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Oaks v. United States

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

August 28, 2019

GREGORY ALLEN OAKS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OF DECISION AND ORDER

          MARTIN REIDINGER DISTRICT JUDGE.

         THIS MATTER is before the Court on the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [CV Doc. 1][1] and the Government's Motion to Dismiss [Doc. 7]. The Petitioner is represented by Ann L. Hester of the Federal Defenders of Western North Carolina.

         I. BACKGROUND

         In October 2002, the Petitioner Gregory Allen Oaks was charged in a Bill of Indictment with one count of possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (“Count One”); one count of using a firearm during and in relation to a drug-trafficking offense, in violation of 18 U.S.C. § 924(c) (“Count Two”); and one count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). [CR Doc. 1: Indictment]. The Petitioner faced a maximum term of imprisonment of 20 years for Count One, see 21 U.S.C. § 841(a)(1) and 841(b)(1)(C), and a mandatory consecutive sentence of not less than 7 years to life for Count Two, see 18 U.S.C. § 924(c)(1)(A). As for Count Three, as charged, the Petitioner faced a statutory maximum of 10 years, see 18 U.S.C. § 924(a)(2). However, the Government subsequently filed a Notice, advising the Petitioner that the Government intended to prosecute him as an Armed Career Criminal pursuant to the Armed Career Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), in light of the Petitioner's prior convictions for the following:

(1) A 1979 Tennessee conviction for Criminal Sexual Conduct in the First Degree, for which the Petitioner was sentenced to a term of 15 years' imprisonment;
(2) A 1985 North Carolina conviction for Assault with a Deadly Weapon Inflicting Serious Injury (“AWDWISI”), for which the Petitioner was sentenced to a term of three years' imprisonment;
(3) A 1987 Tennessee conviction for Aggravated Assault, for which the Petitioner was sentenced to a term of two years' imprisonment;
(4) A 1993 Tennessee conviction for Felony Escape, for which the Petitioner was sentenced to a term of one year's imprisonment; and (5) A 1993 Tennessee conviction for Aggravated Robbery, for which the Petitioner was sentenced to a term of eight years' imprisonment.

[CR Doc. 15: ACCA Notice]. This Notice increased the Petitioner's potential maximum punishment to a term of 15 years to life. See 18 U.S.C. §§ 922(g)(1) and 924(e)(1).

         In March 2003, a jury found the Petitioner guilty on all three counts. [CR Doc. 34: Jury Verdict]. In preparation for sentencing, a probation officer prepared a Presentence Report (PSR). In calculating the Petitioner's offense level, the probation officer classified the Petitioner as both an armed career criminal under 18 U.S.C. § 924(e) and U.S.S.G. § 4B1.4 and a career offender under U.S.S.G. § 4B1.1. [CR Doc. 77: PSR at 7 ¶ 36]. Because the offense level for armed career criminal was greater than that for career offender, see U.S.S.G. § 4B1.4, the probation officer recommended applying the armed career criminal offense level, for a total offense level (TOL) of 34. [Id.]. As for the Petitioner's criminal history, the probation officer calculated a total of 10 criminal history points, which would have established a criminal history category (CHC) of V. However, because of the application of the Armed Career Criminal Act, see U.S.S.G. § 4B1.4(c)(2), the Petitioner's CHC became VI. [Id. at 13 ¶ 58]. Based on a TOL of 34 and a CHC of VI, the Petitioner's Guidelines range was calculated to be 262 to 327 months, plus a mandatory consecutive sentence of not less than 7 years for Count Two. [Id. at 21 ¶ 110].

         The Petitioner's sentencing hearing was held on January 29, 2004, before the Honorable Lacy H. Thornburg, United States District Judge.[2] At the hearing, the Court adopted the Guidelines range as calculated in the PSR and sentenced the Petitioner to a term of 240 months' imprisonment on Count One; a term of 300 months' imprisonment on Count Three, to run concurrently with Count One; and a term of 84 months on Count Two, to run consecutively to Counts One and Three, for a total of 384 months' imprisonment. [CR Doc. 52].

