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Erdmann v. Entzel

United States District Court, N.D. West Virginia, Martinsburg

June 4, 2019

CHARLES EDWARD ERDMANN, Petitioner,
v.
FREDERICK ENTZEL, Warden, Respondent.

          REPORT AND RECOMMENDATION

          ROBERT W. TRUMBLE UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         On March 1, 2019, the pro se Petitioner, a federal inmate housed at Federal Correctional Institution (“FCI”) Hazelton, filed a Petition for Habeas Corpus Pursuant to 28 U.S.C. § 2241, challenging the validity of his sentence imposed in the District Court of North Dakota, Eastern Division. ECF No. 1. Attached to the petition was a four-page memorandum of law in support thereof. ECF No. 1-1.

         This matter is pending before the undersigned for an initial review and Report and Recommendation pursuant to Local Rule of Prisoner Litigation Procedure (“LR PL P”) 2 and 28 U.S.C. § 1915A.

         II. FACTUAL AND PROCEDURAL HISTORY[1]

         A. Conviction and Sentence

         On April 21, 2016, in the District of North Dakota, Eastern Division, a three- count superseding indictment was returned against Petitioner in 3:15-CR-80. ECF No. 29. On April 4, 2016, the Government filed an Information to Establish Prior Convictions for Enhanced Sentence Pursuant to 21 U.S.C. § 851(a)(1), which provided background on two prior convictions “to enhance the minimum mandatory sentence applicable” under 21 U.S.C. § 841(b)(1), “if the defendant [was] convicted or plead[ ] guilty.” ECF No. 26 at 1. On December 5, 2016, pursuant to a written plea agreement, Petitioner entered a plea of guilty to Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. §§ 2 and 924(c)(1)(A), and to Conspiracy to Possess with Intent to Distribute and Distribute a Controlled Substance, in violation of 21 U.S.C. §§ 841(a)(1), 846 and 18 U.S.C. § 2, as charged in Counts 2 and 3 of the Superseding Indictment, respectively. ECF Nos. 29, 44-46.

         On February 23, 2017, Petitioner was sentenced to 228 months imprisonment. ECF No. 60 at 3. Given the certification of the Petitioner's prior felony drug convictions in the Information [ECF No. 26] previously filed by the Government, the District Court noted a departure from a mandatory minimum sentence of life imprisonment.[2] ECF No. 69 at 9. In consideration of 18 U.S.C. § 3553(e) and “upon a motion of the government, ” the District Court reasoned that:

If we look at the drug trafficking conduct and the defendant's cooperation and all of the other circumstances in the case . . . that I'm allowed to consider I would think that on Count Three that the appropriate sentence is that the defendant be committed to the care, custody and control of the United States Department of Justice through its Bureau of Prisons for a period of 192 months, which is 16 years. On Count Two the Court would give 50 percent off for the defendant's cooperation on the firearm count . . . in addition to the five years that's consecutive you lose the ability to get credit for RDAP, which adds another year to the sentence as well. And I think under all those circumstances that given the defendant's cooperation an appropriate sentence of 36 months is appropriate for a total of 228 months, which by my math is 19 years.

ECF No. 69 at 31-32.

         B. Direct Appeal

         On October 3, 2017, the United States Court of Appeals for the Eighth Circuit granted Petitioner's Stipulated Motion to Voluntarily Dismiss Appeal. ECF Nos. 70, 72-1. Instead, Petitioner pursued a claim of ineffective assistance of counsel with the United States District Court for the District of North Dakota pursuant to 18 U.S.C. § 2255. ECF No. 75.

         C. Motions to Vacate, Appeals Thereof, and Other Motions for Relief

         On February 16, 2018, Petitioner filed a § 2255 Motion alleging ineffective assistance of two attorneys in violation of the Fifth and Sixth Amendments and seeking several forms of relief. ECF No. 75. Petitioner filed a 16-page Memorandum of Law with the Motion to Vacate Under § 2255 on February 16, 2018, and a supplemental brief in support thereof on May 3, 2018. ECF Nos. 75-1, 79. The Government filed a Response in Opposition on July 3, 2018, and Petitioner filed a reply on August 1, 2018. ECF Nos. 83, 84.

         The District Court denied Petitioner's § 2255 Motion on September 10, 2018, and therein declined to issue Petitioner a certificate of appealability. ECF No. 85.

         The United States Court of Appeals for the Eighth Circuit denied Petitioner's Application for a Certificate of Appealability on January 29, 2019. ECF No. 90.

         Petitioner additionally filed in the sentencing court, a “Pro Se Motion to Reduce Sentence Under the FIRST STEP Act 2018” on February 22, 2019. ECF No. 91. The Government's Response in Opposition was filed on February 28, 2019. ECF No. 92. The Court denied this Motion given that the First Step Act of 2018 went into effect after Petitioner was sentenced and provided retroactive sentencing reform only to those offenses involving cocaine and crack cocaine pursuant to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372. See First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194; ECF No. 93. Petitioner's offenses involved methamphetamine, not cocaine. ECF No. 93 at 2.

         III. PETITIONER'S CLAIMS

         In support of his § 2241 petition before this Court, Petitioner asserts as his sole ground for relief that his sentence is defective under Wheeler. ECF No. 1 at 5. Petitioner asserts that he was “sentenced as a career offender based on an instant offense of conspiracy under § 846, which no longer qualifies as a controlled substance offense.” Id. For relief, Petitioner asks this Court “to ...


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