Morgan v. USA
Filing
6
ORDER DENYING AS MOOT MOTION UNDER 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY: Denying as Moot 1 Motion to Vacate, Set Aside or Correct Sentence (2255); Court denies certificate of appealability. Signed by District Judge John Preston Bailey on 9/6/18. (copy to Petitioner by cert. mail)(soa)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
WHEELING
KEVIN MORGAN,
Petitioner,
v.
CIVIL ACTION NO. 5:16-CV-119
CRIMINAL ACTION NO. 5:15-CR-68
(BAILEY)
UNITED STATES OF AMERICA,
Respondent.
ORDER DENYING AS MOOT MOTION UNDER 28 U.S.C. § 2255 TO VACATE,
SET ASIDE, OR CORRECT SENTENCE BY A PERSON IN FEDERAL CUSTODY
On July 27, 2016, the petitioner, an inmate then-incarcerated at FCI Beckley in
Beaver, West Virginia, filed a pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside,
or Correct Sentence by a Person in Federal Custody [Doc. 36].1 On August 22, 2016,
Magistrate Judge James E. Seibert entered an Order directing the Government to respond
to petitioner’s § 2255 motion [Doc. 41]. On September 15, 2016, the Government filed its
response [Doc. 46]. On September 23, 2016, and again on October 7, 2016, petitioner
replied [Docs. 52, 57]. Having been fully briefed, this matter is now ripe for decision. For
the reasons stated below, this Court will deny petitioner’s Motion as moot.
FACTS
A. Conviction and Sentence
On December 1, 2015, the Grand Jury in the Northern District of West Virginia
returned a single-count indictment with a forfeiture allegation against petitioner, charging
1
Unless otherwise noted, all references to documents in the record refer to the docket in
Criminal Action No. 5:15-CR-68.
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him with being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and
924(a)(2) [Doc. 1 at 1].
On January 28, 2016, petitioner signed a plea agreement in which he agreed to
plead guilty to Count One of the Indictment [Doc. 23]. In the plea agreement, petitioner
waived his right to appeal his conviction and sentence, and agreed to a limited waiver of
his right to collaterally attack his conviction and sentence. Specifically, the plea agreement
contained the following language regarding petitioner’s waivers:
13. The defendant is aware that Title 18, United States Code, Section 3742
affords him the right to appeal the sentence imposed. Acknowledging all this,
and in exchange for the concessions made by the United States in this Plea
Agreement, the defendant waives the right:
(1) to appeal any order, the conviction and any sentence that is within the
maximum provided in the statute of conviction or the manner in which that
sentence was determined on any ground whatsoever, including those
grounds set forth in Title 18, United States Code, Section 3742; and
(2) to challenge the conviction or the sentence or the manner in which it was
determined in any post-conviction proceeding under Title 28, United States
Code, Section 2255. Nothing in this paragraph, however, will act as a bar to
the defendant perfecting any legal remedies he may otherwise have on
appeal or collateral attack respecting claims of ineffective assistance of
counsel or prosecutorial misconduct[][.] The defendant agrees that there is
currently no known evidence of ineffective assistance of counsel or
prosecutorial misconduct.
[Id. at 5].
On February 1, 2016, petitioner appeared before Magistrate Judge James E. Seibert
to enter his plea of guilty in open court. At the time, petitioner was forty (40) years old and
had gone to school through the 11th grade [Doc. 42 at 3]. He testified that he could read,
write, and understand the English language [Id. at 2]. He denied any physical or mental
disability that might affect his ability to fully participate in the proceedings [Id. at 2–3]. He
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denied any medication, drug, or alcohol use of any kind within the previous 24 hours [Id.
at 2]. He testified that he had been treated for addiction in the past [Id. at 3]. The Assistant
United States Attorney (“AUSA”) read aloud or summarized each paragraph of the plea
agreement, including paragraph 13, supra, in open court [Id. at 5–8]. Petitioner testified
that he understood and agreed with all the terms and conditions of the plea agreement [Id.
at 8–10]. Magistrate Judge Seibert specifically asked petitioner if he understood that under
the terms of the waiver of his appellate and post-conviction relief rights, he was waiving the
right to appeal, and the right to collaterally attack his conviction and sentence, unless there
was ineffective assistance of counsel or prosecutorial misconduct [Id. at 9]. Petitioner said
that he understood [Id. at 9–10]. Magistrate Judge Seibert then reviewed all the rights
petitioner was giving up by pleading guilty [Id. at 14–16]. During the plea hearing, the
Government presented the testimony of Heather Kozik, Special Agent with the Bureau of
Alcohol, Tobacco, Firearms, and Explosives (“ATF”) in Wheeling, West Virginia, to establish
a factual basis for the plea [Id. at 16–19]. Petitioner did not contest the factual basis of the
plea [Id. at 20].