         The Petitioner appealed. [CR Doc. 51]. On appeal, the Fourth Circuit Court of Appeals affirmed the Petitioner's convictions but vacated the sentence and remanded for resentencing due to the lack of factual findings to support the brandishing enhancement for the § 924(c) conviction. [See CR Doc. 58]. On remand, the Court made the requisite findings to support the brandishing enhancement and sentenced the Petitioner to the same sentence. [CR Doc. 67]. The Petitioner again appealed [CR Doc. 64], and his convictions and sentence were affirmed on August 31, 2007. [CR Doc. 78].

         On June 6, 2016, the Petitioner filed the present motion to vacate his sentence under 28 U.S.C. § 2255, arguing that his sentence was improperly enhanced under the ACCA in light of Johnson v. United States, 135 S.Ct. 2551 (2015). [CV Doc. 1]. Upon the request of the Government, this matter was stayed pending the Supreme Court's decision in Beckles v. United States, 137 S.Ct. 886 (2017). [CV Doc. 6]. Following the Beckles decision, the Government filed a motion to dismiss the Petitioner's motion. [CV Doc. 7]. The Petitioner filed a response in opposition to the motion to dismiss. [CV Doc. 8]. At the request of the Court [CV Doc. 9], the parties filed supplemental briefs in April 2018 [CV Docs. 10, 11].

         Having been fully briefed, this matter is ripe for disposition.

         II. STANDARD OF REVIEW

         Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the argument presented by the Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970).

         III. DISCUSSION

         A. Procedural Default

         The Government first argues that the Petitioner's Johnson claim is subject to dismissal because he failed to raise such claim on direct review and he has not shown cause or prejudice to excuse that procedural default. In support of this argument, the Government cites Whiteside v. United States, in which the Fourth Circuit noted that “alleged futility cannot serve as ‘cause' for a procedural default in the context of collateral review.” 775 F.3d 180, 185 (4th Cir. 2014) (en banc), cert. denied, 135 S.Ct. 2890 (2015).

         It is well-established that where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised on collateral review only if the defendant can first demonstrate cause and actual prejudice or that he is actually innocent of the conviction he challenges. Bousley v. United States, 523 U.S. 614, 622 (1998); see also Trevino v. Thaler, 569 U.S. 413, 421 (2013) (“A prisoner may obtain federal review of a defaulted claim by showing cause for the default and prejudice from a violation of federal law.”) (quoting Martinez v. Ryan, 566 U.S. 1, 10 (2012)). With respect to the cause-and-prejudice standard, a petitioner must demonstrate (1) the existence of cause for a procedural default that “turns on something external to the defense”; and (2) “actual prejudice resulting from the errors of which he complains.” United States v. Pettiford, 612 F.3d 270, 280 (4th Cir. 2010) (citations omitted).

         There are, however, exceptions to this cause-and-prejudice standard. In Reed v. Ross, the Supreme Court recognized three specific situations in which the novelty of a constitutional claim would operate as the functional equivalent for “cause” relieving a defendant's failure to raise the issue directly:

First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may overturn a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. And, finally, a decision may disapprove a practice this Court arguably has sanctioned in prior cases.

468 U.S. 1, 17 (1984) (internal citations, alterations, and quotation marks omitted).

         This case falls within the second category of cases identified by Reed. When the Petitioner was sentenced in 2006, there was a “longstanding and widespread practice” of imposing punishment under the residual clause and a “unanimous body of lower court authority” approving the use of the residual clause. See Id. The Fourth Circuit had expressly ruled that the “ACCA is not void for vagueness.” United States v. Presley,52 F.3d 64, 68 (4th Cir.), cert. denied, 516 U.S. 891 (1995). Every other circuit to consider the issue also had expressly rejected the type of void-for-vagueness challenges that ultimately prevailed in Johnson. See, e.g., United States v. Childs,403 F.3d 970 (8th Cir.), cert. denied, 546 U.S. 954 (2005); United States v.Sorenson,914 F.2d 173, 175 (9th Cir. 1990), cert. denied, 498 U.S. 1099 (1991); United States v. Veasey, No. 95-5060, 1995 WL 758439, *2 (6th Cir. Dec. 21, 1995) (unpublished). Thus, under Reed, the Petitioner has established “cause” for failing to raise a vagueness challenge to the ACCA's residual clause on direct appeal. See Reed, 468 U.S. at 17 (“By definition, when a case falling into one of the first two categories is given retroactive application, there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a state court to adopt the position that this Court has ultimately adopted. Consequently, the ...


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