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Copeland v. Kassell

United States District Court, N.D. West Virginia

January 11, 2018

IVAN A. COPELAND, Petitioner,
v.
S. KASSELL, Warden, Respondent.

          Keeley Judge

          REPORT AND RECOMMENDATION

          MICHAEL J. ALOI UNITED STATES MAGISTRATE JUDGE

         I. Background

         On May 15, 2017, Ivan A. Copeland (“Petitioner”), an inmate at FCI Hazelton in Bruceton Mills, West Virginia, filed a pro se petition for habeas corpus pursuant to 28 U.S.C. § 2241 challenging the validity of his enhanced sentence imposed in the United States District Court for the Eastern District of Virginia. ECF No. 1. Along with his petition, Copeland filed a motion to exceed the page limits and a Motion under Section 2241 Through 2255(e) Savings Clause. ECF Nos. 2 & 3. Pursuant to a Notice of Deficient Pleading, on May 19, 2017, Petitioner paid the $5.00 filing fee. ECF No. 6. By Order entered on May 22, 2017, the undersigned construed Petitioner's Motion under Section 2241 Through 2255(e) Savings Clause as a memorandum in support of his § 2241 petition and granted the motion to exceed the page limits. ECF No. 8.

         That same day, the undersigned made a preliminary review of the petition, determined that summary dismissal was not warranted, and issued an Order to Show Cause to the Respondent. ECF No. 9. On June 2, 2017, the Respondent filed a Motion to Dismiss and Response to Order to Show Cause with a memorandum in support. ECF Nos. 11 & 12. Because Petitioner was proceeding pro se, on June 12, 2017, a Roseboro Notice was issued. ECF No. 13. On June 16, 2017, Petitioner filed his response in opposition. ECF No. 14.

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

         II. Facts[1]

         On June 11, 2013, in the United States District Court for the Eastern District of Virginia, a Criminal Complaint was filed against Petitioner in Case No. 2:13cr91. ECF No. 1. Petitioner was arrested on June 20, 2013. ECF No. 5. On July 10, 2013, the grand jury returned an Indictment against Petitioner, charging him with three counts of Distribution and Possession with Intent to Distribute Cocaine Base, in violation of 21 U.S.C. § 841(a)(1). ECF No. 12.

         On August 21, 2013, pursuant to a written plea agreement containing a waiver of the right to appeal, Petitioner pled guilty to Count Three, Possession with Intent to Distribute 127.1 Grams of Cocaine Base. See ECF Nos. 19 & 21.

         On December 2, 2013, over the Government's objection, the court granted Petitioner's motion for a downward departure from the advisory guidelines imprisonment range of 262 - 327 months, and sentenced Petitioner to 239 months' imprisonment as a career offender under § 4B1.1(a) of the United States Sentencing Guidelines (“USSG”) and to 8 years of supervised release on Count Three, and dismissed the remaining charges. ECF Nos. 33 & 35.

         Petitioner did not file a direct appeal.

         On October 20, 2014, Petitioner filed his first Motion to Vacate under 28 U.S.C. § 2255, contending that counsel was ineffective for failing to object to his USSG § 4B1.1 career offender enhanced sentence. ECF No. 39. By Order entered January 6, 2015, the § 2255 motion was denied as meritless. ECF No. 40.

         On February 5, 2015, Petitioner moved for reconsideration [ECF No. 42], advancing the same argument he made in his first § 2255 motion: that counsel was ineffective for failing to object to his USSG § 4B1.1 career offender enhanced sentence. Four days later, on February 9, 2015, he filed a notice of appeal of the Order denying his § 2255 motion. ECF No. 44.

         By Order entered in the sentencing court on March 30, 2015, the motion for reconsideration was construed as a second or successive Motion to Vacate under § 2255 and denied. ECF No. 51.

         On August 24, 2015, by unpublished per curiam opinion, the Fourth Circuit Court of Appeals denied Petitioner's motion for a certificate of appealability on the appeal of the denial of the first § 2255 motion and dismissed the appeal. ECF No. 54.

         On October 29, 2015, Petitioner filed a notice of appeal of the sentencing court's Order denying his motion to reconsider its decision on his § 2255 motion (construed by the sentencing court as a second or successive § 2255 motion). ECF No. 57. On March 17, 2016, by unpublished per curiam opinion, the Fourth Circuit Court of Appeals dismissed the appeal as untimely filed. ECF No. 60. Copeland's petition for rehearing and rehearing en banc was denied on June 14, 2016. ECF No. 63.

         On June 27, 2016, Petitioner filed a motion pursuant to 28 U.S.C. § 2244 in the Fourth Circuit Court of Appeals, seeking leave to file a second or successive § 2255 motion pursuant to the Supreme Court's decision in Johnson v. United States, [2] challenging whether his attempted murder conviction was a crime of violence. On June 30, 2016, pro se, Petitioner filed what was in effect his third Motion to Vacate under 28 U.S.C. § 2255 in the sentencing court, along with a motion to stay it until the Fourth Circuit decided his pending § 2244 motion, arguing that he was entitled to be resentenced, because his career offender classification was unconstitutional in light of the Supreme Court's ruling in Johnson.

         On July 6, 2016, the Fourth Circuit granted the § 2244 motion. ECF No. 67.

         Thereafter, on August 12, 2016, Copeland filed an amended pro se version of his (third) § 2255 motion. ECF No. 69. On September 12, 2016, through counsel, Petitioner filed a memorandum in support. ECF No. 71. By Order entered March 7, 2017, the Eastern District of Virginia denied the Motion to Vacate, finding that that in Beckles v. United States, [3] the Supreme Court held that the Federal Sentencing Guidelines, including § 4B1.2(a)'s residual clause, are not subject to vagueness challenges, and thus Petitioner's § 2255 motion was without merit. ECF No. 72. Petitioner did not appeal.

         III. Contentions ...


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