Pease v. United States of America

Filing 3

ORDER: Petitioner's Motion to Vacate, Set Aside, or Correct Sentence 1 2 is DENIED. The Clerk is directed to terminate any pending motions as moot and close this file. The Clerk is further directed to terminate from pending status the motion to vacate found at 37 in the underlying criminal case, case number 8:15-cr-293-T-30JSS. Because Petitioner is not entitled to a certificate of appealability, he is not entitled to appeal in forma pauperis. Signed by Judge James S. Moody, Jr on 12/7/2016. (LN)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CARLTON T. PEASE,
Petitioner,
v.

Case No: 8:16-cv-3262-T-30JSS

UNITED STATES OF AMERICA,
Respondent.

ORDER
THIS CAUSE comes before the Court on Petitioner’s Motion to Vacate, Set Aside,
or Correct Sentence (Docs. 1 and 2), pursuant to 28 U.S.C. section 2255. The Court, having
considered the motion; the record in the criminal case, 8:15-cr-293-T-30JSS; and the
relevant law, concludes the motion should be denied.
BACKGROUND
On August 5, 2015, Petitioner was indicted on three counts of distribution, and
possession with intent to distribute, cocaine base, in violation of 21 U.S.C. sections
841(a)(1) and 841(b)(1)(C), all Class C Felonies; and one count of convicted felon in
possession of a firearm, in violation of 18 U.S.C. sections 922(g)(1) and 924(e), a Class A
Felony. (CR Doc. 1). Petitioner decided to plead guilty to all counts, and the Government
provided Petitioner with a Notice of Maximum Penalty, Elements of Offense,
Personalization of Elements and Factual Basis. (CR. Doc. 13). The penalty section of the
Notice states that the penalty for counts 1 through 3 was a prison term of not more than 20

years plus a $100 special assessment per felony. The same section also explains count 4
had a 15-year-to-life mandatory minimum prison term plus the same $100 felony special
assessment. After receiving this notice, Petitioner signed two consents regarding entry of
a guilty plea (CR Docs. 15 and 23), and the Court accepted the plea on November 16, 2015.
The Presentence Investigation Report (“PSR”) (CR Doc. 31) explained that
Petitioner qualified as an armed career criminal under USSG section 4B1.4, based on
Petitioner pleading guilty to being a convicted felon in possession of a firearm plus his
prior state court convictions for serious drugs convictions committed on separate
occasions. The prior serious drug offenses, of which there were 11, occurred between
March 2007 and June 2011, and included at least seven separate offenses for delivery of
cocaine in violation of section 893.13(1)(a)1, Florida Statutes. Petitioner’s offense level
and criminal history category resulted in a guideline range of 188 to 235 months. Petitioner
did not object to the PSR.
On February 11, 2016, the Court sentenced Petitioner to 188 months imprisonment
on each count—the bottom of the guidelines—with sentences to run concurrently.
Petitioner did not file a direct appeal, and his sentence became final on February 25, 2016.
PETITIONER’S GROUNDS FOR RELIEF
On November 23, 2016, Petitioner filed this timely1 motion to vacate, set aside, or
correct his sentence. In his motion, Petitioner raised the following three grounds:

1

The motion is timely since it was filed within a year of Petitioner’s conviction becoming
final. See 28 U.S.C. § 2255(f)(1).

2

1.

Counsel provided ineffective assistance when failing to argue that
Petitioner’s instant § 841(a) offense [sic] were not federal felony offenses
under § 4B1.1 as clarified in Moncrieffe v. Holder, 133 S.Ct. 1678 (2013),
Descamps v. United States, 133 S.Ct. 2276 (2013) and Mathis v. United
States, 136 S.Ct. 2243 (2016).

2.

Counsel provided ineffective assistance when failing to argue that
Petitioner’s prior Fla. Stat. § 893.13 offenses were not federal felony offenses
within the definition of § 4B1.1 and § 924(e) as clarified in Moncrieffe v.
Holder, 133 S.Ct. 1678 (2013), Descamps v. United States, 133 S.Ct. 2276
(2013) and Mathis v. United States, 136 S.Ct. 2243 (2016).

3.

Petitioner is actually innocent of his ACCA sentence where he does not have
at least three felony “serious drug offenses” committed on occasions
different from another.
DISCUSSION

I. Standard of Review
Ineffective-assistance-of-counsel claims are cognizable under section 2255. Lynn v.
United States, 365 F.3d 1225, 1234 n.17 (11th Cir. 2004). In Strickland v. Washington, 466
U.S. 668 (1984), the Supreme Court set forth a two-part test for analyzing ineffectiveassistance-of-counsel claims:
First, the defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that counsel was
not functioning as the “counsel” guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense. This requires showing that counsel’s
errors were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable.
Strickland, 466 U.S. at 687. Strickland requires proof of both deficient performance and
consequent prejudice. Id. at 697 (“[T]here is no reason for a court deciding an ineffective
assistance claim . . . to address both components of the inquiry if the defendant makes an
insufficient showing on one.”); Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998)

