Cornette v. USA
Filing
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MEMORANDUM OF DECISION AND ORDER granting 7 Government's Motion to Dismiss. The Petitioner's Motion to Vacate [Doc. 1] is DENIED; and this case is DISMISSED WITH PREJUDICE. Court declines to issue a Certificate of Appealability. Signed by District Judge Martin Reidinger on 11/17/17. (emw) (Main Document 9 replaced on 11/20/2017)NEF regenerated. (emw) (Main Document 9 replaced on 11/20/2017) NEF regenerated. (emw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:16-cv-00153-MR
(CRIMINAL CASE NO. 1:08-cr-00056-MR-1)
RANDALL CORNETTE,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA, )
)
Respondent.
)
___________________________ )
MEMORANDUM OF
DECISION AND ORDER
THIS MATTER is before the Court on the Petitioner’s Motion to Vacate,
pursuant to 28 U.S.C. § 2255 [Doc. 1] and the Government’s Motion to
Dismiss and Response to Petitioner’s Motion to Vacate [Doc. 7].
The
Petitioner is represented by Joshua Carpenter of the Federal Defenders of
Western North Carolina.
The Petitioner challenges his sentence under 28 U.S.C. § 2255,
arguing that he was improperly sentenced as an armed career criminal
because he does not have three prior convictions for violent felonies or
serious drug offenses within the meaning of the Armed Career Criminal Act
(“ACCA”), see 18 U.S.C. § 924(e). For the reasons that follow, the motion
to vacate is denied.
I.
BACKGROUND
On June 3, 2008, the Petitioner was charged in a Bill of Indictment with
one count of possession of a firearm by a convicted felon, in violation of 18
U.S.C. § 922(g)(1).
Indictment].
[Crim. Case No. 1:08-cr-00056 (“CR”), Doc. 1:
The Petitioner subsequently pleaded guilty to this charge
pursuant to a written plea agreement with the Government. [CR Doc. 12:
Plea Agreement].
In the Petitioner’s presentence report (“PSR”), the probation officer
identified the following predicate convictions under the ACCA: (1) three 1976
convictions in Georgia for burglary, which were consolidated for sentencing;
(2) a 1979 conviction in North Carolina for breaking or entering; (3) two 1986
convictions in North Carolina for felony possession with intent to
manufacture, sell, or deliver cocaine, and felony sell or deliver cocaine, which
were consolidated for sentencing; and (4) a 1989 conviction in North Carolina
for breaking or entering. [CR Doc. 16 at ¶¶ 25, 36, 37, 41, 42]. In part based
on a cross-reference to the attempted-murder guideline, U.S.S.G. § 2A2.1,
the probation officer calculated a total offense level of 32 and a criminal
history category of VI, yielding an applicable Sentencing Guidelines range of
between 210 and 262 months’ imprisonment. [Id. at ¶¶ 19, 27, 53, 91]. The
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presiding judge, the Honorable Lacy H. Thornburg, adopted the PSR and
sentenced Petitioner to 220 months’ imprisonment. [CR Doc. 18: Judgment].
The Petitioner appealed to the Fourth Circuit Court of Appeals. While
this matter was on appeal, Judge Thornburg retired and this matter was
reassigned to the undersigned.
In September 2010, the Fourth Circuit
vacated the judgment and remanded for resentencing on the grounds that
Judge Thornburg had failed to provide adequate reasons for the chosen
sentence. United States v. Cornette, 396 F. App’x 8, 9 (4th Cir. 2010).
On
remand, this Court imposed the same 220-month term of imprisonment. [CR
Doc. 42: Amended Judgment].
The Petitioner did not appeal the amended judgment, but on April 18,
2011, he filed a motion to vacate under 28 U.S.C. § 2255, raising a number
of ineffective assistance of counsel claims. [Civil Case No. 1:11-cv-00092,
Doc. 1]. This Court denied and dismissed the Petitioner’s motion to vacate
on August 20, 2014. [Id., Doc. 9].
On June 6, 2016, the Fourth Circuit granted authority for the Petitioner
to file a successive motion to vacate to raise a claim under Johnson v. United
States, 135 S. Ct. 2551 (2015). [CR Doc. 52-2]. That same day, the
Petitioner filed the present motion to vacate, arguing that he was improperly
sentenced as an armed career criminal. Specifically, the Petitioner contends
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that his prior 1976 conviction for burglary in Georgia no longer qualifies as a
“crime of violence” in light of Johnson. He further contends that his 1986
convictions in North Carolina for possession with intent to manufacture, sell,
or deliver cocaine and felony sell or deliver cocaine are not “serious drug
offenses” because they are no longer considered felonies under United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc).
The Government filed a motion to dismiss on September 16, 2016.
