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Dumas v. United States

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

December 13, 2019

TERRY O'DELL DUMAS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EPPS UNITED STATES MAGISTRATE JUDGE.

         Petitioner, an inmate at the United States Penitentiary in Coleman, Florida, filed with this Court a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Respondent moves to dismiss the § 2255 motion. Because Petitioner did not, despite receiving additional time, (doc. no. 4), respond to the dispositive motion, it is deemed unopposed. See Loc. R. 7.5. For the reasons set forth below, the Court REPORTS and RECOMMENDS Respondent's motion to dismiss be GRANTED, (doc. no. 3), Petitioner's § 2255 motion be DISMISSED, 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 July 8, 2015, the grand jury in the Southern District of Georgia charged Petitioner with one count of possession with intent to distribute cocaine, one count of possession of a firearm in furtherance of a drug trafficking crime, and one count of possession of a firearm by a convicted felon, all of which allegedly occurred on or about March 13, 2015. United States v. Dumas, CR 115-071, doc. no. 1 (S.D. Ga. July 8, 2015) (hereinafter "CR 115-071"). Of particular importance to the present motion to dismiss, Count Two charged Petitioner with possessing a firearm in furtherance of the drug trafficking crime of possession with intent to distribute cocaine charged in Count One. Id. at 2. The Court appointed attorney Michael Millians under the Criminal Justice Act to represent Petitioner. Id., doc. no. 16.

         On October 8, 2015, Petitioner appeared with counsel and pled guilty to Counts One and Two: possession with intent to distribute cocaine and possession of a firearm in furtherance of a drug trafficking crime, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 924(c), respectively. Id., doc. nos. 21-23. Not only did the indictment charge Count Two was predicated on the drug offense charged in Count One, but Petitioner also specifically stipulated to the accuracy of the factual basis set forth in the plea agreement that he possessed the firearm as charged in Count Two in furtherance of the drug trafficking crime of possession with intent to distribute cocaine as charged in Count One. Id., doc. nos. 1, 23.

         B. Sentencing

         On January 6, 2016, Chief United States District Judge J. Randal Hall sentenced Petitioner to a term of imprisonment of twenty-one months on Count One and sixty months on Count Two, to be served consecutively to each other and to any term of imprisonment imposed upon the revocation of Petitioner's probation in Columbia County Superior Court. Id., doc. nos. 27, 29. Judgment entered on January 7, 2016. Id., doc. no. 29. In accordance with the terms of the plea agreement and Post-Conviction Consultation Certification, Petitioner did not file a direct appeal. Id., doc. nos. 23, 30.

         C. § 2255 Proceedings

         On June 27, 2019, Petitioner filed a motion to appoint counsel to help him seek relief pursuant to a new rule of constitutional law announced in United States v. Davis, ___ U.S. ___, 139 S.Ct. 2319 (U.S. June 24, 2019), that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague. Id., doc. no. 32. Chief Judge Hall explained to Petitioner he intended to recharacterize the motion to appoint counsel as a § 2255 motion and provided the requisite warnings about the consequences of such recharacterization pursuant to Castro v. United States, 540 U.S. 375 (2003). Id., doc. no. 34. Petitioner did not respond to the Castro order, and on August 30, 2019, the Clerk opened the instant civil action, nunc pro tunc to June 27, 2019. (Doc. no. 1.) Petitioner's sole claim is "that the Davis case that was made Retroactive (June 2019) dealing with the 9-24-C 3B applies to me." (Id.)

         Respondent moves to dismiss the § 2255 motion, arguing Davis does not apply to Petitioner because he was not convicted under the now-invalidated residual clause of § 924(c)(3)(B), but rather under the drug trafficking clause of § 924(c)(2). (Doc. no. 3.)

         II. DISCUSSION

         Respondent's motion to dismiss should be granted because a review of the record of Petitioner's prior criminal proceeding in CR 115-071 shows Davis does not apply to Petitioner's Count Two conviction under § 924(c). Under Rule 4 of the Rules Governing Section 2255 Proceedings For the United States District Court, "[i]f it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party." The Advisory Committee Notes for Rule 4 state, "Since the [§ 2255] motion is part of the criminal action in which was entered the judgment to which it is directed, the files, records, transcripts, and correspondence relating to that judgment are automatically available to the judge in his consideration of the motion."

         Section 924(c) requires imposition of a mandatory sentence for an individual convicted of using or carrying a firearm "during and in relation to any crime of violence or drug trafficking crime." For purposes of § 924(c), "the term 'drug trafficking crime' means any felony punishable under the Controlled Substances Act (21 U.S.C. 801 et seq.), the Controlled Substances Import and Export Act (21 U.S.C. 951 et seq.), or chapter 705 of title 46." 18 U.S.C. § ...


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