Winbush v. United States of America

Filing 97

MEMORANDUM OPINION AND ORDER adopting 89 Proposed Findings and Recommendations as to Antwaun Maurice Winbush; denying 78 MOTION to Vacate, Set Aside or Correct Sentence (2255) by Antwaun Maurice Winbush; directing that this action is dismissed. Signed by Judge John T. Copenhaver, Jr. on 3/31/2017. (cc: Judge, Magistrate Judge, USA, counsel, movant) (mek)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF WEST VIRGINIA
AT CHARLESTON

ANTWAUN MAURICE WINBUSH,
Movant,
Civil Action No. 2:13-24112
(Criminal No. 2:10-00200)

v.
UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER

Pending is the movant’s motion pursuant to 28 U.S.C. §
2255, filed on October 1, 2013, his amendment thereto filed on
June 10, 2016, with an accompanying affidavit, and an additional
affidavit filed on June 13, 2016.

This action was previously referred to the Honorable
Omar J. Aboulhosn, United States Magistrate Judge, for
submission to the court of his Proposed Findings and
Recommendation (“PF&R”) for disposition pursuant to 28 U.S.C. §
636.

The PF&R was filed on August 12, 2016.

I.

On May 24, 2011, the defendant pled guilty to one
count of possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1), a Class C felony punishable
by a term of imprisonment of not more than twenty years.

He was

sentenced on September 12, 2011, to a 151-month term of
imprisonment, to be followed by a three-year term of supervised
release.

He appealed his conviction and sentence.

On June 7,

2012, the appeal of his conviction was affirmed and, by virtue
of his plea agreement waiver, the appeal of his sentence was
dismissed by the United States Court of Appeals for the Fourth
Circuit.

The Judgment became final after defendant’s petition

for certiorari in the United States Supreme Court was denied on
October 1, 2012.

On August 12, 2016, the magistrate judge entered his
PF&R addressing the substance of each of movant’s grounds for
relief.

Finding each of those grounds to lack merit, the

magistrate judge recommended that the section 2255 motion be
denied.

On August 25, 2016, movant objected on Apprendi grounds

and his continuing claim of ineffective assistance of counsel.

2

Movant argues that, inasmuch as he was sentenced as a
career offender, his sentence was in violation of Apprendi v.
New Jersey, 530 U.S. 466 (2000).

The holding in Apprendi

provides that, other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury and
proven beyond a reasonable doubt.

Inasmuch as the defendant’s

151-month term of imprisonment did not exceed the 20-year
maximum penalty, the defendant’s objection based on Apprendi is
not meritorious.

In addition, movant agreed in his plea

agreement to waive his right to challenge his sentence under
Section 2255, except as to ineffective assistance of counsel.
The magistrate judge aptly found that movant’s appellate waiver
was knowing and intelligent.

With respect to the claim of ineffective assistance of
counsel, after a thorough analysis of the plea colloquy, the
magistrate judge found that movant’s allegation that his plea
was entered into unknowingly or involuntarily due to counsel’s
failure to adequately explain his sentencing exposure is without
merit.

In his objections, movant continues to contend that his

counsel was constitutionally deficient and that his guilty plea

3

was illegal because his counsel led him to believe that he would
not be charged as a career offender.

In his PF&R, the magistrate judge concluded that the
movant’s two prior felony controlled substance convictions were
properly considered by the district court for career offender
purposes, that is, his 2003 conviction for Trafficking in Crack
Cocaine and his 2003 conviction for Illegal Conveyance of Drugs
on to the Grounds of a Detention Facility (hereinafter
“conveyance conviction”).

In his § 2255 petition, the movant

challenges the use of his illegal conveyance conviction as a
predicate for career offender purposes, arguing quite correctly
that it does not qualify as a prior felony controlled substance
offense because it is a mere possession offense.

USSG §

4B1.2(b) defines the term “controlled substance offense” as
follows:
The term “controlled substance offense”
means an offense under federal or state law,
punishable by imprisonment for a term
exceeding one year, that prohibits the
manufacture, import, export, distribution,
or dispensing of a controlled substance (or
a counterfeit substance) or the possession
of a controlled substance (or a counterfeit
substance) with intent to manufacture,
import, export, distribute, or dispense.

