United States District Court, S.D. Georgia, Dublin Division
MAURICE M. O'NEAL, Petitioner,
UNITED STATES OF AMERICA, Respondent.
MAGISTRATE JUDGE'S REPORT AND
K. EPPS, UNITED STATES MAGISTRATE JUDGE
Maurice M. O'Neal has filed with this Court a second and
successive motion under 28 U.S.C. § 2255 to vacate, set
aside, or correct his sentence. The Court REPORTS and
RECOMMENDS Respondent's motion to dismiss be GRANTED
(doc. no. 4), Petitioner's § 2255 motion be
DISMISSED, this civil action be CLOSED, and a final judgment
be ENTERED in favor of Respondent.
Indictment and Agreement to Plead Guilty
4, 2011, the grand jury in the Southern District of Georgia
charged Petitioner in a one-count indictment with possession
of a firearm and ammunition by a convicted felon, in
violation of 18 U.S.C. § 922(g)(1). United States v.
O'Neal, CR 311-006, doc. no. 1 (S.D. Ga. May 4,
2011) (hereinafter “CR 311-006”). The Court
appointed attorney Matthew Waters under the Criminal Justice
Act to represent Petitioner. Id., doc. no. 9.
January 19, 2012, Petitioner pled guilty to the felon in
possession charge, and in exchange the government agreed not
to object to a recommendation for a two-point acceptance of
responsibility reduction and to move for an additional
one-point reduction under the Sentencing Guidelines.
Id., doc. nos. 37-39. The government also agreed to
recommend Petitioner receive a sentence in the bottom half of
the final Guideline range determined by the Court at the
sentencing hearing. Id., doc. no. 38, p. 2. For his
part, Petitioner admitted that he had possessed a specific
firearm and ammunition after having been previously convicted
of two prior felonies: burglary and theft by taking.
Id. at 4.
United States District Judge Dudley H. Bowen, Jr., conducted
the change of plea proceedings and accepted Petitioner's
guilty plea, the government requested that a supplemental
plea colloquy be held and filed an amended penalty
certification. Id., doc. nos. 40, 41, 56. The
government made the request because the United States
Probation Office discovered, while preparing the Presentence
Investigation Report (“PSI”), Petitioner had
additional convictions that were not previously known but
which qualified him for an Armed Career Criminal Act
(“ACCA”) enhancement under 18 U.S.C. §
924(e). The enhancement applies when a defendant has at least
three prior convictions for a violent felony or serious drug
offense. 18 U.S.C. § 924(e). The statutory minimum
penalty for an ACCA conviction is fifteen years imprisonment,
and the statutory maximum is life imprisonment. CR 311-006,
doc. no. 41. Without the § 924(e) enhancement, the felon
in possession count carried a possible statutory sentence of
not more than ten years imprisonment. 18 U.S.C. §
acknowledged the government's request and the increased
penalty certification, but he expressed his willingness to
stand by his guilty plea and waive any supplemental plea
proceedings. CR 311-006, doc. no. 42. When Judge Bowen
convened the sentencing proceedings, he again reviewed the
change in sentencing circumstances since entry of the guilty
plea. Id., doc. no. 54, pp. 1-20. Judge Bowen
confirmed with Petitioner, after giving him additional time
to discuss the matter with counsel and revisiting the factual
basis for the guilty plea, that Petitioner did indeed wish to
proceed with sentencing. Id.
set Petitioner's Total Offense Level at thirty, Criminal
History Category at V, and Guideline imprisonment range at
151 to 188 months. PSI ¶¶ 22, 52. However, the PSI
specifically delineated that Petitioner had at least four
previous convictions, two for burglary and two for aggravated
assault, that made him subject to an ACCA enhancement under
18 U.S.C. § 924(e). PSI ¶¶ 19, 27. Because the
sentence could not be less than the statutory minimum under
the ACCA, the Guideline sentence was 180 to 188 months. PSI
¶ 52. No objections to the PSI were filed. See
PSI Add.; see also CR 311-006, doc. no. 54.
hearing from defense counsel and Petitioner in mitigation,
Judge Bowen imposed a sentence of 120 months imprisonment,
along with a five-year term of supervised release, a $2, 500
fine, and a $100 special assessment. First Sent. Tr., pp.
26-27; CR 311-006, doc. no. 48. The judgment entered on May
11, 2012, and Petitioner signed a Notice of Post-Conviction
Consultation Certification stating that after consulting with
his attorney, he had decided not to file an appeal. CR
311-006, doc. nos. 47, 48.
government, however, did file an appeal because Petitioner
had been sentenced below the ACCA statutory minimum.
Id., doc. no. 51. The Eleventh Circuit vacated the
sentence with directions that Petitioner be sentenced in
accordance with the ACCA's mandatory minimum fifteen-year
sentence, based on findings that: (1) Petitioner's two
prior burglaries and two prior aggravated assault convictions
qualified as ACCA predicate offenses, (2) Petitioner was
ineligible for safety-valve relief, and (3) the government
did not file a substantial assistance motion. Id.,
doc. no. 59. On May 30, 2013, Judge Bowen vacated the
120-month sentence and re-sentenced Petitioner to fifteen
years imprisonment, with all other terms to remain the same.
Id., doc. nos. 64, 65, 74.
time, Petitioner did appeal. Id., doc. no. 66. On
June 5, 2014, the Eleventh Circuit affirmed the new sentence.
Id., doc. no. 77. The Eleventh Circuit also granted
the motion of Mr. Waters to withdraw from further
representation of Petitioner. Id. at 2.