After the Government presented the factual basis of the plea, petitioner advised
Magistrate Judge Seibert that he was guilty of Count One of the Indictment [Id.]. Petitioner
further stated under oath that no one had attempted to force him to plead guilty, and that
he was pleading guilty of his own free will [Id.]. In addition, he testified that the plea was
not the result of any promises other than those contained in the plea agreement [Id.].
Petitioner testified that his attorney had adequately represented him, and that his attorney
had left nothing undone [Id. at 21]. Finally, petitioner said he was in fact guilty of the crime
to which he was pleading guilty [Id.].
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At the conclusion of the hearing, Magistrate Judge Seibert determined that the plea
was made freely and voluntarily, there was a basis in fact for the plea, and that petitioner
had full knowledge and understood the consequences of pleading guilty [Id.]. Petitioner did
not object to Magistrate Judge Seibert’s finding.
On April 5, 2016, petitioner appeared before this Court for a contested sentencing
hearing to litigate an issue related to the applicability of the reduction for hunting and
collecting under U.S.S.G. § 2K2.1(b)(2) [Doc. 43]. After hearing testimony from petitioner;
Roger Billiter, owner of Valley Towing and Auto Repair; Sergeant Shannon Huffman of the
Tyler County Sheriff’s Department; and Heather Kozik, ATF Special Agent, and then
argument from counsel, this Court overruled petitioner’s only objection to the PSR, finding
that the U.S.S.G. § 2K2.1(b)(2) Specific Offense Characteristic base offense level reduction
for sporting and collection was inapplicable in petitioner’s case [Id. at 41]. This Court then
announced its tentative findings as to the applicable guidelines and heard argument from
counsel on sentencing recommendations [Id. at 43–44]. Petitioner also gave a brief
allocution [Id. at 44]. After considering petitioner’s personal history and characteristics, his
criminal history, his continued violations on the restrictions of his ability to possess a firearm
and violation of West Virginia law by carrying loaded firearms in a vehicle, his simultaneous
possession of illicit drugs while possessing firearms, the inconsistencies in his testimony,
and the sentencing objectives, [id. at 40–41], this Court sentenced petitioner to 27 months
imprisonment, the lowest end of the applicable guideline range, with credit for time served
since December 7, 2015, to be followed by two years supervised release [Id. at 45]. This
Court noted that even if the sporting exception had been granted, it would have still
imposed the 27-month sentence, given that petitioner admitted to having repeatedly
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violated the law by borrowing and using firearms while being barred from doing so [Id. at
48]. Petitioner was advised that he forfeited his interest in the two firearms and ammunition
[Id. at 47].
Finally, this Court noted that petitioner had entered into a plea agreement that
waived in whole or in part his right to appeal, advised petitioner that such waivers were
generally enforceable, and that the waiver appeared to be enforceable in petitioner’s case
[Id. at 49]. Nonetheless, this Court advised petitioner that if he believed his appellate waiver
was unenforceable for any reason, or his plea somehow unlawful or involuntary, or that
there was some other defect with the proceedings, if he wished to appeal, he must file a
notice of appeal within fourteen days following the entry of the judgment and commitment
order [Id.]. Further, this Court advised petitioner that if he wished, the Clerk of Court could
enter the notice of appeal for him, and that if he could not afford an attorney, the
appropriate court would review his financial affidavit to determine whether counsel would
be appointed [Id. at 49–50]. Petitioner did not reply [Id. at 50].
B. Appeal
Petitioner did not pursue a direct appeal.
C. Federal Habeas Corpus
1. Petitioner’s Contention
Petitioner’s Motion to Vacate ostensibly lists four grounds for relief, but implicitly
raises a fifth—they have been condensed and reordered here for clarity and brevity.
Petitioner contends that:
1) He was entitled to a three-point reduction for acceptance of responsibility,
but only received a two-point reduction [Doc. 36 at 5].
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2) He was entitled to receive the U.S.S.G. § 2K2.1(b)(2) Specific Offense
Characteristic base offense level reduction for sporting and collection,
“because that’s what [he] was doing was hunting” [Id. at 6]. He contends that
the Court chose not to give him the base offense level of 6 for hunting and
collecting because of his past drinking and drug use and his criminal history
[Id. at 10–11].
