Shine v. USA
Filing
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ORDER denying and dismissing Motion to Vacate, Set Aside or Correct Sentence (2255). Granting Government's 5 Motion to Dismiss. Court declines to issue a Certificate of Appealability. Signed by District Judge Max O. Cogburn, Jr on 5/8/2017. (Pro se litigant served by US Mail.)(chh)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:17-cv-8-MOC
(3:14-cr-182-MOC-DSC-1)
ANTONIO L. SHINE,
)
)
Petitioner,
)
)
vs.
)
)
UNITED STATES OF AMERICA,
)
)
)
Respondent.
)
____________________________________)
ORDER
THIS MATTER is before the Court on Petitioner’s Motion to Vacate, Set Aside or Correct
Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and on the Government’s Motion to Dismiss,
(Doc. No. 5).
I.
BACKGROUND
Petitioner Antonio Lamont Shine has moved to vacate, correct, or set aside his sentence
pursuant to 28 U.S.C. § 2255, arguing that his sentence should not have been enhanced under the
Sentencing Guidelines for his prior conviction for common law robbery. Petitioner was involved
in distributing drugs in the Beatties Ford Road area of Charlotte, North Carolina. (Crim. Case
No. 3:14-cr-182-MOC-DSC, Doc. No. 48 at ¶ 7: PSR). A confidential informant provided
Petitioner’s information and telephone number to a Charlotte-Mecklenburg police detective.
(Id.). On December 12, 2013, the detective, acting in an undercover capacity, called Petitioner
and arranged to buy heroin. (Id.). Although Petitioner agreed to the transaction and was seen in
the area of Beatties Ford Road where the sale was to take place, he did not go through with the
deal. (Id.). Law enforcement officers executed a search warrant at his residence the next day,
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finding marijuana, heroin, cocaine, scales, a loaded .9mm Glock, and assorted ammunition. (Id.
at ¶¶ 9-10). The firearm was found in a book bag containing marijuana, and it had Petitioner’s
DNA on it. (Id. at ¶ 11).
A grand jury charged Petitioner with possession with intent to distribute heroin, in
violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count One); possession with intent to distribute
marijuana, in violation of 21 U.S.C. § 841(a), (b)(1)(D) (Count Two); possession with intent to
distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count Three); possession of
a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c) (Count
Four); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)
(Count Five). (Id., Doc. No. 1: Indictment). The Government filed a notice pursuant to 21
U.S.C. § 851, indicating its intent to rely on Petitioner’s prior North Carolina felony conviction
for trafficking in cocaine to enhance the penalties under § 841. (Id., Doc. No. 4: § 851 Notice).
Petitioner agreed to plead guilty to Counts One, Two, Three, and Five, in exchange for
the dismissal of Count Four and the § 851 enhancement. (Id., Doc. No. 32 at ¶¶ 1-2: Plea
Agrmt.). The parties agreed that the four-level enhancement in U.S.S.G. § 2K2.1(b)(6)(B), for
possessing or using a firearm during another felony offense, applied and that neither party would
seek a departure or variance from the applicable guidelines range. (Id. at ¶ 7). Petitioner also
agreed to waive the right to contest his conviction or sentence on appeal or in any postconviction proceeding, except as to claims of ineffective assistance of counsel or prosecutorial
misconduct. (Id. at ¶¶ 18-19). After a plea hearing, the magistrate judge accepted Petitioner’s
guilty plea, finding that it was knowingly and voluntarily made. (Id., Doc. No. 34: Acceptance
and Entry of Guilty Plea).
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A probation officer prepared a presentence report (PSR), recommending that, pursuant to
U.S.S.G. § 2K2.1(a)(3), Petitioner be sentenced at a base offense level of 22, based on his
possession of a firearm that was a semiautomatic weapon capable of accepting a large capacity
magazine, as well as his offense occurring subsequent to his having a felony conviction of either
a crime of violence or a controlled substance offense, citing his prior North Carolina conviction
for common law robbery. (Id., Doc. No. 48 at ¶ 27). The probation officer applied the four-level
upward adjustment under § 2K2.1(b)(6)(B) and a three-level downward adjustment for
acceptance of responsibility, for a total offense level of 23. (Id. at ¶¶ 28, 35-37) (because the
total offense level for the drug offenses was lower, the higher offense level for Count Five was
used). The probation officer determined that Petitioner had a criminal history score of nine and a
criminal history category of IV, based on prior convictions that included North Carolina
convictions for felony possession of cocaine; common law robbery; and trafficking in cocaine by
possession, possession with intent to sell and distribute cocaine, possession with intent to sell and
distribute MDA/MDMA, possession of drug paraphernalia, and resisting a public officer. (Id. at
¶¶ 41, 45, 47-49). This placed Petitioner’s advisory guidelines range at 70 to 87 months of
imprisonment. (Id. at ¶ 93).
