Grant v. United States

1

SAHEED JAMAL GRANT, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

Criminal Nos. 1:18-cr-00107-MR-WCM-1

Civil No. 1:23-cv-00048-MR

United States District Court, W.D. North Carolina, Asheville Division

August 31, 2023

MEMORANDUM OF DECISION AND ORDER

Martin Reidinger, Chief United States District Judge

THIS MATTER is before the Court on the Petitioner's pro se Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody [Doc. 1]. Also pending is the Respondent's Motion to Seal [Doc. 10].

I. BACKGROUND

The Petitioner was charged with a single count of possession of a firearm after having been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1). [Crim. Case No. 1:18-cr-107 (“CR”), Doc. 1]. He pleaded guilty to that offense pursuant to a written Plea Agreement. [CR Doc. 13 at ¶ 1]. In the Plea Agreement, the Petitioner acknowledged, inter alia, that his maximum sentencing exposure was a maximum of 10 years' imprisonment but that this would increase to a minimum mandatory sentence of 15 years' imprisonment and a maximum of life if the Petitioner were found to be an armed career criminal under the Armed Career Criminal Act (ACCA). [CR Doc. 13 at ¶ 4]. The Petitioner expressly agreed to waive his appellate and post-conviction rights except for claims of ineffective assistance of counsel and prosecutorial misconduct. [Id. at ¶¶ 17-18].

A Rule 11 hearing was held before the Honorable W. Carleton Metcalf United States Magistrate Judge, on December 7, 2018. [CR Doc. 41]. The Petitioner stated, under oath, that he and counsel had reviewed the Indictment and the Plea Agreement together. [Id. at 5]. Judge Metcalf read aloud Count One of the Indictment to which the Petitioner was pleading guilty, explained the elements of the offense, and advised the Petitioner of his sentencing exposure of a maximum of 10 years' imprisonment, which could rise to a minimum of 15 years' imprisonment and a maximum of life if he were determined to be an armed career criminal. [Id. at 6-8]. The Petitioner stated that he understood the charge against him, including the maximum and minimum penalties and the elements of the offense. [Id. at 89].

The Presentence Investigation Report (“PSR”) calculated the base offense level as 14 because the offense was a violation of 18 U.S.C. § 922(g)(1) pursuant to U.S.S.G. § 2K2.1(a)(6).^[1] [CR Doc. 25 at ¶ 12]. Two levels were added because the Petitioner was in possession of a stolen firearm pursuant to U.S.S.G. § 2K2.1(b)(4)(A). [Id. at ¶ 13]. This resulted in an adjusted offense level subtotal of 16. [Id. at ¶ 17]. However, the Petitioner qualified as an Armed Career Criminal as defined in 18 U.S.C. § 924(e) because he had three previous convictions for violent felonies (North Carolina felony breaking and entering) that were committed on occasions different from each other on June 28, 2015 [see CR Doc. 25 at ¶ 26; Doc. 61 (Judgment); Doc. 7 (Information)], December 11,2015 [see CR Doc. 25 at ¶ 27], and December 12, 2015 [see id.; Doc. 6-2 (Judgment), Docs. 8, 9 (Information)]. [Id. at ¶ 18]. Accordingly the offense level was increased to 33. [Id.]. Three levels were deducted for acceptance of responsibility, resulting in a total offense level of 30. [Id. at ¶¶ 19-21]. The Petitioner had eight criminal history points, resulting in a criminal history category of IV. [Id. at ¶¶ 29-30]. The resulting guideline range was 135 to 168 months' imprisonment; however, the statutorily required sentence of 180 months' imprisonment became the guideline range. [Id. at ¶ 52].

The Court sentenced Petitioner to 180 months' imprisonment followed by three years of supervised release. [CR Doc. 31]. On direct appeal, counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967) stating that there are no meritorious grounds for appeal, but raising as a possible issue for review the continued validity of the armed career criminal sentence. The Petitioner filed pro se briefs challenging the guideline range calculation, raising claims of ineffective assistance of counsel, and suggesting that his conviction is invalid pursuant to Rehaif v. United States, 139 S.Ct. 2191 (2019). With regard to his sentence, the Petitioner argued that the armed career criminal enhancement was invalid because the breaking and entering convictions were not separated by an intervening arrest and the sentences were imposed on the same day. [See 4^th Cir. No. 19-4267, Docs. 41, 46]. The Fourth Circuit affirmed the Petitioner's conviction and sentence, and it declined to address the claims of ineffective assistance of counsel as not cognizable on direct appeal. United States v. Grant, 2022 WL 385537 (4^th Cir. Feb. 8, 2022).

