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Walker v. United States

United States District Court, S.D. Georgia, Dublin Division

March 10, 2017

TOMMY LEE WALKER, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS, UNI LED STALES MAGISTRATE JUDGE

         Petitioner, an inmate at the Federal Correctional Institution in Jesup, Georgia, after receiving permission from the Eleventh Circuit Court of Appeals, has filed with this Court a second motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. For the reasons set forth below, the Court REPORTS and RECOMMENDS the § 2255 motion be DENIED without an evidentiary hearing or appointment of counsel, this civil action be CLOSED, and a final judgment be ENTERED in favor of Respondent.

         I. BACKGROUND

         A. Indictment and Agreement to Plead Guilty

         On June 6, 2012, the grand jury in the Southern District of Georgia charged Petitioner under the Armed Career Criminal Act (“ACCA”) with one count of possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(9), and 924(e). United States v. Walker, CR 312-002, doc. no. 1 (S.D. Ga. June 6, 2012) (hereinafter “CR 312-002”). The Court appointed attorney Charles C. Butler under the Criminal Justice Act to represent Petitioner. Id., doc. no. 24.

         On August 16, 2012, Petitioner appeared with counsel before United States District Judge Dudley H. Bowen, Jr., and pled guilty to the single-count indictment. Id., doc. nos. 31-33. In exchange for the guilty plea, the government agreed to (1) not oppose a two-point acceptance of responsibility reduction and move for an additional one-point reduction under U.S.S.G. § 3E1.1(b); and (2) consider filing a motion, based on any “substantial assistance” provided by Petitioner, for downward departure under U.S.S.G. § 5K1.1 or a reduction of Petitioner's sentence under Fed. R. Crim. P. 35. Id., doc. no. 32, pp. 2-3.

         For his part, Petitioner admitted the factual basis for his guilty plea, including “having been previously convicted of crimes punishable by imprisonment for a term exceeding one year, which include at least three violent felony offenses committed on occasions different from one another. . . and having been previously convicted of a misdemeanor crime of domestic violence.” Id. at 7-8. The twelve felonies and one misdemeanor listed in the plea agreement are the same crimes listed in count one of the indictment, and include three burglaries, obstruction of a law enforcement officer by violence, armed robbery, and aggravated assault. CR 312-002, doc. no. 1, pp. 1-2; doc. no. 32, pp. 7-8. As part of the plea agreement, Petitioner also agreed to waive the right to file a direct appeal and the right to collaterally attack his conviction and sentence unless his sentence exceeded the statutory maximum, the sentencing court upwardly departed from the advisory Guideline range, or the government appealed the sentence. Id., doc. no. 32, p. 6.

         During the change of plea hearing, Judge Bowen established Petitioner's competence to enter a guilty plea if he so desired. Id., doc. no. 44 (“Rule 11 Tr.”), pp. 19-22. Petitioner also testified under oath that he was satisfied with the services rendered by Mr. Butler. Id. at 22. Judge Bowen reviewed the charge and heard a factual basis for Petitioner's guilty plea from Special Agent Tyra Cunningham with the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Id. at 23, 27-30. SA Cunningham testified as to the circumstances of Petitioner's arrest which led to discovery of the firearm and ammunition, as well as Petitioner's twelve prior felony convictions and a misdemeanor conviction as delineated in the indictment and plea agreement. Id. at 27-29. Petitioner affirmed the testimony of SA Cunningham was factually correct as to his possession of the firearm and ammunition, and he confirmed his prior twelve felony convictions. Id. at 30-32.

         B. Sentencing

         Upon entry of the guilty plea, the United States Probation Office prepared a Presentence Investigation Report (“PSI”). As explained in the PSI, Petitioner had “at least three prior convictions for a violent felony or serious drug offense, or both, which were committed on different occasions.” PSI ¶ 18. The PSI went on to detail three burglaries (PSI ¶¶ 23-25), obstruction of a law enforcement officer by violence (PSI ¶ 29), armed robbery (PSI ¶ 30), and aggravated assault (PSI ¶ 31) - all of which were listed in the indictment and plea agreement. CR 312-002; doc. no. 1; doc. no. 32. The PSI calculated a total offense level of thirty, a criminal history category of VI, and an advisory Guideline range of 168 to 210 months of imprisonment. PSI ¶¶ 21, 34, 35, 53. However, because Petitioner was categorized as an armed career criminal within the meaning of U.S.S.G. § 4B1.4, the Guideline sentencing range was set at the statutorily required minimum of 180 months (fifteen years) to 210 months. PSI ¶¶ 18, 53; 18 U.S.C. § 924(e). Petitioner did not file any objections to the PSI. See PSI Add.; CR 312-002, doc. no. 43, (“Sent. Tr.”), p. 3.