Petitioner objected to the PSR. (Id. at pp. 22-24). Although Petitioner successfully
challenged the original PSR’s recommendation that he be sentenced as a career offender, this
Court overruled his contention that his common law robbery conviction was not a crime of
violence under § 2K2.1, as well as his argument that this conviction was almost outside the
fifteen-year time frame for consideration in his criminal history. (Id., Doc. No. 56: Statement of
Reasons). This Court specifically found at sentencing that, even if the common law robbery
conviction was not used to enhance Petitioner’s offense level, the Court would have imposed an
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identical sentence. (Id. at 4). This Court sentenced Petitioner to 70 months of imprisonment,
entering the judgment on December 14, 2015. (Id., Doc. No. 55: Judgment).
Petitioner did not appeal. He filed the pending, timely motion to vacate on December 22,
2016. (Civ. Doc. No. 1 at 1-2). In response to this Court’s order, Petitioner filed an amended
motion to vacate on January 29, 2017. (Civ. Doc. No. 3). Petitioner argues that his prior North
Carolina conviction for common law robbery should not have been used to enhance his sentence
under U.S.S.G. § 2K2.1, citing United States v. Gardner, 823 F.3d 793 (4th Cir. 2016). (Id. at 36). The Government filed its response and motion to dismiss on April 11, 2017. (Doc. No. 5).
On April 20, 2017, this Court issued an order giving Petitioner notice of his right to respond to
the Government’s motion to dismiss. (Doc. No. 6). Petitioner filed a response on May 2, 2017.
(Doc. No. 7). Therefore, this matter is ripe for disposition.
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
arguments 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).
III.
DISCUSSION
For the following reasons, the Court dismisses and denies Petitioner’s motion to vacate.
The Court first finds that Petitioner waived, as part of his plea agreement, the right to seek postconviction relief, including relief under § 2255, except for claims of ineffective assistance of
counsel or prosecutorial misconduct. (Crim. Case No. 3:14-cr-182-MOC-DSC, Doc. No. 32 at
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¶¶ 18-19). Petitioner does not specifically allege that he is bringing either of these two claims
here.1 A knowing and voluntary waiver of the right to pursue post-conviction relief is
enforceable. See United States v. Lemaster, 403 F.3d 216, 220 (4th Cir. 2005). Here, there is no
allegation of involuntariness, and any such allegation would be frivolous because it would
contradict Petitioner’s testimony at the plea hearing. Furthermore, a waiver in a plea agreement
is enforceable even if there is an intervening change in the law. See United States v. Copeland,
707 F.3d 522, 529 (4th Cir. 2013). Thus, Petitioner’s reliance on Gardner does not affect the
validity of his waiver of the right to pursue post-conviction relief. Accordingly, Petitioner’s
claim is barred by his plea agreement waiver. See (Id., Doc. No. 32 at ¶¶ 18-19).
The Court further finds that Petitioner’s challenge to his guidelines range is procedurally
barred due to his failure to raise this issue on direct appeal. A § 2255 motion is not a substitute
for a direct appeal. Claims of error that could have been raised on direct appeal, but were not,
are procedurally barred unless the petitioner shows both cause for the default and actual
prejudice, or demonstrates that he is actually innocent of the offense. See Bousley v. United
States, 523 U.S. 614, 621-22 (1998); United States v. Bowman, 267 F. App’x 296, 299 (4th Cir.
2008). “[C]ause for a procedural default must turn on something external to the defense, such as
the novelty of the claim or a denial of effective assistance of counsel.” United States v.
Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999). A subsequent change in the law justifies the
failure to raise an issue only where the state of the law was such that “the legal basis for the
Although Petitioner mentions ineffective assistance of counsel, he does not argue that counsel’s
performance was deficient, nor could he, given that counsel argued at sentencing that Petitioner’s
prior conviction for common law robbery was not a crime of violence. Nor does Petitioner
allege that the waiver of his right to pursue post-conviction relief was involuntary. Accordingly,
any claim of ineffective assistance of counsel that he may be attempting to raise is conclusory
and without merit. See Strickland v. Washington, 466 U.S. 668, 687-88, 691 (1984); United
States v. Dyess, 730 F.3d 354, 359-60 (4th Cir. 2013).
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claim was not reasonably available when the matter should have been raised.” Id. The futility of
raising an issue does not establish cause. United States v. Pettiford, 612 F.3d 270, 281 (4th Cir.
2010).
To show actual prejudice, a petitioner must demonstrate that errors in the proceedings
“worked to his actual and substantial disadvantage” and were of constitutional dimension. See
United States v. Frady, 456 U.S. 152, 170 (1982). To show actual innocence, a petitioner must
demonstrate that he “has been incarcerated for a crime he did not commit.” United States v.
