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McMullin v. Saad

United States District Court, N.D. West Virginia

January 11, 2018

JOSEPH PATRICK MCMULLIN, Petitioner,
v.
JENNIFER SAAD, Warden, Respondent.

          Keeley Judge.

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE.

         I. Background

         On December 2, 2016, the pro se Petitioner, Joseph Patrick McMullin (“McMullin”), an inmate then-incarcerated at FCI Gilmer in Glenville, West Virginia, [1] filed a petition for writ of habeas corpus pursuant to 28 U.S.C. §2241, challenging his Armed Career Criminal Act (“ACCA”) sentence enhancement in light of the United States Supreme Court's recent decision in Johnson v. United States.[2] Pursuant to a Notice of Deficient Pleading issued by the Clerk of Court, on December 12, 2016, Petitioner paid the $5.00 filing fee. ECF No. 5. On March 15, 2017, Magistrate Judge James E. Seibert conducted a preliminary review of the file, determined that summary dismissal was not appropriate at that time, and directed the Respondent to answer the petition. ECF No. 6. On March 21, 2017, the Respondent filed a Motion to Dismiss and Response to to Show Cause with a memorandum in support. ECF Nos. 7 & 8. Before the Court had an opportunity to issue a Roseboro Notice, on April 11, 2017, Petitioner filed a response in opposition. ECF No. 10.

         By Order entered on September 15, 2017, this case was reassigned from Magistrate Judge James E. Seibert to the undersigned.

         This matter is now pending before the undersigned for a Report and Recommendation pursuant to LR PL P 2.

         II. Factual and Procedural History[3]

         A. Conviction and Sentence

         On May 16, 2011, in the United States District Court for the Eastern District of Michigan, a Criminal Complaint was filed against Petitioner in Case No. 2:11cr20345. ECF No. 1. On May 26, 2011, the grand jury returned a one-count indictment against Petitioner, charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

         On June 4, 2012, pursuant to a written plea agreement containing a waiver of the right to file a direct appeal, [4] Petitioner pled guilty to the charge. See ECF No. 37 & 38. On September 10, 2012, and continuing on September 27, 2012, the sentencing Court conducted sentencing hearings; Petitioner was sentenced to 180 months of imprisonment, the minimum sentence mandated under the ACCA, to be followed by four years of supervised release. See ECF No. 44 at 2 - 3; see also ECF No. 83 at 1.

         B. Appeal

         Although Petitioner did not file a direct appeal, he did appeal the denial of his motion to suppress to the Sixth Circuit Court of Appeals; the District Court's decision was affirmed on January 23, 2014. ECF No. 58.

         C. Motion to Vacate

         On September 8, 2014, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence Under 28 U.S.C. § 2255 in the sentencing court, an Amended Motion to Vacate on October 31, 2014, and a second Amended Motion to Vacate on July 17, 2015, raising Johnson. ECF Nos. 61, 69, & 80. In his § 2255 motion, inter alia, [5] Petitioner argued that the sentencing Court erred by sentencing him to the ACCA's fifteen-year mandatory minimum, because he had no prior convictions that meet the ACCA's definition of “violent felony.” Id. at 5. The District Court held that, regardless of whether any of Petitioner's prior convictions were violent felonies, Petitioner still had three prior convictions that met the ACCA's definition of serious drug offenses, a fact that Petitioner did not dispute. Id. at 6. The District Court also noted that despite Plaintiff's argument to the contrary, because Johnson v. United States only struck down the “residual clause” of the ACCA, not the “serious drug offense” definition, Johnson was irrelevant to Petitioner's case. Id., n1. Accordingly, the Court found that there was no error by applying the ACCA's mandatory minimum. Id.

         Petitioner sought a certificate of appealability in the Sixth Circuit, which was denied by Order entered June 1, 2016. ECF No. 86. In his application, Petitioner reasserted his claim that his sentence was improperly enhanced because he had no prior convictions that meet the ACCA's definition of “violent felony, ” and sought relief under Johnson. Id. at 2. The Sixth Circuit's Order held that “[j]urists of reason could not disagree with the district court's resolution of McMullin's ACCA claim” and that Petitioner's sentence had been “properly enhanced under the ACCA” because of his prior convictions for “serious drug offenses.” Id. The Order further noted that the holding in Johnson “does not apply to McMullin's sentence.” Id. at 3.

         III. Contentions of the Parties

         The Petition

         The Petitioner raises four grounds for relief in his petition, which, for clarity and conciseness, have been condensed into two here:

1) he suffered a due process violation when one of his predicate convictions was changed to possession with the intent to deliver less than 50 grams of cocaine, at the denial of his § 2255 motion, after the original charge was negated by the Supreme Court's decision in Johns ...

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