Battle v. United States of America
Filing
124
MEMORANDUM OPINION AND ORDER: The court ADOPTS the 119 Findings and Recommendations of Magistrate Judge VanDervort, DENIES Platinff's 107 Motion under 28 U.S.C. Section 2255 and directs the Clerk to remove this matter from the court's docket. Signed by Judge David A. Faber on 3/29/2012. (cc: attys; any unrepresented party) (msa)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BECKLEY
TERRANCE L. BATTLE,
Plaintiff,
v.
CIVIL ACTION NO. 5:09-0058
(Criminal No. 5:04-00179)
UNITED STATES OF AMERICA,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiff’s motion under 28
U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a
Person in Federal Custody.
By Standing Order, the action was
referred to United States Magistrate Judge R. Clarke VanDervort
for submission of findings of fact and recommendation regarding
disposition pursuant to 28 U.S.C. § 636(b)(1)(B).
Magistrate
Judge VanDervort submitted his Findings and Recommendation
(“PF&R”) to the court on November 2, 2011, in which he
recommended that the court deny plaintiff’s motion under 28
U.S.C. § 2255, and remove the matter from the court’s docket.
In accordance with the provisions of 28 U.S.C. § 636(b),
the parties were allotted fourteen days plus three mailing days
in which to file any objections to Magistrate Judge VanDervort’s
Findings and Recommendations.
filed his objections.
On November 18, 2011, plaintiff
With respect to those objections, the
court has conducted a de novo review.
I.
Background
On February 16, 2005, Battle pled guilty to being a felon
in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and 924(a)(2).
At sentencing, the court determined
that a base offense level of 24 was appropriate, pursuant to
U.S.S.G. § 2K2.1(a)(2), because appellant had two prior
controlled-substance felony convictions.
On appeal to the United
States Court of Appeals for the Fourth Circuit, Battle asserted
that he had only one qualifying prior felony controlled substance
offense conviction and that the district court thus erred by
applying § 2K2.1(a)(2).
U.S.S.G. § 2K2.1(a)(2) applies if “the defendant
committed any part of the instant offense subsequent to
sustaining at least two felony convictions of either a crime of
violence or a controlled substance offense.”
To qualify as a
felony controlled substance offense conviction under
§ 2K2.1(a)(2), the offense must satisfy two requirements: (1) the
offense must have been a “controlled substance offense” as
defined at § 4B1.2(b); and (2) the offense must have received
criminal history points pursuant to § 4A1.2(a), (b), or (c).
U.S.S.G. § 2K2.1, app. notes 1 & 12.
See
A “controlled substance
offense” includes any offense “punishable by imprisonment for a
term exceeding one year” that prohibits “the possession of a
controlled substance . . . with intent to manufacture, import,
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export, distribute, or dispense.”
U.S.S.G. § 4B1.2(b).
The
Guidelines also assign criminal history points for prior
sentences of imprisonment.
U.S.S.G. § 4A1.1. But if the term of
imprisonment did not exceed one year, a district court may only
assign points if the sentence was “imposed within ten years of
the defendant's commencement of the instant offense.”
U.S.S.G. §
4A1.2(e)(2).
The Fourth Circuit affirmed, concluding that Battle’s
base offense level was properly calculated at sentencing.
States v. Battle, 499 F.3d 315, 325-26 (4th Cir. 2007).
United
The
court found that the offenses outlined in paragraphs 47 and 57 of
the presentence report qualified as felony controlled substance
offense convictions for purposes of § 2K2.1(a).
See id.
Noting
that the district court had erred in not assigning criminal
history points to the 1994 conviction, the appeals court
determined that it was properly counted as a predicate
conviction.
See id.
Plaintiff’s sole objection to the PF&R concerns its
failure to consider the applicability of the decision in United
States v. Simmons, 649 F.3d 237 (4th Cir. 2011), to his case.
