Tate v. USA

Filing 4

MEMORANDUM DECISION AND ORDER DENYING PETITIONERS MOTION TO VACATE, SET ASIDE, OR CORRECT SENTENCE-For the above stated reasons, Petitioners § 2255 motion to vacate, correct or set aside his sentence is DENIED. Signed by Judge Clark Waddoups on 1/14/16. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

Robert John Tate,
Petitioner,

MEMORANDUM DECISION AND
ORDER DENYING PETITIONER’S
MOTION TO VACATE, SET ASIDE, OR
CORRECT SENTENCE

v.
United States,

Case No. 2:14-cv-00038-CW
Respondent.

Judge Clark Waddoups

Robert Tate (“Petitioner”) moves under 28 U.S.C. § 2255 to vacate, set aside, or correct
his sentence of 180 months in prison. (Dkt. No. 1). For the reasons stated below, the motion is
DENIED.
BACKGROUND
On November 5, 2007 and November 19, 2007, Petitioner pled guilty in Utah state court
to five separate felonies, charged in five separate cases. Three of the five were charges of
possession of a controlled substance with intent to distribute in violation of Utah Code § 58-378(1)(a)(iii). (Dkt. No. 1, pp. 7–14); (Case No. 2:12-cr-264, Dkt. No. 55, ¶¶ 48, 49, & 53). Two of
the charges were of possession of a controlled substance in violation of Utah Code § 58-378(2)(i). (Dkt. No. 1, pp. 7–14); (Case No. 2:12-cr-264, Dkt. No. 55, ¶¶ 47 & 52). The events
supporting the five separate charges occurred on October 22, 2006, January 1, 2007, March 2,
2007, August 8, 2007 and August 28, 2007. (Dkt. No. 1, p. 7); (Case No. 2:12-cr-264, Dkt. No.
55, ¶¶ 47, 48, 49, 52, and 53). Although Petitioner pled guilty to four of the five felonies on the
same date, November 19, 2007, he received separate sentences for each of them which ran

concurrently. (Presentence Report, Case No. 2:12-cr-264, Dkt. No. 55, ¶¶ 47, 48, 49, and 52).
Petitioner was discharged from the Utah State Prison on August 23, 2011.
On May 17, 2012, Petitioner was named in a four-count federal indictment for three
counts of possession of methamphetamine with intent to distribute under 21 U.S.C. § 841(a)(1)
and for one count of felon in possession of a firearm and ammunition under 18 U.S.C. §
922(g)(1). (Case No. 2:12-cr-264, Dkt. No. 1). The government filed a notice of enhancement
based on Petitioner having been convicted of at least three prior felony drug offenses, subjecting
him to a sentence of not less than 15 years. (Case No. 2:12-cr-264, Dkt. No. 20). On January 15,
2013, Petitioner pled guilty to being a felon in possession of a firearm and ammunition. (Case
No. 2:12-cr-264, Dkt. Nos. 39, 53). In the plea agreement, Petitioner acknowledged he was
subject to a term of imprisonment of not less than 15 years and stipulated that he had previously
been convicted of “three or more violent felonies and/or serious drug felonies.” (Case No. 2:12cr-264, Dkt. No. 39, ¶ 2). The stipulation listed the three prior drug convictions the government
had laid out in its notice of enhancement. (Id, at ¶ 11). 1
At the sentencing hearing, this court found the prior state convictions were sufficient to
invoke the Armed Career Criminal Act under 18 U.S.C. § 924(e) (the “ACCA”), and sentenced
Petitioner to the 15–year mandatory minimum sentence. (Case No. 2:12-cr-264, Dkt. No. 54).
Petitioner now argues the court unlawfully applied the ACCA and filed this motion for habeas
relief pursuant to 28 U.S.C. § 2255, asking the court to vacate, set aside, or correct his sentence.
(Dkt. No. 1, pp. 1–6).