4

Inasmuch as the term “controlled substance offense”
for career offender purposes does not include a mere possession
offense, the court finds that the movant’s prior felony
controlled substance “conveyance conviction” does not qualify as
a prior conviction under the career offender guideline at USSG §
4B1.1.

However, for the reasons set forth below, the

defendant’s prior Ohio conviction for “Robbery without
Specification” does qualify as a violent felony and the
defendant remains subject to the career offender guideline.

On October 11, 2016, movant filed his “Motion to leave
to File a Second and Successive 28 U.S.C. 2255(H)(2),” wherein
he seeks relief from career offender status based on Johnson v.
United States, 135 S.Ct. 2551 (2015), which invalidated the
residual clause of the Armed Career Criminal Act.

Although

movant misdirects his Johnson argument to the controlled
substance convictions, the court will treat it as relating
instead to his Ohio conviction for robbery.

II.

Pursuant to the court’s order of November 4, 2016, the
government filed on November 29, 2016, its Response of the
United States in Opposition to Movant’s Motion to Correct
5

Sentence Under 28 U.S.C. § 2255.

Therein it concedes that the

movant’s prior felony conviction for illegal conveyance of drugs
on to the grounds of a detention facility is not a qualifying
controlled substance offense for career offender purposes.

The

government argues that the movant still qualifies as a career
offender based on his 2003 conviction for trafficking cocaine
and his 1998 conviction for “Robbery Without Specification,”
inasmuch as it qualifies as a crime of violence under USSG §
4B1.2.

At the time movant committed the offense of which he
was convicted in this court (October 6, 2010) and at the time he
was sentenced on September 12, 2011, a “crime of violence” was
defined at USSG § 4B1.2 1, as follows:
(a)

The term “crime of violence” means any offense under
federal or state law, punishable by imprisonment for a
term exceeding one year, that –
(1)

has an element the use, attempted use, or
threatened use of physical force against the
person of another, or

(2)

is burglary of a dwelling, arson, or extortion,
involves the use of explosives, or otherwise
involves conduct that presents a serious
potential risk of physical injury to another.

1

The court notes that the definition in effect at the time the defendant
was sentenced remained the same until it was changed effective August 1,
2016.

6

In 2010 and 2011, the enumerated list of covered offenses at
Application Note 1 to USSG § 4B1.2 specifically included
“robbery” as a crime of violence.

Movant was convicted of robbery under Ohio Revised
Code § 2911.02.

The statute in effect at the time of that

conviction states in pertinent part as follows:
(A)

No person, in attempting or committing a theft
offense or in fleeing immediately after the
attempt or offense, shall do any of the
following:
(1)

(2)

Inflict, attempt to inflict, or threaten to
inflict physical harm on another;

(3)

(B)

Have a deadly weapon on or about the
offender’s person or under the offender’s
control;

Use or threaten the immediate use of force
against another.

Whoever violates this section is guilty of
robbery. A violation of division (A)(1) or (2)
of this section is a felony of the second degree.
A violation of division (A)(3) of this section is
a felony of the third degree.

This section of the Ohio statute requires as an element the use
of physical force or the threat of physical force.
2901.01(A)(1) provides as follows:

Ohio R.C. §

“Force” means any violence, compulsion, or
constraint physically exerted by any means
upon or against a person or thing.
7

Within the body of the records from the Franklin
County Ohio Clerk of Courts entitled “CRIMINAL CASE DETAIL,”
attached to the Second Supplemental Response of the United
States In Opposition to Movant’s Motion to Correct Sentence
Under 28 U.S.C. § 2255, filed on January 17, 2017, it is
specified that movant pled guilty on May 26, 1998, as follows:
STATUTE CODE:

2911.02

STATUTE DESC:

ROBBERY

CHARGE CLASS:

F3

It is clear that movant’s third degree robbery conviction under
Ohio R.C. § 2911.02(A)(3) is one that falls within the
definition of a violent felony under the guidelines pursuant to
the force clause (§ 4B1.2(a)(1)) and as an enumerated offense in
the accompanying Application Note 1.