[Doc. 7]. In its motion, the Government contends that Petitioner waived in
his plea agreement the right to bring his Johnson claim and that his claim
fails on the merits because he still has three or more qualifying predicate
convictions under the ACCA, even after Johnson.
II.
STANDARD OF REVIEW
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 argument presented by 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 (4th Cir. 1970).
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III.
DISCUSSION
The ACCA provides for a mandatory minimum term of fifteen years’
imprisonment for any defendant convicted of 18 U.S.C. § 922(g) and who
has three prior convictions for either a “violent felony” or a “serious drug
offense.” 18 U.S.C. § 924(e)(1).
As noted above, the Petitioner had five prior convictions that were
found to qualify as predicate offenses, including a 1976 conviction for
burglary in Georgia (three counts, all on the same occasion); two convictions
in North Carolina for breaking or entering (1979 and 1989), and two 1986
convictions in North Carolina for felony possession with intent to
manufacture, sell, or deliver cocaine, and felony sell or deliver cocaine. The
Petitioner does not contest the characterization of two of these predicate
offenses, namely, his two North Carolina breaking or entering convictions,
as “crimes of violence” under the ACCA. Indeed, the Fourth Circuit Court of
Appeals has held that North Carolina breaking or entering falls within the
definition of “generic burglary” and thus constitutes a “crime of violence”
under the ACCA. United States v. Mungro, 754 F.3d 267, 272 (4th Cir.), cert.
denied, 135 S. Ct. 734 (2014). Thus, the Petitioner requires only one more
valid predicate conviction to qualify as an armed career criminal.
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The Eleventh Circuit Court of Appeals recently has concluded that the
Georgia burglary statute is divisible. See United States v. Gundy, 842 F.3d
1156 (11th Cir. 2016), cert. denied, 2017 WL 1301351 (Oct. 2, 2017). At
least two of the Petitioner’s Georgia convictions were for burglary of a
“dwelling house.” [See Doc. 7-1 at 1, 5]. In Gundy, the Eleventh Circuit
concluded that the elements of burglary of a dwelling house under Georgia
law has elements that “substantially conform to the generic definition of
burglary.”
Id. at 1169.
Accordingly, the Petitioner’s Georgia burglary
convictions also constitute violent felonies under the ACCA’s enumerated
crimes clause.1
In light of the above, the Petitioner has at least four valid predicate
convictions under the ACCA. Accordingly, the Petitioner’s motion to vacate
is denied.2
1
The Petitioner points out in his petition that the Georgia burglary statute was amended
in 2012. Gundy, however, decided this issue with regard to the statute that was in effect
from 1980 to 2012, Gundy, 842 F.3d at 1164 n.3, the same one that supported the
Petitioner’s conviction.
In addition, even if the Petitioner’s Georgia convictions were infirm ACCA predicates,
the Petitioner’s North Carolina convictions for felony possession with intent to
manufacture, sell, or deliver cocaine, and felony sell or deliver cocaine would remain as
“serious drug offenses” under the ACCA. The Petitioner argues that in light of United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), this would no longer be
correct. However, any claim that the Petitioner could have asserted under Simmons is
time-barred. The Petitioner was re-sentenced in March 2011, and he did not file a direct
appeal. He did, however, file a § 2255 petition challenging that judgment, which was
pending when Simmons was decided. But he never asserted a Simmons claim. The
present action was filed more than two years after that earlier § 2255 petition was
2
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IV.
CONCLUSION
For the reasons stated herein, the Court grants the Government’s
motion to dismiss and denies the Petitioner’s motion to vacate.
Pursuant to Rule 11(a) of the Rules Governing Section 2255 Cases,
the Court declines to issue a certificate of appealability as the Petitioner has
not made a substantial showing of a denial of a constitutional right. 28 U.S.C.
§ 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003) (in order to
satisfy § 2253(c), a petitioner must demonstrate that reasonable jurists would
find the district court’s assessment of the constitutional claims debatable or
wrong). In the face of the Eleventh Circuit precedent construing the Georgia
offense in question, together with there being an alternate non-constitutional
basis for upholding the result, the Court finds that reasonable jurists would
not find the point raised by the Petitioner to be debatable.
dismissed. Notably, the Petitioner did not seek authorization to file a second or
successive § 2255 motion to raise this Simmons issue.
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ORDER
IT IS, THEREFORE, ORDERED that the Government’s Motion to
Dismiss [Doc. 7] is GRANTED; the Petitioner’s Motion to Vacate [Doc. 1] is
DENIED; and this case is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that, pursuant to Rule 11(a) of the Rules
Governing Section 2255 Cases, the Court declines to issue a certificate of
appealability.
IT IS SO ORDERED.
Signed: November 20, 2017
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