1

The court acknowledges the discrepancy between the case numbers listed in the presentence report and
those listed in both the notice of enhancement and Petitioner’s statement in advance of his plea agreement. However,
the case numbers listed in the presentence report were used to calculate Petitioner’s criminal history for purposes of
the Federal Sentencing Guidelines and—as explained below—do not affect the court’s analysis here. It is undisputed
that each of the convictions stipulated to in Petitioner’s statement were for prior felony drug offenses.

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LEGAL STANDARD
To be entitled to habeas relief under 28 U.S.C. § 2255, a petitioner must show he has the
“right to be released upon the ground 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.” United States v. Shipp, 589 F.3d 1084, 1087 n.1 (10th Cir.
2009) (alterations omitted). Notwithstanding the merits of a petitioner’s § 2255 motion, such is
generally “not available to test the legality of a matter which should have been raised on direct
appeal [but was not].” United States v. McGaughy, 670 F.3d 1149, 1159 (10th Cir. 2012).
ANALYSIS
I.

PETITIONER’S § 2255 MOTION IS PROCEDURALLY BARRED FOR
FAILURE TO RAISE THE ISSUES ON DIRECT APPEAL
When a petitioner “fails to raise an issue on direct appeal, he is barred from raising it in a

§ 2255 motion unless he can show cause excusing his procedural default and actual prejudice
resulting from the errors of which he complains, or can show that a fundamental miscarriage of
justice will occur if his claim is not addressed.” McGaughy, 670 F.3d at 1159 (internal quotation
marks omitted). “This procedural bar applies to a defendant’s collateral attack on his sentence,
just as it does to an attack on his conviction.” Id. (alterations omitted). When a petitioner fails to
show cause excusing his procedural default, thereby allowing relief only upon a finding of a
fundamental miscarriage of justice, the Tenth Circuit has acknowledged that this is “a markedly
narrow [exception], implicated only in extraordinary cases where a constitutional violation has
probably resulted in the conviction of one who is actually innocent.” Id. (emphasis added)
(alterations and internal quotation marks omitted).

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Petitioner concedes in his motion that he never directly appealed his sentence. (Dkt. No.
1, p. 2). Furthermore, he has shown no cause for this failure and makes no argument that he is
actually innocent. To the contrary, Petitioner pled guilty to being a felon in possession of a
firearm and ammunition, and now only argues the court should not have sentenced him under the
ACCA. Because Petitioner has not presented any argument justifying his failure to appeal his
sentence, he is procedurally barred from bringing this § 2255 motion.
II.

PETITIONER’S MOTION FAILS ON THE MERITS
Even if Petitioner could show cause for his failure to raise this issue on direct appeal, his

motion still fails on the merits.
The ACCA “mandates a 15–year term of imprisonment for a person who violates section
922(g) and has three previous convictions for a serious drug offense committed on occasions
different from one another.” United States v. de los Santos, 680 F.3d 1217, 1218 (10th Cir. 2012)
(alterations and internal quotation marks omitted). Petitioner’s contention lies with the court’s
determination that his prior state drug convictions constituted “three previous convictions” rather
than one single conviction. He presents two arguments to support his position. First, he argues
Tenth Circuit precedent requires the court to consider his three state convictions as one because
they involved similar offenses and were dealt with in a single plea agreement. (Dkt. No. 1, p. 3).
Second, Petitioner argues Utah state courts treat his convictions as one and, therefore, the Full
Faith and Credit Clause of the U.S. Constitution and 28 U.S.C. § 1738 require the federal court
to do the same. (Id. at 3–4). Alternatively, Petitioner argues that under Alleyne v. United States,
___ U.S.___, 133 S. Ct. 2151 (2013), he was entitled to have a jury determine any facts that
would increase a mandatory minimum sentence, including the fact that he had three prior serious
drug offenses. (Dkt. No. 1, p. 4–5).

