Draine v. USA-2255
Filing
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MEMORANDUM OPINION. Signed by Judge Roger W Titus on 8/13/2018. (c/m 08/13/2018 - jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WILLIAM HENRY DRAINE,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.
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Criminal No. RWT-10-0597
Civil No. RWT-16-2225
MEMORANDUM OPINION
Pending before the Court are Petitioner’s (1) Motion Under 28 U.S.C. § 2255 to Vacate,
Set Aside, or Correct Sentence (“Motion to Vacate”) (ECF No. 50), (2) Motion for Leave of
Court Granting Request Pursuant to Rule 6 for Additional Discovery (“Motion for Discovery”)
(ECF No. 53), and (3) Motion Requesting Leave to Amend his Motion to Vacate Pursuant to
Federal Rule of Civil Procedure 15(a) (“Motion to Amend”) (ECF No. 54). For the reasons
discussed below, the Court will deny each motion.
I. Background
On February 7, 2011, Petitioner pleaded guilty to (1) possession with intent to distribute
controlled substances, in violation of 21 U.S.C. § 841(a)(1), and (2) possession of a firearm and
ammunition after a felony conviction, in violation of 18 U.S.C. § 922(g). ECF No. 23. In
preparation for sentencing, the United States Probation Office (“Probation”) determined
Petitioner to be an armed career criminal, pursuant to the Armed Career Criminal Act
(“ACCA”), 18 U.S.C. § 924(e), based on a prior conviction for a violent felony, armed robbery,
and three prior convictions for serious drug offenses. Presentence Report (“PSR”) ¶¶ 24, 42.
This finding resulted in a higher offense level under United States Sentencing Guidelines
(“U.S.S.G.” or “Guidelines”) § 4B1.4(b)(3)(A).
Id.
Petitioner’s total offense level was
determined to be 31 and his criminal history category to be VI, resulting in a Guidelines range of
188 to 235 months imprisonment. Id. ¶ 55. On July 28, 2011, the Court sentenced Petitioner to
180 months imprisonment, the mandatory minimum under the ACCA, followed by five years of
supervised release. ECF No. 47. Petitioner did not appeal his sentence.
On June 17, 2016, Petitioner filed his Motion to Vacate.
ECF No. 50.
On
September 7, 2016, the Government filed a Response in Opposition to Petitioner’s Motion to
Vacate, ECF No. 51, to which Petitioner filed a Reply on September 26, 2016, ECF No. 52. On
October 28, 2016, Petitioner filed his Motion for Discovery, ECF No. 53, and his Motion to
Amend, ECF No. 54. The Court will first dispose of Petitioner’s Motion to Vacate and then the
remaining motions.
II. Motion to Vacate
To prevail on a § 2255 motion, a petitioner must prove by a preponderance of the
evidence that “[his] 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 . . . .”
28 U.S.C. § 2255 (2012); Miller v. United States, 261 F.2d 546, 547
(4th Cir. 1958). A claim which does not challenge the constitutionality of a sentence or the
court’s jurisdiction is cognizable in a § 2255 motion only if the alleged violation constitutes a
“miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Collateral attack
is not a substitute for direct appeal, therefore the failure to raise certain issues on direct appeal
may render them procedurally defaulted on habeas review.
United States v. Frady,
456 U.S. 152, 165 (1982). If the § 2255 motion, along with the files and records of the case,
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“conclusively show that [the petitioner] is entitled to no relief,” a hearing on the motion is
unnecessary and the claims raised in the motion may be dismissed summarily. 28 U.S.C. § 2255;
Miller, 261 F.2d at 547.
Pro se petitions are liberally construed.
Erickson v. Pardus,
551 U.S. 89, 94 (2007) (per curiam).
In his Motion to Vacate, Petitioner focuses his challenge on the ACCA sentence
enhancement. Petitioner argues that his prior armed robbery conviction no longer constitutes a
qualifying violent felony after United States v. Johnson, 135 S. Ct. 2551 (2015), and Welch v.
United States, 136 S. Ct. 1257 (2016). ECF No. 50 at 4. Accordingly, Petitioner asks the Court
to resentence him without the ACCA enhancement. Id.
Notwithstanding Petitioner’s argument, the Court need not weigh in on the question of
whether Petitioner’s prior conviction for armed robbery constitutes a qualifying ACCA predicate
after Johnson because, as the Government points out in its Response, see ECF No. 51 at 3,
Petitioner also had three qualifying prior drug offenses that are sufficient to uphold the ACCA
enhancement.