         At sentencing on February 13, 2013, Judge Bowen adopted the factual statements and Guideline recommendation, noting in particular the “very, very significant” statutory penalty of fifteen years to life in prison because of the application of the ACCA. Sent. Tr., pp. 3-4. Judge Bowen verified Petitioner understood the ACCA limited the availability of leniency in sentencing, and Petitioner's counsel explained the ACCA moved Petitioner's sentencing range under the advisory Guidelines had moved from a minimum of 168 months to 180 months. Id. at 5. Petitioner never voiced any objection to the delineation of his prior felony convictions in the PSI or to the applicability of the ACCA. Judge Bowen sentenced Petitioner to a term of imprisonment of 180 months, to be served consecutively to the revoked probation term Petitioner was serving for a Laurens County Superior Court sentence. Id., doc. nos. 37-38. Judgment entered on February 15, 2013. Id., doc. no. 38.

         C. Post-Conviction Proceedings

         Consistent with the plea agreement, Petitioner did not file a direct appeal. Id., doc. no. 32. However, the Clerk of Court docketed Petitioner's first § 2255 motion on February 19, 2014. Id., doc. no. 41. As the Court explained in ruling on that first motion, Petitioner's claims for relief all related to his classification under the ACCA, and were grouped as follows: (1) Petitioner's underlying federal conviction for felon in possession of a firearm and ammunition does not qualify as a crime of violence, and therefore he should not be subject to an ACCA sentence enhancement; (2) Petitioner's convictions for battery, armed robbery, and aggravated assault do not qualify as crimes of violence; and (3) Petitioner received ineffective assistance of counsel at sentencing because no objection was made to imposition of the ACCA sentencing enhancement. See id., doc. no. 46.

         Judge Bowen denied the motion on April 13, 2015, finding the valid collateral attack waiver in the plea agreement barred Petitioner's claims, but even if the claims were not barred, none of them had merit. Specific to the ACCA claims, the Court determined: (1) Petitioner's underlying federal felony conviction was not used as a predicate offense for the ACCA enhancement, but rather only made him eligible for sentencing under the ACCA if he had the requisite predicate offenses; and (2) because Petitioner had not challenged the continued viability of his three burglary convictions as ACCA predicates, Petitioner was not entitled to relief. Id., doc. nos. 46, 48.

         On June 26, 2015, the Supreme Court found the “residual clause” of the ACCA, 18 U.S.C. § 924(e)(2)(B)(ii), to be void for vagueness and a violation of the Constitution's guarantee of due process. Johnson v. United States, 576 U.S. -, 135 S.Ct. 2551, 2563 (2015). In Welch v. United States, 578 U.S.-, 136 S.Ct. 1257, 1265 (2016), the Supreme Court held Johnson is a substantive decision retroactive in cases on collateral review.

         Petitioner then sought and received permission from the Eleventh Circuit Court of Appeals to file a second or successive § 2255 motion asserting one claim that his sentence under the ACCA was unconstitutionally vague. (Doc. no. 1, Ex. A.) The Eleventh Circuit noted Petitioner had prior convictions for burglary, obstruction of an officer with threats of violence, terroristic threats and acts, armed robbery, kidnapping, and aggravated assault. (Id. at 2.) Yet, Petitioner still made a prima facie showing for filing a second § 2255 motion because (1) “[i]t is unclear which prior felonies were used to enhance [Petitioner's] sentence under the ACCA”; and (2) at the time of the request to file a second § 2255 motion it was unclear whether any of Petitioner's prior Georgia convictions, other than the conviction for obstruction of an officer with threats of violence, would qualify as predicates under the ACCA's enumerated offenses or elements clauses post-Johnson. (Id. at 3.) The Eleventh Circuit cautioned, however, it made a limited determination to allow the filing of a second motion, and because no merits had been conclusively resolved by simply allowing the motion to be filed, this Court did not owe deference to the prima facie finding. (Id. at 4.)

         Respondent argues that even after Johnson, Petitioner's sentence is valid because he has three burglary convictions that qualify as predicate convictions under the enumerated offenses portion of the ACCA's violent felony definition. (See doc. no. 3, pp. 4-9.) Moreover, Petitioner's three convictions for armed robbery, aggravated assault, and obstruction of a law enforcement officer with violence also qualify, post-Johnson, under the elements portion of the ACCA's definition of violent felony. (Id. at 9-12.) As these six predicate offenses are more than sufficient to satisfy the requirement of three predicate offenses to impose the ACCA sentencing enhancement, see 18 U.S.C. § 924(e)(1), Respondent argues Petitioner's § 2255 motion should be denied. (Id. at 12.)

         II. ...


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