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a. Tenth Circuit Precedent Requires a Finding of Three Previous Convictions
Petitioner relies on numerous cases to support his argument that Tenth Circuit precedent
requires his prior state drug convictions to be consolidated. (Dkt. No. 1, p. 3) (citing United
States v. Alberty, 40 F.3d 1132 (10th Cir. 1994); United States v. Mohammed, 150 Fed.Appx.
887 (10th Cir. 2005); United States v. Asberry, 394 F.3d 712 (9th Cir. 2005); United States v.
Huskey, 137 F.3d 283 (5th Cir. 1998)). These cases, however, examine the criteria for
determining whether prior convictions are related for the purposes of computing a defendant’s
criminal history under section 4A1.2 of the Federal Sentencing Guidelines. These cases are
distinguishable because, here, the court did not impose Petitioner’s sentence under section
4A1.2. Rather, it imposed Petitioner’s sentence under the ACCA, which analyzes prior
convictions differently than section 4A1.2. 2
Unlike section 4A1.2, the ACCA looks at whether prior criminal offenses were
committed “on occasions different from one another.” de los Santos, 680 F.3d at 1219. The
Tenth Circuit has interpreted this language to mean offenses committed at “distinct, different
times,” and has repeatedly held that similar acts of criminal conduct occurring closely in time
may constitute separate, predicate offenses when the defendant “had a meaningful opportunity to
cease his illegal conduct [but] … made the decision to continue engaging in criminal activity.”
Id. at 1220 (holding four cocaine related offenses that occurred within a one month time period
were sufficiently separate and distinct offenses for purposes of applying the ACCA); see also
United States v. Tisdale, 921 F.2d 1095 (10th Cir. 1990) (holding defendant’s successive
burglaries of two private businesses and a post office located within the same shopping mall
were “separate and distinct criminal episodes” even though the convictions were prosecuted
2

The court also conducted an analysis under section 4A1.2 and determined Petitioner’s guideline range
was between 188 to 235 months. The court then departed downward from this range and imposed the mandatory
minimum sentence of 180 months under the ACCA. (Case No. 2:12-cr-264, Dkt. Nos. 54–55).

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together); United States v. Johnson, 130 F.3d 1420 (10th Cir. 1997) (holding three drug offenses
occurring on March 23, March 26, and August 26, 1993 constituted separate offenses even
though each offense involved the sale of cocaine to an undercover officer).
Prior to his felon in possession of a firearm conviction, Petitioner was convicted of three
felony counts of possession with intent to distribute a controlled substance and two felony counts
of possession of a controlled substance. The offenses were committed on separate dates over
nearly a 10-month timespan. (Id. at 8). Petitioner surely had a meaningful opportunity to cease
his illegal conduct between each of these offenses, and nevertheless made the decision not to do
so. Therefore, the court correctly determined these offenses were committed on occasions
separate from one another and properly applied the ACCA.
b. The Full Faith and Credit Provisions are Inapplicable to Federal Courts when
Applying Federal Law
Petitioner next argues the Full Faith and Credit Clause of the United States Constitution
and 28 U.S.C. § 1738 require this court to give the same effect to his state court convictions that
the state court would give them. Specifically, he claims Utah state courts treat related drug
convictions as one conviction when the defendant pleads guilty to them in a single plea
agreement. (Dkt. No. 1, pp. 2–4). However, not only does Petitioner fail to provide any authority
to support his argument that Utah state courts treat his convictions as one, but his claim that the
Full Faith and Credit provisions require this court to rely on the state court’s treatment of his
convictions is contrary to Tenth Circuit precedent. The Tenth Circuit has stated, “[e]ven if the
Full Faith and Credit Clause were binding on federal courts—which it is not …—the
characterization of state court judgments to determine their consequences [on a federal sentence]
is a federal question.” United States v. Carter, 186 Fed. Appx. 844, 847 (10th Cir. 2006) (citing
Univ. of Tenn. v. Elliot, 478 U.S. 788, 799 (1986)). “It does not accord a state judgment less than
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full faith and credit for a federal court to determine its effect on a subsequent federal sentence
under federal law.” Id. Therefore, even if Utah state courts do treat Petitioner’s convictions as
one, this court must still analyze the effects of the prior convictions under the Tenth Circuit’s
ACCA jurisprudence. As explained above, the Court properly considered Petitioner’s
convictions as separate criminal offenses and appropriately applied the ACCA.
c. Alleyne Neither Applies Retroactively to Cases on Collateral Review, nor Would It
Render Petitioner’s Sentence Unconstitutional if It Were Applied Retroactively
i.