Pursuant to 18 U.S.C. § 924(e)(1), an armed career criminal is a person convicted under
18 U.S.C. § 922(g) “and has three previous convictions . . . for a violent felony or a serious drug
offense, or both . . . .” The definition of a qualifying “serious drug offense” includes “an offense
under State law, involving manufacturing, distributing, or possessing with intent to manufacture
or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act
(21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed
by law.” § 924(e)(2)(A)(ii).
In determining whether a prior state conviction for a drug offense meets the above
statutory definition, “[t]he controlling inquiry . . . is not what sentence [the defendant] actually
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received for the individual [offense][, but] [i]nstead . . . the maximum penalty that [the
defendant] faced given his particular offense and his particular criminal history.” United States
v. Newbold, 791 F.3d 455, 462 (4th Cir. 2015). In a case where there are no aggravating factors,
the Court considers “the presumptive term to be the maximum applicable punishment.” Id. This
is true even where “the defendant actually received a sentence below the presumptive term,
either due to the existence of mitigating factors, or pursuant to a statutorily binding plea
agreement.” Id. at 462–63 (internal citations omitted).
All three of Petitioner’s prior drug convictions constitute predicate offenses as can be
determined through public records at the time of his convictions. According to Petitioner’s PSR,
Petitioner’s three qualifying convictions were (1) a 1991 Maryland conviction for possession
with intent to distribute cocaine (Case No. CT911763A), (2) a 1992 federal conviction for
unlawful possession with intent to distribute five grams or more of cocaine base (Case No. CR92-0059-01), and (3) a 2000 District of Columbia conviction for possession with intent to
distribute heroin (Case No. 2000FEL7631). PSR ¶¶ 24, 33, 36, 41.
Maryland possession with intent to distribute cocaine conviction. Under Maryland
Annotated Code, Criminal Law § 5-602(2),1 it is unlawful to “possess a controlled dangerous
substance in sufficient quantity reasonably to indicate under all circumstances an intent to
distribute or dispense a controlled dangerous substance.”
Sections 5-403(b)(3)(iv)2 and
5-101(s)(1)(ii)3 together provide that cocaine is a narcotic, Schedule II controlled dangerous
substance. Section 5-608(a)4 states that “a person who violates a provision of §§ 5-602 through
5-606 of this subtitle with respect to a Schedule I or Schedule II narcotic drug is guilty of a
1
Formerly Art. 27, § 286(a)(1), but derived without substantive change as is relevant here.
Formerly Art. 27, § 279(b), but derived without substantive change as is relevant here.
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Formerly Art. 27, §§ 286B(a)(1), 287B(a), but derived without substance change as is relevant here.
4
Formerly Art. 27, § 286(b)(1), but derived without substantive change as is relevant here.
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felony and on conviction is subject to imprisonment not exceeding 20 years or a fine not
exceeding $15,000 or both.” Although it appears that Petitioner received a suspended sentence
of only eight years imprisonment, the presumptive term and thus the maximum term of
imprisonment to which he was subject for his conviction was 20 years. Accordingly, his
Maryland conviction is a qualifying ACCA predicate offense. See Newbold, 791 F.3d at 462;
United States v. Washington, 629 F.3d 403, 413–14 (4th Cir. 2011) (finding defendant’s
conviction under Art. 27, § 286 of Maryland Code a qualifying ACCA predicate).
Federal possession with intent to distribute cocaine base conviction. Under 21 U.S.C.
§ 841(a)(1), it is unlawful “to manufacture, distribute or dispense, or possess with intent to
manufacture, distribute, or dispense a controlled substance.” Under § 841(b)(1)(B) at the time of
Petitioner’s sentencing in 1992, a person in violation of § 841(a)(1) involving five or more grams
of cocaine base “shall be sentenced to a term of imprisonment which may not be less than
5 years,” but a defendant who committed the offense after a prior conviction “for an offense
punishable under . . . [the] law of a State . . . relating to narcotic drugs, marijuana, or depressant
or stimulant substances, ha[s] become final,” the mandatory minimum sentence is enhanced to
10 years. Because Petitioner had a prior state conviction for an offense relating to narcotic
drugs, the prescribed maximum sentence for his federal conviction was at least ten years, and
thus the conviction is a qualifying ACCA predicate. See Newbold, 791 F.3d at 462.
District of Columbia possession with intent to distribute heroin conviction. Under the
District of Columbia Annotated Code, § 48-904.01(a)(1), it is unlawful for any person to possess
with the intent to distribute a controlled substance. Section 48-904.01(a)(2)(A) provides that any
person in violation of said section with respect to a “controlled substance classified in Schedule I
or II that is a narcotic or abusive drug shall be imprisoned for not more than 30 years . . . .”
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Heroin is a Schedule I narcotic.
§§ 48-901.02(15), -902.04(2)(k). Because the prescribed
maximum penalty for Petitioner’s District of Columbia conviction is 30 years, his conviction is a
qualifying ACCA predicate. See Newbold, 791 F.3d at 462.
