Reed v. United States of America

Filing 11

MEMORANDUM AND ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255); The Petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2255 (Docket Entry 1) is DENIED. As a result, Petitioner's motion to appoint counsel (Docket Entry 10) is DENIED as MOOT. Because there can be no debate among reasonable jurists that Petitioner was not entitled to habeas relief, the Court does not issue a Certificate of Appealability. Certificate of Appealability Denied re 1 Motion to V acate/Set Aside/Correct Sentence (2255). The Clerk of the Court is directed to mail a copy of this Memorandum and Order to the pro se Petitioner and to mark this matter CLOSED. So Ordered by Judge Joanna Seybert on 10/25/2017. C/M; C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------X
CHARLES REED,
Petitioner,
MEMORANDUM AND ORDER
15-CV-3607(JS)

-againstUNITED STATES OF AMERICA,

Respondent.
-------------------------------------X
APPEARANCES
For Petitioner:
Charles Reed, pro se
#78901-053
United States Penitentiary, Allenwood
P.O. Box 1000
White Deer, PA 17887
For Respondent:

Charles N. Rose, Esq.
Nicole Boeckmann, Esq.
United States Attorney’s Office
Eastern District of New York
610 Federal Plaza
Central Islip, NY 11722

SEYBERT, District Judge:
Charles Reed (“Petitioner”) petitions the Court pro se
for a writ of habeas corpus pursuant to 28 U.S.C. § 2255.

For the

following reasons, the Petition is DENIED.
BACKGROUND
On March 22, 2012, at the conclusion of a jury trial,
(see, Minute Entry, Docket Entry 70), Petitioner was convicted of
Conspiracy to Distribute at Least 280 Grams of Cocaine Base and
500 Grams of Cocaine, a Class “A” Felony, in violation of 21 U.S.C.

§§ 846, 841(a)(1), 851(a), 841(b)(1)(A)(iii), 841(b)(1)(B)(ii)
(II), and other related crimes.
Docket Entry 119.)
Felony

Information

(See, Docket No. 10-CR-0826, J.,

Before trial, the Government filed a Prior
(“PFI”)

listing

one

of

Petitioner’s

prior

convictions. (See Docket No. 10-CR-0826, PFI, Docket Entry 61.)
Specifically, the PFI referred to Petitioner’s 1993 conviction in
Middlesex County, New Jersey, for Possession of a Controlled
Substance with Intent to distribute in violation of New Jersey
Code of Criminal Justice Section 2C:35-5.
Prior

to

Petitioner’s

(PFI ¶ 1.)

sentencing,

the

Probation

Department submitted a Presentence Investigation Report (“PSR”)
that

assigned

Petitioner

a

Category

VI

Criminal

History

Designation and deemed him a Career Offender due to his prior
convictions for controlled substance offenses.
93.)

(See PSR ¶¶ 36,

The PSR identified a total of four prior drug related

convictions, including Petitioner’s 1993 New Jersey conviction
(PSR ¶¶ 41, 44, 46, 47.)

The PSR indicated that Petitioner was

facing a sentence between 360 months to life imprisonment and a
mandatory minimum sentence of 240 months’ imprisonment.

(PSR ¶¶

92-93.)
On April 19, 2013, the Court sentenced Petitioner to the
mandatory minimum sentence of 20 years’ imprisonment.

(See, J.)

At the sentencing hearing, counsel for Petitioner requested that
the mandatory minimum sentence be imposed, stating “I would just
2

basically go along with the recommendation by probation to [the]
mandatory minimum of 20 years” (Sentencing Tr. 24:15-17.)

The

Court discussed the given sentence, stating “I have reviewed the
probation report.
factors,

and

I was at the trial.

while

some

courts

further, I decline to do so.”

I have considered all the

might

penalize

the

defendant

(Sentencing Tr. 26:10-14.)

Petitioner appealed the conviction and sentence to the
Second Circuit Court of Appeals.

On August 25, 2014, the Second

Circuit held that Petitioner’s claims regarding his sentence were
meritless and affirmed the conviction and sentence.

United States

v. Reed, 576 F. App’x 60, 62 (2d Cir. 2014.)
On June 15, 2015, Petitioner filed his Petition to vacate
his sentence pursuant to 28 U.S.C. § 2255. (Petition, Docket Entry
1.)

Attached to his Petition is a May 2015 Order vacating his New

Jersey felony conviction contained in the aforementioned PFI.
(See, Pet. at 6; PFI ¶ 1.)

Because his prior New Jersey conviction

was vacated, Petitioner argues that the Court’s sentence was
improperly

enhanced,

and

requests

that

the

Court

vacate

his

sentence and resentence him.
DISCUSSION
The

Court

will

first

address

the

applicable

standard before turning to the merits of the Petition.

3

legal

I. Legal Standard
“The writ of habeas corpus stands as a safeguard against
imprisonment of those held in violation of the law.”

