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.

Mitchell v. United States

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

May 9, 2018

JAMES T. MITCHELL, 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 “Emergency Motion to Correct Sentence Under 28 U.S.C. § 2255” (Document No. 29), filed on June 23, 2016; and (2) The United States' “Motion to Withdraw Referral to Magistrate Judge and To Stay Case Pending Supreme Court Ruling” (Document No. 36), filed on August 1, 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. 30.)

         FACTUAL AND PROCEDURAL BACKGROUND

         A Criminal Action No. 2:99-00083:

         On June 10, 1999, Movant pled guilty to a single count Indictment charging him with possession with intent to distribute cocaine base in violation of 21 U.S.C. § 841(a)(1). (Criminal Action No. 2:99-00083, Document No. 5 - 7.) A Presentence Investigation Report was prepared. The District Court determined Movant had an Base Offense Level of 32, and a Total Offense Level of 37, the Court having applied an enhancement pursuant to U.S.S.G. § 4B1.1 because Movant met the criteria for career offender status. The District Court sentenced Movant on August 31, 1999, to a 262-month term of imprisonment to be followed by a five-year term of supervised release. (Id., Document No. 19.) The District Court also imposed a $100 special assessment and a $1, 000 fine. (Id.) Movant did not file a direct appeal with the Fourth Circuit Court of Appeals.

         B. Section 3582 Motions:

         On March 21, 2008, Petitioner filed his first letter-form Motion to Reduce his Sentence pursuant to 18 U.S.C. § 3582 based upon the lowering of the crack cocaine guideline ranges. (Id., Document No. 22.) By Memorandum Opinion and Order entered on June 11, 2009, the District Court denied Movant's letter-form Motion. (Id., Document No. 23.) Movant filed his second Section 3582 Motion on October 18, 2013. (Id., Document No. 24.) By Order entered on March 24, 2014, the District Court denied Movant's Motion after finding that Movant was not eligible for a sentencing reduction under the amended Guidelines. (Id., Document No. 25.)

         C. Section 2255 Motion:

         On June 23, 2016, Movant, by court-appointed counsel, Federal Public Defender Christian M. Capece and First Assistant Federal Public Defender David R. Bungard, filed his “Emergency Motion to Correct Sentence Under 28 U.S.C. § 2255.” (Civil Action No. 2:16-05662, Document No. 29.) In support of his Motion, Movant alleges that he is entitled to relief based upon the United States Supreme Court's decision in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). (Id.) Movant argues that he is entitled to relief under “Section 2255(f)(3) because he filed [his Motion] within one year of the Supreme Court's decision in Johnson - a ruling which established a ‘newly recognized' right that is ‘retroactively applicable to cases on collateral review.'” (Id.) Movant contends that in light of Johnson, he “is no longer a career offender because his 1994 conviction for conspiracy to commit murder no longer qualifies as a career offender ‘crime of violence.'” (Id.) Additionally, counsel states that they were unable to fully brief the issues presented in the Section 2255 Motion due to time constraints and “counsel will ask for leave to supplement this petition at a later time.” (Id., p. 3.)

         By Order entered on June 30, 2016, the undersigned directed Movant to file any supplemental brief in support of his Section 2255 Motion by August 1, 2016, and directed the United States to file its Answer by September 12, 2016. (Id., Document No. 32.) On August 1, 2016, Movant, by counsel, filed his “Supplemental Memorandum in Support of Motion to Correct Sentence Under 28 U.S.C. § 2255.” (Id., Document No. 35.) Movant argues that under Johnson, Movant “is no longer a career offender because his prior West Virginia conviction for conspiracy to commit murder no longer qualifies as a crime of violence under any portion of the career offender definition.” (Id.) In support, Movant explains that in Johnson, the Supreme Court held that the residual clause of the Armed Career Criminal Act [“ACCA”] was unconstitutionally vague. (Id.) Movant, therefore, argues that “[i]t follows that the identical residual clause in the career offender provision, U.S.S.G. § 4B1.2(a)(2), is also void for vagueness.” (Id.) Movant argues that he is entitled to relief under “Section 2255(h)(2) because Johnson establishes a ‘new rule of constitutional law' that has been ‘made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” (Id.) Thus, Movant concludes that his prior conviction does not trigger the application of the Section 4B1.1 career offender enhancement. (Id.) Movant argues that his prior conviction does not qualify as crimes of violence under the enumerated offenses or the force clause of the career offender provision. (Id.) Movant, therefore, argues that “in light of Johnson, [he] no longer qualifies as a career offender, and his current sentence violates due process of law in violation of 28 U.S.C. § 2255(a).” (Id.)