Based on the foregoing, Petitioner’s enhancement under the ACCA was valid, and
therefore there is no need to disturb the Court’s judgment, regardless of whether Petitioner’s
armed robbery conviction constitutes a violent felony under the ACCA.
The Court will
accordingly deny Petitioner’s Motion to Vacate.
III. Motion for Discovery and Motion to Amend
Motion for Discovery. In Petitioner’s Rule 6 Motion for Discovery, Petitioner asks the
Court that certain documents necessary for him to fully litigate his Motion to Vacate be made
available to him. ECF No. 53. These documents include (1) the plea and sentencing transcripts
relating to his armed robbery conviction, (2) the plea and sentencing transcripts, charging
documents, and plea agreement relating to his 1991 Maryland conviction, (3) the plea and
sentencing transcripts, charging documents, and police reports relating to his 2000 District of
Columbia conviction, and (4) the plea and sentencing transcripts, police reports, and charging
papers relating to his 1992 federal conviction.
ECF No. 53-1.
Because the Court’s
determination of whether a prior conviction constitutes an ACCA predicate offense hinges on the
particular offense and the defendant’s criminal history at the time of the offense only, see
Newbold, 791 F.3d at 462, transcripts of Petitioner’s plea and sentencing hearings and any plea
agreements are irrelevant to the inquiry. Additionally, the crimes for which Petitioner was
convicted are accessible from public records, so there is no need for the charging documents and
police reports. The requested discovery will therefore not change the Court’s analysis, so the
Court will deny Petitioner’s Motion for Discovery as unsupported by good cause.
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Motion to Amend. In his Motion to Amend, Petitioner expounds on his argument that his
prior armed robbery conviction no longer constitutes a crime of violence and asserts an argument
that his Maryland drug conviction does not constitute a serious drug offense. Both proposed
amendments, however, would be futile and will therefore be denied.
Federal Rule of Civil Procedure 15 governs requests to amend a § 2255 motion. See
United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000). Under Rule 15(a), a party may
amend a pleading to which a responsive pleading is required “21 days after service of a
responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever
is earlier.” Fed. R. Civ. P. 15(a)(1). Otherwise, a party may amend only with the opposing
party’s consent or the court’s leave. Fed. R. Civ. P. 15(a)(2). A court “should freely give leave
[to amend] when justice so requires.” Id. “In fact, such leave ‘should be denied only when the
amendment would be prejudicial to the opposing party, there has been bad faith on the part of the
moving party, or the amendment would be futile.’” Forman v. Davis, 371 U.S. 178, 182 (1962).
In this instance, Petitioner’s proposed amendment regarding his armed robbery would be
futile because, as concluded above, his three prior drug convictions are sufficient to uphold the
ACCA sentencing enhancement. Petitioner’s proposed amendment regarding his Maryland drug
conviction would also be futile because, as laid out above, the inquiry to determine whether a
drug offense constitutes an ACCA predicate is focused on the maximum penalty Petitioner faced
based on the conduct of his offense and criminal history at the time, regardless of whether he was
sentenced below the prescribed statutory maximum due to mitigating sentencing factors or a plea
agreement. Newbold, 791 F.3d at 462–63. His assertions and citations do nothing to alter the
Court’s analysis of the qualifying nature of the offense.
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IV. Certificate of Appealability
Petitioner may not appeal this Court’s denial of relief under § 2255 unless it issues a
certificate of appealability. United States v. Hardy, 227 F. App’x 272, 273 (4th Cir. 2007). A
certificate of appealability will not issue unless Petitioner has made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Hardy, 227 F. App’x at 273. “A
prisoner satisfies this standard by demonstrating that reasonable jurists would find that any
assessment of the constitutional claims by the district court is debatable or wrong and that any
dispositive procedural ruling by the district court is likewise debatable.” United States v. Riley,
322 F. App’x 296, 297 (4th Cir. 2009). The Court has assessed Petitioner’s Motion to Vacate and
Motion to Amend and finds that no reasonable jurist could find merit in any of the asserted
claims. Accordingly, no certificate of appealability shall issue.
V. Conclusion
Based on the foregoing, the Court finds that Petitioner’s Motion to Vacate and Motion to
Amend, along with the files and records of the case, “conclusively show that [he] is entitled to no
relief,” and, as such, will deny both motions. See 28 U.S.C. § 2255; Miller, 261 F.2d at 547.
Additionally, the Court will deny Petitioner’s Motion for Discovery. A separate order will
follow.
DATE: August 13, 2018
/s/
ROGER W. TITUS
UNITED STATES DISTRICT JUDGE
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