In addition, movant’s robbery conviction, committed
by him when he was seventeen years of age, qualifies as an adult
conviction for career offender purposes.

8

Application Note 1 to USSG § 4B1.2 (2010-11) “Definitions of
Terms Used in Section 4B1.1” defines a “prior felony conviction”
as follows:
“Prior felony conviction” means a prior
adult federal or state conviction for an
offense punishable by death or imprisonment
for a term exceeding one year, regardless of
whether such offense is specifically
designated as a felony and regardless of the
actual sentence imposed. A conviction for
an offense committed at age eighteen or
older is an adult conviction. A conviction
for an offense committed prior to age
eighteen is an adult conviction if it is
classified as an adult conviction under the
laws of the jurisdiction in which the
defendant was convicted (e.g., a federal
conviction for an offense committed prior to
the defendant’s eighteenth birthday is an
adult conviction if the defendant was
expressly proceeded against as an adult).

In movant’s presentence report, which he stated on the
record of the sentencing hearing was in all respects factually
correct, the Ohio robbery conviction is designated as an adult
criminal conviction committed by him when he was seventeen years
of age.

As set forth in the government’s Supplemental Response

of the United States In Opposition to Movant’s Motion to Correct
Sentence Under 28 U.S.C. § 2255, filed on January 4, 2017, the
Franklin County records, made a part of the record in its Second
Supplemental Response referred to above, clearly establish that
9

although movant was initially charged in a juvenile complaint,
he was subsequently transferred to adult status and

indicted

for the first degree felony offense of aggravated robbery with a
firearm.

Movant ultimately pled guilty as an adult to the

lesser included offense of robbery without specification, a
third degree felony offense.

III.

Upon review of the court records filed as exhibits to
the government’s second supplemental response filed on January
17, 2017, the court finds that movant was convicted as an adult
in 1998 of Robbery Without Specification in the Franklin County
Court of Common Pleas. 2

In its Supplemental Response and Second Supplemental
Response, the United States asserts that the records obtained
from the Franklin County Ohio Clerk of Courts establish that
while movant was initially charged in a juvenile complaint, he
was subsequently transferred to adult status and indicted for
the first degree felony offense of aggravated robbery with a
firearm.

Those records consist of the entries set forth in the

2

The court notes that in its order entered on December 19, 2016, directing
the government to respond to this specific issue, the movant was invited to
respond if he wished to do so. Movant did not file a response.

10

“CRIMINAL CASE DETAIL.”

An entry on December 15, 1997, is

designated as “BINDOVER-JUVENILE COURT.”

The movant was

indicted on January 29, 1998, and a separate entry on that same
date sets forth the charge as Aggravated Robbery under Ohio R.C.
§ 2911.01, a first degree felony.

Under Ohio R.C. § 2152.02(AA) the term “transfer” is
defined as follows:
“Transfer” means the transfer for criminal
prosecution of a case involving the alleged
commission by a child 3 of an act that would
be an offense if committed by an adult from
the juvenile court to the appropriate court
that has jurisdiction of the offense.

Ohio R.C. § 2152.12 governs the transfer of juvenile
cases.

Section 2152.12(A)(1)(b)(ii), provides as follows:
(b) After a complaint has been filed
alleging that a child is a delinquent child 4
by reason of committing a category two
offense, the juvenile court at a hearing
shall transfer the case if the child was
sixteen or seventeen years of age at the
time of the act charged and either of the
following applies:
* * *

3
”Child” means a person who is under eighteen years of age.
§ 2152.02(C)(1).
4

See, Ohio R.C.

The definition of a “delinquent child” includes one who violates any law
of Ohio or the United States that would be an offense if committed by an
adult. Ohio R.C. § 2152.02(F)(1).

11

(ii) Division (A)(2)(b) of Section 2152.10
of the Revised Code requires the mandatory
transfer of the case, and there is probable
cause to believe that the child committed
the act charged.

Ohio R.C. § 2152.02(CC)(1) states in pertinent part as
follows:
(CC) “Category two offense” means any of the following:
(1) A violation of section 2903.03, 2905.01, 2907.02,
2909.02, 2911.01, or 2911.11 of the Revised Code (emphasis
added);
* * *

Ohio R.C. § 2152.10 sets forth the circumstances
respecting mandatory and discretionary transfers.