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(“When applying Strickland, we are free to dispose of ineffectiveness claims on either of
its two grounds.”). “There is a strong presumption that counsel’s performance falls within
the ‘wide range of professional assistance’[;] the defendant bears the burden of proving
that counsel's representation was unreasonable under prevailing professional norms and
that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365,
381, 106 S.Ct. 2574, 2586, 91 L.Ed.2d 305 (1986) (quoting Strickland, 466 U.S. at 689,
104 S.Ct. at 2065). “[S]trategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable.” Strickland, 466 U.S. at 690,
104 S.Ct. at 2066. “[A] court deciding an actual ineffectiveness claim must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular case, viewed
as of the time of counsel’s conduct.” Id.
Thus, Petitioner must demonstrate that counsel’s error prejudiced the defense
because “[a]n error by counsel, even if professionally unreasonable, does not warrant
setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.” Id. at 691–92. To meet this burden, Petitioner must show “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.
II. Analysis
In grounds 1 and 2, Petitioner puts forth essentially the same argument: counsel was
ineffective for failing to object to Petitioner’s sentence because neither his federal nor state
court drug offense convictions qualify for enhancement of his sentence as a career offender

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or under ACCA. More specifically, Petitioner argues that the offenses are not felonies
because the statutes containing the elements of the crimes are separate from the statutes
containing the penalties. Under Supreme Court precedent, Petitioner argues, this Court
cannot determine that his offenses were felonies under the categorical approach or
modified categorical approach because neither the drug type nor quantity were elements of
the offenses for which he was convicted.
Put simply, Petitioner’s argument is wrong. The sale of cocaine base is a qualifying
offense triggering the career offender enhancement. See United States v. Fulton, 602 F.
App'x 495, 496 (11th Cir. 2015) (approving the application of USSG § 4B1.1 for a violation
of § 841(b)(1)(C) involving cocaine base). And convictions for delivery of cocaine under
section 893.13(1)(a)1, Florida Statutes, are “serious drug offenses” under ACCA. United
States v. Horne, 206 F. App'x 942, 944 n.3 (11th Cir. 2006). Moreover, if Petitioner’s
argument were true, no drug offense under federal or Florida law would ever qualify as a
serious drug offense under ACCA, and that cannot be the case.
Because Petitioner’s argument is wrong, counsel was not deficient for not raising it.
And because counsel was not deficient, she was not ineffective. As such, grounds 1 and 2
must be denied.
Petitioner’s final ground, which argues that he is actually innocent of his ACCA
sentence, rests on the same flawed premise discussed above. Petitioner’s prior state court
convictions satisfied the three prior serious drug offense requirement under ACCA. The
Court is also satisfied that Petitioner’s multiple serious drug offenses occurred on separate
occasions based on the information contained in the PSR, to which Petitioner did not

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object. United States v. Bennett, 472 F.3d 825, 834 (11th Cir. 2006) (“[T]he district court
did not err in relying on the undisputed facts in Bennett's PS[R] to determine that his prior
convictions were violent felonies under the ACCA and, therefore, that he was an armed
career criminal.”); United States v. Wade, 458 F.3d 1273, 1277 (11th Cir. 2006) (“It is the
law of this circuit that a failure to object to allegations of fact in a PS[R] admits those facts
for sentencing purposes.”). Petitioner, therefore, is not entitled to relief on this ground.
It is therefore ORDERED AND ADJUDGED that:
1.

Petitioner’s Motion to Vacate, Set Aside, or Correct Sentence (Docs. 1 and
2) is DENIED.

2.

The Clerk is directed to terminate any pending motions as moot and close
this file.

3.

The Clerk is further directed to terminate from pending status the motion to
vacate found at Doc. 37 in the underlying criminal case, case number 8:15cr-293-T-30JSS.

CERTIFICATE OF APPEALABILITY AND LEAVE TO APPEAL
IN FORMA PAUPERIS DENIED
IT IS FURTHER ORDERED that Petitioner is not entitled to a certificate of
appealability. A prisoner seeking a writ of habeas corpus has no absolute entitlement to
appeal a district court’s denial of his petition. 28 U.S.C. § 2253(c)(1). Rather, a district
court must first issue a certificate of appealability (“COA”). Id. “A [COA] may issue . . .
only if the applicant has made a substantial showing of the denial of a constitutional right.”

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Id. at § 2253(c)(2). To make such a showing, Petitioner “‘must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims debatable or
wrong,’” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529
U.S. 473, 484 (2000)), or that “the issues presented were adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)
(internal quotation marks omitted). Petitioner has not made the requisite showing in these
circumstances.
Finally, because Petitioner is not entitled to a certificate of appealability, he is not
entitled to appeal in forma pauperis.
DONE and ORDERED in Tampa, Florida, this 7th day of December, 2016.

Copies furnished to:
Counsel/Parties of Record

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