Harrington

v. Richter, 562 U.S. 86, 91, 131 S. Ct. 770, 780, 178 L. Ed. 2d
624 (2011).

When considering petitions for habeas relief, the

Supreme Court has held that “to obtain collateral relief a prisoner
must clear a significantly higher hurdle than would exist on direct
appeal.”

United States v. Frady, 456 U.S. 152, 166, 102 S.Ct.

1584, 1593, 71 L. Ed. 2d 816 (1982).

In petitions for habeas

relief, the petitioner has the burden of proving his claims by a
preponderance of the evidence.

Skaftouros v. United States, 667

F.3d 144, 158 (2d Cir. 2011).

The authority to grant a habeas

petition “is to be exercised sparingly, for such applications ‘are
in tension with society’s strong interest in the finality of
criminal convictions.’”

Castro v. United States 993 F. Supp. 2d

332, 340 (E.D.N.Y. Jan. 29, 2014) (quoting Elize v. United States,
No. 02-CV-1350, 2008 WL 4425286, at *5 (E.D.N.Y. Sept. 30, 2008).
To warrant habeas relief under Section 2255 a petitioner
must show “that the 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”.
attack

is

available

“for

a

28 U.S.C. § 2255(a).
constitutional
4

error,

A collateral
a

lack

of

jurisdiction in the sentencing court, or an error of law or fact
that constitutes a ‘fundamental defect which inherently results in
a complete miscarriage of justice.’”

United States v. Bokun, 73

F.3d 8, 12 (2d Cir. 1995) (quoting Hill v. United States, 368 U.S.
424, 428, 82 S. Ct. 468, 471, 7 L. Ed. 2d 417 (1962)).

When

determining whether to grant habeas relief, “the scope of review
on a § 2255 motion should be ‘narrowly limited’ in order to
preserve the finality of criminal sentences and to effect the
efficient allocation of judicial resources.”

Graziano v. United

States, 83 F.3d 587, 590 (2d Cir. 1996) (citation omitted).
The

Supreme

Court

has

held

that

“a

defendant

who

successfully attacked his state conviction in state court or on
federal habeas review could then ‘apply for reopening of any
federal sentence enhanced by the state sentences.’”

Johnson v.

United States, 544 U.S. 295, 303, 125 S. Ct. 1571, 1578, 161 L.
Ed. 2d 542 (2005) (quoting Custis v. United States, 511 U.S. 485,
497, 114 S. Ct. 1732, 1739, 128 L. Ed. 2d 517 (1994)).

However,

“vacatur alone does not entitle a petitioner to habeas relief,”
but simply permits a petitioner to seek review.

United States v.

Pettiford, 612 F.3d 270, 278 (4th Cir. 2010).
II. Analysis
Petitioner contends that because his 1993 New Jersey
conviction was vacated, he is now entitled to habeas relief and
resentencing by the Court.
5

At the time of sentence, Petitioner was deemed a Career
Offender, under a Criminal History Category VI, with a Sentencing
Guidelines Range of 360 months to life imprisonment.
93; see also U.S.S.G. 4B1.1(a).)
he

was

convicted

imprisonment.

carried

(PSR ¶ 92.)

a

(PSR ¶¶ 36,

Further, the top charge of which
sentence

of

20

years

to

life

It is undisputed that at the time of

sentencing Petitioner had four prior felony controlled substance
convictions. (PSR ¶¶ 41, 44, 46, 47.) Petitioner has successfully
attacked his 1993 New Jersey conviction, (PSR ¶ 46) but three
additional felony controlled substance convictions remain in his
Criminal History.
The

(PSR ¶¶ 41, 44, 47.)

Second

Circuit

has

held

that

“defendants

who

successfully attack state convictions may seek review of federal
sentences that were enhanced on account of such state convictions.”
United States v. Doe, 239 F.3d 473, 475 (2d Cir. 2001).

In Doe,

the Court was faced with an appellant who pled guilty to a federal
offense and was seeking vacatur of the underlying conviction that
exposed him to a higher Criminal History level and an increased
jail sentence.

Id.

It is significant in Doe that the appellant’s

sentencing enhancement was based on the single prior conviction he
was seeking to vacate.
multiple

underlying

Id.

In contrast to Doe, Petitioner has

convictions

on

his

criminal

record

that

trigger sentencing enhancement, regardless of the vacatur of his
1993 New Jersey conviction.

(PSR ¶¶ 41, 44, 47.)
6

The Court finds

additional guidance from the Fourth Circuit’s analysis in United
States v. Pettiford, 12 F.3d, 270, 278 (4th Cir. 2010).

In

Pettiford, the Fourth Circuit was faced with an individual seeking
habeas relief, arguing that he should be permitted to collaterally
attack his federal sentence that was enhanced based on his Armed
Career Criminal designation.

Id. at 275.