Jones, 758 F.3d 579, 584 (4th Cir. 2014), cert. denied, 135 U.S. 1467 (2015). Actual innocence
is based on factual innocence and “is not satisfied by a showing that a petitioner is legally, but
not factually, innocent.” See Mikalajunas, 186 F.3d at 494.
Petitioner procedurally defaulted the argument that his guidelines range was improperly
calculated because he did not have a prior conviction for a crime of violence by failing to raise
this issue on direct appeal. He does not allege cause and prejudice to overcome this procedural
default, nor could he show cause and prejudice. Petitioner argued at sentencing that his prior
conviction for common law robbery was not a crime of violence, but he did not pursue this issue
on appeal. See Pettiford, 612 F.3d at 280-84 (requiring a petitioner to raise an issue even if it is
unlikely to succeed). Additionally, he cannot show prejudice where this Court stated at
sentencing that it would impose the same sentence even if Petitioner’s common law robbery
conviction was not used to enhance his sentence. (Crim. Case No. 3:14-cr-182-MOC-DSC, Doc.
No. 56 at 4: Statement of Reasons). Petitioner also does not allege that he is actually innocent of
the underlying offenses. Instead, he reaffirms his guilt. See (Doc. No. 3 at 2). Because
Petitioner cannot show cause, prejudice, or actual innocence, he cannot overcome the procedural
bar. See Pettiford, 612 F.3d at 280-84; Mikalajunas, 186 F.3d at 493-94.
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Finally, in addition to the guilty plea waiver and procedural default, Petitioner’s
challenge to his guidelines range is not cognizable on collateral review. “Barring extraordinary
circumstances, [] an error in the application of the Sentencing Guidelines cannot be raised in a §
2255 proceeding.” United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999); see
Mikalajunas, 186 F.3d at 495-96. Petitioner has not shown any error by this Court. In Gardner,
the Fourth Circuit held that the appellant’s prior convictions for common law robbery did not
qualify as crimes of violence under the Armed Career Criminal Act (“ACCA”) because they did
not qualify under the force clause in 18 U.S.C. § 924(e)(2)(B)(i) and the residual clause in §
924(e)(2)(B)(ii) was unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551,
2557 (2015). The Supreme Court recently held in Beckles v. United States, 137 S. Ct. 886, 895
(2017), that “the advisory Sentencing Guidelines are not subject to a vagueness challenge under
the Due Process Clause and that § 4B1.2(a)’s residual clause is not void for vagueness.”
Here, Petitioner was sentenced under U.S.S.G. § 2K2.1(a)(3), which uses the definition
of a crime of violence from § 4B1.2(a). U.S.S.G. § 2K2.1 cmt. n.1. Because Beckles held that
the residual clause in § 4B1.2(a) is not void for vagueness and Petitioner has not alleged or
shown that his prior common law robbery conviction does not qualify as a crime of violence
under this residual clause, he has not shown any error by this Court. See United States v.
Carmichael, 408 F. App’x 769 at *2 n.2 (4th Cir. 2011) (unpublished) (holding common law
robbery conviction qualified as a crime of violence under the ACCA’s residual clause).
Moreover, even if he could show error, Petitioner cannot show extraordinary
circumstances where he was sentenced within the statutory limits under an advisory guidelines
scheme. See United States v. Foote, 784 F.3d 931, 940 (4th Cir. 2015) (holding erroneous
application of career offender enhancement “was not a fundamental defect that inherently results
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in a complete miscarriage of justice”). The absence of extraordinary circumstances also is clear
from this Court’s determination that it would impose the same sentence even if Petitioner’s prior
common law robbery conviction was not used to enhance his sentence. Accordingly, this claim
is dismissed as non-cognizable.
In sum, because Petitioner’s claim is barred by his plea waiver, is procedurally defaulted,
and is, in any event, non-cognizable in this § 2255 proceeding, his motion to vacate is dismissed.
IV.
CONCLUSION
For the foregoing reasons, the Court denies and dismisses Petitioner’s § 2255 petition.
IT IS, THEREFORE, ORDERED that:
1.
Petitioner’s Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. §
2255, (Doc. No. 1), is DENIED and DISMISSED. To this extent, the
Government’s Motion to Dismiss, (Doc. No. 5), is GRANTED.
2.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules
Governing Section 2254 and Section 2255 Cases, this Court declines to issue a
certificate of appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell,
537 U.S. 322, 338 (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); Slack v. McDaniel, 529 U.S. 473,
484 (2000) (when relief is denied on procedural grounds, a petitioner must
establish both that the dispositive procedural ruling is debatable and that the
petition states a debatable claim of the denial of a constitutional right).
Signed: May 8, 2017
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