Alleyne Does not Apply Retroactively to Cases on Collateral Review

The Tenth Circuit has expressly stated that the rule in Alleyne v. United States, 133 S. Ct.
2151 (2013) “has not been made retroactive to cases on collateral review by the Supreme Court.”
In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013) (internal quotation marks omitted). Petitioner
concedes this fact in his motion, but argues the Court has overlooked the fact that Alleyne
overruled Harris v. United States, 536 U.S. 545 (2002), thereby creating a new rule. (Dkt. No. 1,
p. 5). Petitioner further argues new rules are automatically retroactive. (Id.). Although Petitioner
is correct that Alleyne overruled Harris, his conclusion that new rules are automatically
retroactive is a misstatement of the law. The Tenth Circuit explained in In re Payne that a new
rule of law created from a United States Supreme Court decision is not automatically retroactive
to cases on collateral review. Rather, this “requirement is satisfied only if the [Supreme] Court
has held that the new rule is retroactively applicable to cases on collateral review.” In re Payne,
733 F.3d at 1029 (alterations omitted). The Supreme Court has never held that Alleyne applies
retroactively and, therefore, it does not apply to Petitioner’s case.
ii.

Petitioner’s Claim Fails even if Alleyne Applied Retroactively

Even assuming Alleyne retroactively applied to Petitioner’s case, his argument would still
fail. Alleyne considered the general rule laid out in Apprendi v. New Jersey, 530 U.S. 466 (2000),
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which held that any “facts that increase the prescribed range of penalties to which a criminal
defendant is exposed” are elements of the crime. Apprendi, 530 U.S. at 490. As such, the Sixth
Amendment provides defendants with the right to have a jury find those facts beyond a
reasonable doubt. Id. at 484. Alleyne held that the reasoning in Apprendi not only applied to
“facts increasing the statutory maximum [sentence],” but also “to facts increasing the mandatory
minimum.” Alleyne, 133 S.Ct. at 2160, overruling Harris v. United States, 536 U.S. 545 (2002).
However, “[i]n Almendarez-Torres v. United States, 523 U.S. 224, (1998), the Court held that
the fact of a prior conviction need not be submitted to a jury and proved beyond a reasonable
doubt to serve as the basis for enhancing a defendant’s sentence.” United States v. Ridens, 792
F.3d 1270, 1274 (10th Cir. 2015) (emphasis added). Almendarez-Torres’ narrow exception to the
general rule survived Apprendi, see Apprendi, 530 U.S. at 489–90, and Alleyne explicitly
declined to revisit the question. See Alleyne, 133 S.Ct. at 2160 n. 1. Therefore, under Alleyne, the
fact of a prior conviction is not required to be found beyond a reasonable doubt by a jury even
though it would increase the mandatory minimum sentence. As such, Petitioner’s Sixth
Amendment rights were not violated, and the court appropriately found his three prior drug count
convictions were sufficient to apply the ACCA’s 15–year mandatory minimum sentence.
CONCLUSION
For the above stated reasons, Petitioner’s § 2255 motion to vacate, correct or set aside his
sentence is DENIED.
SO ORDERED this 14th day of January, 2016.
BY THE COURT:

______________________________
Clark Waddoups
United States District Court Judge
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