There, Pettiford argued

that as he successfully vacated two of his predicate convictions
he was entitled to review of his federal sentence.

Id. at 276.

In response the government argued that “Pettiford’s record retains
three convictions that support enhancing his sentence.”
276-77.

Id. at

The Fourth Circuit ultimately held that the vacatur of an

underlying conviction does not lead to automatic relief, rather
“the petitioner must still meet his burden of showing that his
sentence is unlawful on one of the specified grounds, because only
after determining that a sentence is unlawful can the district
court vacate and set aside the sentence.”
Finding

guidance

from

these

Id. at 278.
cases,

the

Court

has

reviewed Petitioner’s request for habeas relief, but finds that
Petitioner is not entitled to relief for several reasons.

As a

starting point, Petitioner fails to raise any arguments that his
sentence violates the Constitution or that the Court was without
jurisdiction to sentence him.

As such, the Court turns to whether

Petitioner’s sentence has resulted in “an error of law or fact
that constitutes a ‘fundamental defect which inherently results in
7

a

complete

miscarriage

of

justice.’”

Bokun,

73

F.3d

1993

New

at

12

(collecting cases).
First,

the

vacatur

of

Petitioner’s

Jersey

conviction does not alter his Career Offender and Criminal History
VI designation.

The Sentencing Guidelines indicate, in pertinent

part, that an individual will be deemed a Career Offender, facing
enhanced sentencing, when “(1) the defendant was at least eighteen
years old at the time the defendant committed the instant offense
of conviction; (2) the instant offense of conviction is a felony
that is either a crime of violence or a controlled substance
offense; and (3) the defendant has at least two prior felony
convictions of either a crime of violence or a controlled substance
offense.”
the

PFI

See U.S.S.G 4B1.1(a).
has

been

vacated,

While the conviction named in

Petitioner

still

has

controlled substance related felony convictions.
47.)

three

prior

(PSR ¶¶ 41, 44,

Irrespective of the vacated conviction, Petitioner meets the

statutory requirements for the Career Offender designation and is
still subject to the corresponding enhancements.

(PSR ¶¶ 41, 44,

47; see U.S.S.G. 4B1.1(a).)
Second, the 20-year sentence does not exceed what is
permissible by law.

The maximum sentence Petitioner faced was

life imprisonment, regardless of whether the minimum sentence is
10 years, as Petitioner argues, or 20 years.
§ 841(b)(1)(A)(iii).

Further,
8

the

Court’s

See, 21 U.S.C.
sentence

is

considerably lower than the guidelines range of 360 months to life
imprisonment. (PSR ¶ 93.) During Petitioner’s sentencing the Court
stated: “I have reviewed the probation report. I was at the trial.
I have considered all the factors, and while some courts might
penalize the defendant further, I decline to do so.”

(Sentencing

Tr. 26:10-14.)
Even

assuming,

arguendo,

that

the

vacatur

of

the

underlying conviction named in the PFI lowered the mandatory
minimum

sentence

imprisonment,

from

Petitioner

20

years’

has

failed

sentence is fundamentally flawed.
S. Ct. at 471.
that

even

imprisonment
to

show

to

how

10
the

years’
current

See Hill, 368 U.S. at 428, 82

During sentencing the Court informed Petitioner

without

the

PFI,

the

Court

would

impose

the

same

sentence:
Ms. Boeckman: And, to be clear, obviously the
court considered all the factors of 3553(a),
even absent the prior felony information would
deem a 20-year sentence based on the
guidelines to be reasonable
The Court: Absolutely, and according to all
the findings . . . and facts indicated in the
findings of the guideline offense level.
(Sentencing Tr. 29:4-10.)
his

sentence

information.”

was

The Court made clear to Petitioner that

appropriate

“even

absent

(See Sentencing Tr. 29:4-10.)

the

prior

felony

Therefore, the Court

relied on all the factors in 18 U.S.C. § 3553(a) and provided a

9

sentence “sufficient, but not greater than necessary, to comply
with the purposes” of sentencing.

18 U.S.C. § 3553(a).

For the reasons stated above, Petitioner has failed to
establish that his sentence resulted in an error of law or fact or
was fundamentally flawed.

Accordingly, the Petition is DENIED.
CONCLUSION

The Petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2255

(Docket

Entry

1)

is

DENIED.

As

a

result,

Petitioner’s motion to appoint counsel (Docket Entry 10) is DENIED
as MOOT.

Because there can be no debate among reasonable jurists

that Petitioner was not entitled to habeas relief, the Court does
not issue a Certificate of Appealability.

28 U.S.C. § 2253(c);

see also Middleton v. Att’ys Gen., 396 F.3d 207, 209 (2d Cir.
2005).
The Clerk of the Court is directed to mail a copy of
this Memorandum and Order to the pro se Petitioner and to mark
this matter CLOSED.

SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated:

October
25 , 2017
Central Islip, New York

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