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Holmes v. United States

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

December 7, 2017

DARIUS ANDRE HOLMES, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

         Darius Andre Holmes was convicted by a jury of violating 18 U.S.C. § 922(g) (possession of a firearm by a convicted felon) and 21 U.S.C. §§ 841(a)(1) & (b)(1)(C) (distribution of heroin), and given an enhanced sentence of 262 months under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). See docs. 1[1] (indictment); 50 (superseding indictment); 85 (jury verdict); 106 (judgement for 262 months' imprisonment); 124 (mandate affirming judgment, filed April 4, 2017). Invoking 28 U.S.C. § 2255, he contends counsel was ineffective for failing to object to the findings of his Presentence Investigative Report or to argue (either in this Court or on appeal) that his ACCA-predicate convictions[2] did not qualify as “crimes of violence” after Johnson v. United States, 576 U.S. ___, 135 S.Ct. 2551 (2015). Doc. 125 at 4-5.

         I. ANALYSIS

         A. The Johnson Decision

         The ACCA provides enhanced penalties for defendants who are (1) convicted of being felons in possession of firearms in violation of 18 U.S.C. § 922(g), and (2) have “three prior convictions . . . for a violent felony or a serious drug offense, or both.” 18 U.S.C. § 924(e)(1). Plain vanilla, felon-in-possession convictions fetch a maximum 10 year sentence, see 18 U.S.C. § 922(a)(2), while the ACCA enhancement mandates a 15 year minimum (and a maximum of life). 18 U.S.C. § 924(e)(1).

         To qualify as an ACCA “violent felony, ” the crime must be an offense that (1) “has as an element the use, attempted use, or threatened use of physical force against the person of another”; (2) “is burglary, arson, or extortion, [or] involves the use of explosives”; or (3) “otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. § 924(e)(2)(B)(i)-(ii). These three definitions are known, respectively, as (1) the elements clause, (2) enumerated crimes clause, and (3) residual clause. Johnson held that that “residual clause” was unconstitutionally vague. See 135 S.Ct. 2551, 2557. It said nothing, however, about ACCA enhancements predicated on convictions for “serious drug offenses” or “violent felonies” as defined by ACCA provisions other than the residual clause. See, e.g., Johnson, 135 S.Ct. at 2563 (“Today's decision does not call into question application of the Act to the four enumerated offenses, or the remainder of the Act's definition of a violent felony, ” much less its definition of “serious drug offense”). After Johnson, enhancements based on those offenses remain valid. United States v. Tinker, 618 Fed.Appx. 635, 637 (11th Cir. 2015) (convictions that qualify as violent felonies under the “elements” clause of the ACCA, rather than the “residual” clause, survive Johnson).

         B. Holmes' Convictions

         Holmes disputes that his ACCA-enhanced sentence survives Johnson. Doc. 125. But the Johnson decision only invalidated the residual clause of the ACCA; serious drug offenses and violent felonies within the elements clause remain ACCA predicates.

         A “serious drug offense” is defined as “an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance . . ., for which a maximum term of imprisonment of ten years or more is prescribed by law.” 18 U.S.C. § 924(e)(2)(A)(ii). Holmes concedes that his conviction for possession with intent to distribute cocaine in violation of O.C.G.A. § 16-13-30(b), (d) (see doc. 127, Exh. G) qualifies as an ACCA predicate offense. He disputes his other cocaine sale convictions, arguing that “sales” do not qualify as “distributing” within the meaning of the ACCA.” Doc. 125 at 15-24. He's wrong.

         Holmes' three 2008 convictions and three 2012 convictions[3] for Georgia sale of cocaine fit the § 924(e) definition of a “serious drug offense” because: (1) it was a state law crime, (2) selling is a form of distributing, (3) cocaine is a controlled substance, and (4) the crime was punishable by up to thirty years at the time he was convicted. See, e.g., Green v. United States, 2017 WL 1100443 at *2 & n. 3 (S.D. Ga. Jan. 9, 2017). The statute provided “Except as authorized by this article, it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell or possess with intent to distribute any controlled substance, ” and it made such a violation “with respect to a controlled substance in Schedule I or narcotic drugs in Schedule II” punishable “by imprisonment for not less than five years nor more than 30 years” on the first offense. O.C.G.A. §§ 16-13-30(b), (d) (version in effect from 1990-2012); Dennard v. State, 265 Ga.App. 229, 229 (2004) (cocaine qualifies as narcotic drug). These offenses clearly remain qualifying “serious drug offenses” for ACCA sentence-enhancing purposes.

         After Johnson, Holmes' convictions for possession with intent to distribute cocaine and the sale of cocaine in violation of O.C.G.A. § 16-13-30(b) remain qualifying ACCA predicates. See doc. 127, Exhs. E, F, & G; see also In re Williams, 826 F.3d 1351, 1356 (2016) (prior convictions for a “felony drug offense” are “not even arguably affected by Johnson's holding regarding the ACCA's residual-clause definition of a violent felony.”). That's at least four[4] qualifying ACCA-enhancing predicate offenses. 18 U.S.C. § 924(e)(1). Holmes' claim that counsel was ineffective for failing to investigate and object to the PSR -- thus disqualifying these offenses from forming the basis of his armed career criminal enhancement -- is dead on arrival. Counsel cannot be deficient for failing to advance an utterly meritless argument to the court. See Jones v. Barnes, 463 U.S. 745, 751 (1983) (there is no “constitutional right to compel appointed counsel to press nonfrivolous points”); Denson v. United States, 804 F.3d 1339, 1342 (11th Cir. 2015) (the failure to raise “a meritless objections does not constitute deficient performance”); Nyhuis, 211 F.3d at 1344 (to prevail on an IAC claim, the claim itself “must have merit”); Matire, 811 F.2d at 1434 (same).

         III. CONCLUSION

         Darius Andre Holmes thus has passed the ACCA three-conviction threshold for enhancement as an armed career criminal, and counsel was not ineffective for failing to argue otherwise. Accordingly, his § 2255 motion should be DENIED on the merits.

         This Report and Recommendation (R&R) is submitted to the district judge assigned to this action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of service, any party may file written objections to this R&R with the Court and serve a copy on all parties. The document should be captioned “Objections to Magistrate Judge's Report and Recommendations.” Any request for additional time to file objections should be filed with the Clerk for consideration by the assigned district judge.

         After the objections period has ended, the Clerk shall submit this R&R together with any objections to the assigned district judge. The district judge will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to timely file objections will result in the waiver of rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. ...


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