The Petitioner filed the instant § 2255 action in this Court on February 19, 2023.^[2] [See Doc. 1]. The Government has filed a Response in opposition. [Doc. 6]. The Government has moved to seal several of the Response exhibits to prevent the disclosure of crime victims' personal identifying information. [Doc. 10]. The Petitioner has not replied to the Response or responded to the Motion to Seal, and the time to do so has expired. [See Doc. 3 (granting Petitioner 21 days to reply); June 23, 2023 Text-Only Order (extending the time to reply to July 17, 2023)]. This matter is ripe for disposition.

II. STANDARD OF REVIEW

A federal prisoner claiming that his “sentence was imposed in violation of the Constitution or the 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.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to promptly examine motions to vacate, along with “any attached exhibits and the record of prior proceedings ...” in order to determine whether the petitioner is entitled to any relief on the claims set forth therein. After examining the record in this matter, the Court finds that the arguments presented by the Petitioner can be resolved without an evidentiary hearing based on the record and governing case law. See Raines v. United States, 423 F.2d 526, 529 (4^th Cir. 1970).

III. DISCUSSION

A. Sentence Calculation

In his motion, the Petitioner argues that the armed career criminal enhancement was improper. Specifically, he contends that his prior breaking and entering convictions should not have been counted as separate predicate convictions because they were not separated by an arrest, and because they occurred during a crime spree on a single occasion.

To the extent that the Petitioner challenges the calculation of his sentence, such challenges were waived by his knowing and voluntary guilty plea, which expressly waived the Petitioner's post-conviction and appellate rights except for claims of prosecutorial misconduct or ineffective assistance of counsel. See generally United States v. Willis, 992 F.2d 489, 490 (4^th Cir. 1993) (“a guilty plea constitutes a waiver of all nonjurisdictional defects, including the right to contest the factual merits of the charges”); United States v. Marin, 961 F.2d 493, 496 (4^th Cir. 1992) (an appellate waiver is generally enforceable where the waiver was knowingly and voluntarily made); United States v. Lemaster, 403 F.3d 216, 200 (4^th Cir. 2005) (the Fourth Circuit does not distinguish between the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in a plea agreement). The Petitioner's present sentencing claim falls within the Petitioner's express post-conviction waiver and, accordingly, he is barred from raising them in this § 2255 proceeding.

Even if the Petitioner were not barred by the appellate waiver, his claim would still be dismissed. The Petitioner already argued on direct appeal that his predicate convictions should not have been counted as separate ACCA predicates because they were not separated by an intervening arrest. [See 4^th Cir. No. 19-4267, Docs. 41 at 2 (Pro Se Brief), 46 at 1-2 (Supplemental Pro Se Brief)]. The Fourth Circuit rejected that argument, finding that the Petitioner's sentence was procedurally and substantively reasonable, and that his guidelines range was correctly calculated. Grant, 2022 WL 385537, at *2. The Petitioner will not be allowed to relitigate the same claim here.^[3]See United States v. Roane, 378 F.3d 382, 397 (4^th Cir. 2004) (claims that were addressed on direct appeal cannot be raised again in a § 2255 proceeding).

Additionally the Petitioner's argument that his breaking and entering convictions were not “committed on occasions different from one another” because they were part of a crime spree, is procedurally defaulted from § 2255 review. 18 U.S.C. § 924(e)(1). “Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621 (1998) (“the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.”) (internal citations omitted). In order to collaterally attack a conviction or sentence based upon errors that could have been but were not pursued on direct appeal, a petitioner must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Frady, 456 U.S. 152, 167-68 (1982). Actual prejudice is then shown by demonstrating that the error worked to petitioner's “actual and substantial disadvantage,” rather than...