (3:93-cr-254, Doc. No. 79 at ¶ 15). Four levels were added because Petitioner used or possessed a firearm or ammunition in connection with another felony offense, or possessed or transferred any firearm or ammunition with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense. (3:93-cr-254, Doc. No. 79 at ¶ 16). Three levels were deducted for acceptance of responsibility. (3:93-cr-254, Doc. No. 79 at ¶ 22). This resulted in an offense level of 27. (3:93-cr-254, Doc. No. 79 at ¶ 22). However, the PSR concluded that Petitioner qualifies as an armed career criminal with an offense level of 34. After applying a reduction for acceptance of responsibility, the total offense level was 31. (3:93-cr-254, Doc. No. 79 at ¶ 25). Because the criminal history category for an armed career criminal is VI, the resulting guideline range became 188-235 months' imprisonment and three to five years of supervised release. (3:93-cr-254, Doc. No. 79 at ¶¶ 46, 69, 72).

         In a judgment docketed on July 7, 1994, the Court sentenced Petitioner as an armed career criminal to 180 months' imprisonment followed by five years of supervised release. (3:93-cr-254, Doc. No. 33).

         The Court granted the United States' Rule 35 motion to modify the sentence on March 23, 1995. (3:93-cr-254, Doc. Nos. 40, 42). The Amended Judgment, docketed on May 3, 1995, reduced the sentence of imprisonment to 120 months, and the term of supervised release remained five years. (3:93-cr-254, Doc. No. 43).

         Petitioner filed a § 2255 petition that was docketed as a new civil case, number 3:95-cv-91-RDP. (3:93-cr-254, Doc. No. 39). The Court denied relief on June 15, 1995. (3:93-cr-254, Doc. No. 44).

         Petitioner was released from prison in June 2002 to begin serving his five-year term of supervised release. See (3:93-cr-254, Doc. No. 65 at 1). Less than three years later on September 14, 2004, a probation arrest warrant was issued alleging that Petitioner violated supervised release by, inter alia, committing the new law violation of possession with intent to sell and deliver cocaine and marijuana. (3:93-cr-254, Doc. Nos. 65, 75). Petitioner admitted the violations and, on September 13, 2006, the Court docketed a judgment revoking Petitioner's supervised release and sentencing him to 24 month's imprisonment to run consecutively to any other sentence.[1] (3:93-cr-254, Doc. No. 78). He did not appeal.

         On June 22, 2016, the Fourth Circuit granted Petitioner permission to file a successive § 2255 petition to attack his sentence pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015). (Doc. No. 1-1).

         Petitioner argues in his § 2255 Motion to Vacate that he is not an armed career criminal because two of his prior convictions, misdemeanor assault and walk-away escape from a work release job, are not predicate violent felony offenses for purposes of the Armed Career Criminal Act (“ACCA”). Neither of these prior convictions “consist of violence or resulted in anything” and do not satisfy ACCA's force clause. (Doc. No. 1 at 4). Without the ACCA enhancement, his guideline range would have been 36 months' imprisonment. His enhanced sentence and supervised release sentence are both based on the illegal ACCA “root” and therefore his present supervised release revocation sentence violates due process. (Doc. No. 2 at 1-2). Petitioner claims that he is currently “under” the ACA sentence and the supervised release revocation sentence that came from it. (Doc. No. 2 at 5). Further, he argues that the supervised release sentence violates due process because the guideline range increases to the level for Grade A violations pursuant to U.S.S.G. § 7B1.1, if the violation is a crime of violence under § 4B1.2. Applying this section to Petitioner violates due process pursuant to Johnson, which must be applied retroactively in the guidelines context. Petitioner contends that his claim is cognizable under § 2255 because he is serving an ACCA supervised release sentence that exceeds the statutory maximum and is based on a constitutional error. This petition is timely under 2255(f)(3) because it was filed within a year of Johnson's issuance.

         The Government does not contest the instant petition's timeliness. Instead, it argues that Petitioner's Johnson claim is procedurally defaulted because he did not raise it on direct appeal. In addition, the Government asserts that the 24-month sentence Petitioner received after the term of supervised release was revoked did not exceed the statutory maximum he could have received if he had only been sentenced for a § 922(g) offense without the ACCA enhancement. Therefore, even if Petitioner could show he was improperly sentenced to five years of supervised release rather than three years, he has not shown he is entitled to a reduced sentence because the violation occurred and the revocation sentence imposed were within the statutory limits for a non-enhanced § 922(g) offense.

         II. ...


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