3) Counsel was ineffective for not bringing up during the sentencing hearing
that Deputy Shannon Huffman “lied his ass off” on November 9, 2015 [Id. at
8].2 Counsel failed to bring up that Sgt. Huffman had a “personal vendetta”
against petitioner; that he had choked petitioner when he arrested him;
searched petitioner’s truck without a warrant; and that he had begun pursuing
petitioner in Wetzel County, when Sgt. Huffman was a Tyler County deputy
[Id. at 11–12].
4) Counsel was ineffective for not objecting to his being wrongfully assessed
criminal history points in his Presentence Investigation Report (“PSR”) for
prior cases that were dismissed [Id. at 12].
5) Counsel was ineffective for not filing an appeal on his behalf [Id. at 4].
Petitioner contends he was taken out of the courtroom two minutes after he
was sentenced and never heard from or talked to his lawyers again. He
asserts that his counsel was “supposed to appeal the case” [Id. at 6].
At bottom, petitioner contends that he “should [not have] got this much time in prison” [Id.
at 12].
As relief, petitioner requests that he be awarded the one point reduction for timely
signing the plea agreement [Id. at 17]. He also requests to have his PSR corrected to “fix
what’s wrong with the points that should be deducted and give [him] time served, or drop
[his] offense level to a 4 and give [him] 20 month[]s” [Id.]. Further, he requests this Court
grant him the U.S.S.G. § 2K2.1(b)(2) Specific Offense Characteristic base offense level
reduction for sporting and collection [Id.].
2
It is unclear what the significance of the date of November 9, 2015, is or if it was merely
a typographical error on petitioner’s part. The traffic stop that Sgt. Huffman conducted on
petitioner, during which the firearms were discovered, occurred on October 9, 2015 [Doc.
43 at 27]. Petitioner was not indicted until December 1, 2015.
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2. Government’s Response
The Government contends that petitioner’s Motion should be dismissed because:
1) his valid waiver precludes consideration of any claims relating to his
sentence or the manner in which it was determined [Doc. 46 at 1];
2) petitioner has failed to articulate, let alone substantiate, any claim of
counsel’s ineffectiveness [Id. at 6]; and
3) petitioner’s claims are precluded because they pertain to the application
of the United States Sentencing Guidelines (“USSG”) [Id. at 8].
3. Petitioner’s Replies
In both of his replies, petitioner reiterates his arguments and attempts to refute the
Government’s on the same. See [Docs. 52, 57].
4. Petitioner’s Current Status
An October 4, 2017, search of the Bureau of Prisons’ (“BOP”) online Inmate Locator
indicated that petitioner had already been released from prison to a halfway house in
Baltimore. A subsequent search, conducted on February 6, 2018, revealed that petitioner
was released from BOP custody on January 26, 2018.
On June 25, 2018, a warrant was issued for petitioner’s arrest for multiple violations
of his terms of supervised release [Doc. 68]. On July 18, 2018, petitioner appeared before
Magistrate Judge Seibert for an initial hearing on supervised release revocation [Doc. 69].
A preliminary revocation hearing was held before Magistrate Judge Seibert on August 3,
2018, wherein the defendant was released from custody and ordered to self-surrender to
the Northern Regional Jail on August 6, 2018 [Docs. 76–78]. The petitioner failed to selfsurrender, and a bench warrant was issued for his arrest on August 6, 2018 [Doc. 78].
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Defendant was arrested on August 7, 2018, and currently remains in custody pending a
final revocation hearing [Id.].
DISCUSSION
Petitioner’s Motion challenges the length of his sentence. Some of his asserted
grounds for relief attack this Court’s determination of the proper offense level (Grounds 1
and 2, supra). Others allege deficiencies in his counsel for failing to raise arguments that
would or could have gotten petitioner a shorter sentence (Grounds 3 and 4, supra).
Additionally, underlying petitioner’s asserted grounds is the implicit assertion that his
counsel failed to appeal the length of petitioner’s sentence on his behalf (Ground 5, supra).
However, none of the grounds for relief asserted by petitioner challenge any aspect of his
guilty plea itself—petitioner challenges only the length of his sentence. As petitioner noted,
his contention is that he “should [not have] got this much time in prison” [Doc. 36 at 12].
Consequently, as petitioner has already served out his original term of incarceration, this
Court can no longer provide him the relief sought in his habeas petition.