         On August 1, 2016, the United States filed its Motion to Withdraw Referral to Magistrate Judge and To Stay Case Pending Supreme Court Ruling. (Id., Document No. 36.) Specifically, the United States requests that the District Court (1) withdraw the referral of the case to the Magistrate Judge, and (2) stay the case pending resolution of Beckles v. United States, ___ U.S. ___, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016). (Id.) On August 4, 2016, Movant, by counsel, filed his Response in Opposition. (Id., Document No. 37.)

         On October 5, 2016, following the granting of an extension of time, the United States filed its Response to Movant's Section 2255 Motion. (Id., Document No. 40.) First, the United States claims that Movant has not satisfied his burden of proving that Johnson made any difference in his original sentence. (Id., pp. 5 - 8.) Second, the United States argues Movant's claims were not timely filed. (Id., pp. 8 - 16.) Third, the United States contends that Movant “procedurally defaulted his claims and has not demonstrated good cause to excuse his default.” (Id., pp. 16 - 18.) Fourth, the United States argues that Johnson does not apply on collateral review to Guideline issues. (Id., pp. 18 - 23.) Finally, the United States claims that Movant's West Virginia conviction for conspiracy to commit murder with the use of a firearm constitutes a crime of violence for purposes of satisfying the career offender guidelines. (Id., pp. 23 - 30.)

         Movant, by counsel, filed his Reply on November 8, 2016. (Id., Document No. 43.) First, Movant argues that he “has no burden of production or persuasion to show that the district court previously relied upon the residual clause U.S.S.G. § 4B1.2(a) for sentencing him as a career offender in order to obtain 28 U.S.C. § 2255 relief from an unlawfully imposed sentence.” (Id., pp. 1 - 5.) Second, Movant contends that his Section 2255 Motion is timely because it was filed within one year of the Supreme Court's decision in Johnson. (Id., pp. 6 - 8.) Third, Movant argues that “[b]ased on cause and prejudice, [Movant's] § 2255 Motion is not barred by procedural default under the Supreme Court's decision in Reed v. Ross.” (Id., pp. 8 - 10.) Fourth, Movant claims that Johnson applies retroactively to the Guidelines. (Id., pp. 11 - 12.) Fifth, Movant asserts that the “Supreme Court's decision in Castleman did not alter the requirement that in order for a prior felony conviction to be considered as a ‘crime of violence,' a necessary element of the offense had to include the use, attempted, or threatened use of violent, physical force.” (Id., pp. 12 - 14.) Finally, Movant claims that the United States “fails to identify any legal element for [Movant's] conviction for conspiracy to commit murder which includes the use, attempted, or threatened use of violent physical force.” (Id., pp. 14 - 15.)

         On March 23, 2017, Movant, by counsel, filed his “Supplemental Memorandum in Support of § 2255 Motion to Correct Sentence” in light of the Supreme Court's decision in Beckles v. United States, ___ U.S. ___, 137 S.Ct. 886, 197 L.Ed.2d 145 (2017). (Id., Document No. 44.) Specifically, Movant argues that “Beckles applies only to the current advisory Guideline scheme.” (Id.) Movant claims that because he was “sentenced before United States v. Booker, 543 U.S. 220 (2005), and the advent of advisory Sentencing Guidelines, Beckles does not resolve his pending § 2255 motion.” (Id.) Movant stresses that “[i]n concluding that a defendant may not raise a vagueness challenge to the Guidelines, the [Beckles] Court repeatedly noted the advisory nature of the Guideline scheme under which Beckles was sentenced.” (Id.) Movant explains that he was sentenced in 1999, when the Guidelines were mandatory. (Id.) Movant claims that “the mandatory Guideline scheme in place when [Movant] was sentenced did, in ...


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.