Section

2152.10(A)(2)(b) requires mandatory transfer when the following
factors apply:

(1) a child is charged with a category two

offense (other than § 2905.01); (2) the child was sixteen years
of age or older at the time of the commission of the act
charged; and (3) the child is alleged to have had a firearm on
or about the child’s person or under the child’s control while
committing the act charged and to have displayed the firearm,
brandished the firearm, indicated

possession of the firearm, or

used the firearm to facilitate the commission of the act
charged.

Once the transfer has taken place pursuant to Ohio
12

R.C. § 2152.12, adult status attaches and the individual is no
longer deemed a child.

See, Ohio R. C. § 2152.02(C)(4).

The factors set forth above apply in this case.
Movant’s case was a “bindover” from juvenile court to the
Franklin County Court of Common Pleas General Division (“Court
of Common Pleas”) 5 pursuant to a transfer for criminal
prosecution.

The transfer was mandatory based on the following:

(1) movant was charged with Aggravated Robbery, which is
specifically designated under Ohio law to be a “Category two
offense;” (2) movant was 17 years of age at the time of the
commission of the offense as stated in his presentence report;
and (3) movant’s conduct involved a firearm, as evidenced on
page 1 of the “CRIMINAL CASE DETAIL,” which sets forth the
charge of “AGGRAVATED ROBBERY,” accompanied by the further
description of “Specifications:

USE OF FIREARM, DISPLAYED OR

BRANDISHING FIREARM.”

5

The general division of the court of common pleas has jurisdiction over a
criminal prosecution involving a juvenile when prosecution of the case has
been transferred pursuant to a proper bindover procedure. State of Ohio v.
Wilson, 73 Ohio St.3d 40 (1995).

13

After the mandatory transfer, movant was indicted for
Aggravated Robbery.

The case proceeded in the Court of Common

Pleas through the conclusion of the case.

On May 26, 1998,

movant pled guilty to Robbery without Specification, a third
degree felony, for which he received a sentence of one year on
that same date.

The offense to which he pled guilty is one

punishable by imprisonment for as long as three years. 6

Pursuant to the records before the court, and when
viewed in conjunction with the applicable Ohio statutes, the
court concludes that the movant was treated as an adult for
purposes of prosecution and that his prior conviction for
Robbery without Specification qualifies as a prior violent
felony offense under the career offender guideline.

IV.

Based upon a de novo review, and having found the
objections meritless, the court adopts the magistrate judge’s
PF&R in all respects, except insofar as it finds the movant’s
prior conveyance conviction to be a controlled substance offense

6

Ohio R.C. § 2929.14(3)(b) states that a felony of the third degree that is
not an offense for which division (A)(3)(a) of this section applies, the
prison term shall be nine, twelve, eighteen, twenty-four, thirty or thirtysix months.

14

as defined under USSG § 4B1.2(b) for career offender purposes.
Nevertheless, the movant remains subject to career offender
status by virtue of his 2003 conviction for trafficking cocaine
and his 1998 conviction for robbery without specification.

With respect to movant’s subsequent Johnson claim, his
sentence was not enhanced based on the residual clause of the
Armed Career Criminal Act.
inapplicable.

Consequently, Johnson is

Although it is clear that movant’s robbery

conviction is one that falls within the definition of a violent
felony under the applicable guidelines herein, Johnson does not
apply to the United States Sentencing Guidelines.

See, Beckles

v. United States, 580 U.S. ____ (2017) (the advisory guidelines
are not subject to vagueness challenges under the Due Process
Clause).

The court, accordingly, ORDERS that the defendant’s §
2255 motion be, and it hereby is, denied, and that this action
be, and it hereby is, dismissed.

While movant’s argument

with respect to Johnson is without merit for the reasons set
forth above, the court is in any event without authority to
grant movant’s motion to file a second or successive motion
under 28 U.S.C. § 2255.

15

The Clerk is directed to forward copies of this written
opinion and order to the movant, all counsel of record and the
United States Magistrate Judge.

DATED:

March 31, 2017

John T. Copenhaver, Jr.
United States District Judge

16