“The custody requirement of the habeas corpus statute is designed to preserve the
writ of habeas corpus as a remedy for severe restraints on individual liberty.” Hensley v.
Municipal Court, 411 U.S. 345, 351 (1973). A prisoner meets the custody requirements
of habeas corpus if he is incarcerated at the time he files the petition. Carafas v. LaVallee,
391 U.S. 234, 238 (1968); United States v. Bryson, 981 F.2d 720, 726 (4th Cir. 1992).
This remains true even if a defendant is released from prison during the pendency of the
§ 2255 motion. Id.
A petitioner must, however, also show that in spite of his subsequent release, he can
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still meet “the case or controversy requirement of Article III, § 2, of the Constitution.”
Spencer v. Kemna, 523 U.S. 1, 7 (1998) (where petitioner failed to show injury-in-fact in
challenge to a parole revocation, where petitioner had been released from prison after filing
habeas corpus petition). “Once the convict’s sentence has expired . . . some concrete and
continuing injury other than the now-ended incarceration or parole—some ‘collateral
consequence’ of the conviction—must exist if the suit is to be maintained.” Id. (citations
omitted).
“When a habeas petitioner challenges his underlying conviction, and he is released
during the pendency of his habeas petition, federal courts presume that ‘a wrongful criminal
conviction has continuing collateral consequences’ sufficient to satisfy the injury
requirement” and constitute a viable case or controversy. United States v. Wilson, 525
F.Supp.2d 691, 694 (D. Del. 2007) (citing Spencer, 523 U.S. 1). This presumption does
not apply, however, when (as here) a prisoner challenges only the length of his sentence,
not some aspect of the conviction itself. See, e.g., Bailey v. United States, 2013 WL
4851679, at *5 (N.D. Ala. Sept. 10, 2013) (“Mr. Bailey does not attack the validity of his
guilty plea; he challenges only the length of his sentence. Consequently, because [he] has
been released from prison, the Court can ‘no longer provide him the primary relief sought
in his habeas petition.’ Accordingly, Mr. Bailey’s challenge to his sentence is moot.”)
(citations omitted); Guzman v. United States, 2007 WL 1821698, at *1 (S.D.N.Y. July 1,
2004) (“Since the petition is directed at his sentence, not his conviction, and thus there is
no ‘collateral consequence’ . . . the petition should be dismissed as moot.”); Evans v.
United States, 2011 WL 250334, at *1 (Jan. 25, 2011) (“Petitioner has been released from
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confinement, upon which he began a term of supervised release. The instant Motion to
Vacate does not challenge the conviction itself, but only the length of Petitioner’s sentence
of imprisonment, and seeks re-sentencing without the firearm enhancement under USSG
§ 2D1.1(b)(1). Thus, no collateral consequence of the conviction is at issue and no case
or controversy exists.”).
Here, petitioner is on supervised release, and in fact is currently in custody pending
a final supervised release revocation hearing, which normally would provide this Court a
continuing injury to invoke its jurisdiction. However, petitioner did not challenge the guilty
plea or conviction themselves—he challenged only the length of his original custodial
sentence, which has already been served. Thus, this Court can “no longer provide him the
primary relief sought in his habeas petition,” his challenge to the length of his sentence is
moot, and this Court no longer has jurisdiction over the proceeding. See, e.g., North
Carolina v. Rice, 404 U.S. 244, 246 (1971) (“‘Moot questions require no answer.’
Mootness is a jurisdictional question because the Court ‘is not empowered to decide moot
questions or abstract propositions.’”) (citations omitted).
CONCLUSION
For the reasons stated above, it is hereby ORDERED that:
1. Petitioner’s Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or
Correct Sentence by a Person in Federal Custody [Doc. 36; Civil Action No.
5:16-CV-119, Doc. 1] is DENIED AS MOOT;
2. Respondent’s Motion to Dismiss [Doc. 46] is DENIED AS MOOT; and
3. this Court DENIES a certificate of appealability, finding that the petitioner
has failed to make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484–85
(2000) (in order to satisfy § 2253(c) when court denies relief on procedural
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grounds, a petitioner must demonstrate both that the dispositive procedural
ruling is debatable, and that the petition states a debatable claim of the denial
of a constitutional right).
It is so ORDERED.
The Clerk is directed to transmit copies of this Order to all counsel of record herein
and to mail a copy to the pro se petitioner.
DATED: September 6, 2018.
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