Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Herod v. United States

United States District Court, S.D. West Virginia, Charleston Division

May 1, 2018

JAMES HEROD, III, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          PROPOSED FINDINGS AND RECOMMENDATION

          OMAR J. ABOULHOSN UNITED STATES MAGISTRATE JUDGE

         Pending before the Court are the following: (1) Movant's letter-form Motion to File a Timely 2255 Motion (Document No. 18), filed on March 24, 2016; and (2) Movant's pro se Motion to Vacate, Set Aside, or Correct Sentence by A Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Document No. 19), filed on April 25, 2016. By Standing Order, this matter was referred to the undersigned for submission of proposed findings of fact and a recommendation for disposition pursuant to 28 U.S.C. § 636(b)(1)(B). (Document No. 22.)

         FACTUAL AND PROCEDURAL BACKGROUND

         A Criminal Action No. 2:14-00192:

         On September 15, 2014, Movant pled guilty to a single count Information charging him with possession of a stolen firearm in violation of 18 U.S.C. §§ 922(j) and 924(a)(2). (Criminal Action No. 2:14-00192, Document No. 5 - 7.) A Presentence Investigation Report was prepared. (Id., Document No. 12.) The District Court determined Movant had an Base Offense Level of 24, and a Total Offense Level of 23, the Court having applied the following: (1) A two level enhancement pursuant to U.S.S.G. § 2K2.1(b)(4) because the firearm was stolen; and (2) A three-level reduction pursuant to U.S.S.G. § 3E1.1(a) and (b) for acceptance of responsibility.[1](Id., Document No. 12, p. 8.) The District Court sentenced Movant on December 16, 2014, to a 60-month term of imprisonment to be followed by a three-year term of supervised release. (Id., Document Nos. 9 and 10.) The District Court also imposed a $100 special assessment. (Id.) Movant did not file a direct appeal with the Fourth Circuit Court of Appeals. On March 24, 2016, Movant filed his letter-form Motion to File a Timely 2255 Motion based upon Johnson v. United States, 135 S.Ct. 2551 (2015). (Id., Document No. 18.)

         B. Section 2255 Motion:

         On April 25, 2016, Movant, acting pro se, filed his first Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody and Memorandum in Support.[2] (Civil No. 2:14-00192, Document Nos. 19 and 20.) In support of his Motion, Movant alleges that he is entitled to relief based upon the United States Supreme Court's decision Johnson v. United States, ____ U.S.____, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (Id.) Specifically, Movant argues that he received a base offense level of 24 because the Court determined Movant had two felony convictions of either a crime of violence or a controlled substance offense. (Id.) Movant explains that he had a prior 2008 conviction for trafficking in drugs and a 2010 conviction for attempted kidnapping. (Id.) Based on Johnson, Movant argues that his prior conviction for attempted kidnapping no longer constitutes a “crime of violence” for purposes of U.S.S.G. § 2K2.1(a)(2). (Id.)

         By Order entered on April 27, 2016, the undersigned directed the United States to file its Answer. (Id., Document No. 23.) The United States filed a Response on May 25, 2016. (Id., Document No. 25.) First, the United States argues that Movant's Section 2255 Motion is untimely. (Id., pp. 3 - 5.) Second, the United States contends that “Johnson and Welch do not retroactively apply to Defendant's case.” (Id., pp. 5 - 10.) Accordingly, the United States requests that Movant's Section 2255 Motion be dismissed. (Id.)

         On June 13, 2016, Movant filed his Reply. (Document No. 26.) Movant continues to argue that he was improperly enhanced to a base offense level of 24 pursuant U.S.S.G. § 2K2.1(a)(2) because his prior conviction for attempted kidnapping no longer constitutes a “crime of violence.” (Id.) Movant argues that his Motion is timely because Welch made Johnson retroactive to cases on collateral review. (Id.)

         ANALYSIS

         The relevant portion of Section 2255 provides as follows:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

         In order to be cognizable under Section 2255, claims based on other than constitutional or jurisdictional grounds must present exceptional circumstances that justify permitting a collateral attack. Stated another way, the alleged error must amount to “a fundamental defect which inherently results in a complete miscarriage of justice” or “an omission inconsistent with the rudimentary demands of fair procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). Section 2255 is not a substitute for direct appeal. United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Accordingly, errors warranting a reversal on direct appeal will not necessarily support a collateral attack. Knight v. United States, 37 F.3d 769, 772 (1st Cir.1994). See United States v. Addonizio, 442 U.S. 178, 184, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Failure to raise an issue presented in sentencing on direct appeal which is non-constitutional in nature amounts to a waiver of the right to contest the issue in Section 2255 proceedings. See United States v. Emanuel, 869 F.2d 795 (4th Cir. 1989).

         With respect to issues which are constitutional in nature, absent a showing of good cause for and prejudice from failing to appeal as may be shown by a defendant in criminal proceedings, Section 2255 is no substitute, and the failure precludes Section 2255 review. Theodorou v. United States, 887 F.2d 1336, 1339-40 (7th Cir. 1989)(“[A]bsent a showing of cause and prejudice, a defendant is barred from raising any constitutional challenge in a section 2255 proceeding which could have been raised on direct appeal.”); See also United States v. Maybeck, 23 F.3d 888, 891 (4th Cir. 1994), cert. denied, 517 U.S. 1161, 116 S.Ct. 1555, 134 L.Ed.2d 657 (1996). The standard is conjunctive. As a general matter, therefore, movants must show good cause for and prejudice from their failure to raise any constitutional issues advanced under Section 2255 on direct appeal. See Theodorou, supra, 887 F.2d at 1340. Constitutional claims of ineffective ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.