According to Battle,
The statute under which the prior conviction in
question was obtained against Battle is identical
to the statute in Simmons in that both are
structured to require the government to file and
prove the existence of aggravating factors in
3
order to subject the defendant to an enhanced
sentence. Since those preconditions were not met
in Battle’s 1994 conviction, his actual and
practical sentencing exposure was limited to 12
months, and thus the conviction is not a
qualified predicate under 2K2.1. Accordingly,
the Magistrate’s report and recommendation ought
to be rejected to the extent it conflicts with
the prevailing law in this Circuit and Movant’s
sentence be corrected and reduced to a level
commensurate with a Base Offense Level of 20.
Objections at p.2.
Battle did not seek to amend his § 2255 to
argue that Simmons should govern his claim that his base offense
level was improperly calculated at sentencing.
His objections
are the first time that he informed the court that he believed
the Simmons decision was applicable to his case.
II.
Analysis
The court assumes, without deciding, that Battle may
assert his Simmons claim in this proceeding.1
At issue in
Simmons was whether a prior North Carolina conviction was for “an
1
As noted above, the Fourth Circuit considered the issue
of whether Battle’s 1994 conviction was a qualifying felony for
purposes of U.S.S.G. § 2K2.1(a)(2) and concluded that it was.
Absent an intervening change in the law, issues decided on direct
appeal may not be relitigated on collateral review. Boeckenhaupt
v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). The
Fourth Circuit has not held that Simmons is retroactive nor has
the Supreme Court held that Carachuri—Rosendo v. Holder, 130
S.Ct. 2577 (2010), the case on which the holding in Simmons is
based, is retroactive to cases on collateral review. Smith v.
Rivera, C/A No. 9:141-3405-DCN-BM, 2012 WL 589285, *3 (D.S.C.
Jan. 27, 2012).
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offense punishable by imprisonment for more than one year. “
at 239.
Id.
The Simmons court held that an offense was punishable by
a prison term exceeding one year only if the specific defendant
had been eligible for such a sentence considering his criminal
history and the nature of the offense.
Id. at 243–44.2
According to Battle, the 1994 conviction relied upon in
determining his base offense level was not punishable by a term
of imprisonment exceeding one year and, therefore, did not
qualify as a predicate felony under U.S.S.G. § 2K2.1(a)(2).
Battle is incorrect.
On October 14, 1994, in New Jersey Superior Court, Battle
was convicted of possession with intent to distribute cocaine, in
violation of N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3).
He was sentenced to 36 days in custody with credit for time
served and three years of probation.
Under New Jersey law, possession with intent to
distribute cocaine, in violation of N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3), is a crime of the third degree.
Under
New Jersey’s sentencing scheme, a person convicted of a crime of
the third degree faces a term of imprisonment of between three
and five years.
N.J.S.A. 2C:43-6a(3).
However, pursuant to
N.J.S.A. § 2C:44-1(e), a first-time offender convicted of a
2
In so doing, the court overruled United States v. Harp,
406 F.3d 242, 246 (4th Cir. 2005).
5
third-degree crime is entitled to a presumption against
imprisonment.
That statute provides:
The court shall deal with a person convicted of
an offense other than a crime of the first or
second degree, who has not previously been
convicted of an offense, without imposing
sentence of imprisonment, unless having regard to
the nature and circumstances of the offense and
the history, character and condition of the
defendant, it is of the opinion that his
imprisonment is necessary for the protection of
the public . . . .
N.J.S.A. § 2C:44-1(e); Henries v. United States, Civil No. 055013(SDW), 2008 WL 2386170, *6-7 (D.N.J. Jun. 9, 2008).
However, in United States v. Minnick, 949 F.2d 8, 9-10
(1st Cir. 1991), the United States Court of Appeals for the First
Circuit concluded that, under New Jersey law, a first offense
conviction of a third-degree crime is “punishable by imprisonment
for a term exceeding one year” because a three to five-year
prison sentence could be imposed if the presumption against nonimprisonment was overcome.
Relying on Minnick, the Henries court
found that the defendant’s conviction of third-degree possession
of a controlled substance was a prior felony conviction of a
controlled substance offense for purposes of the Career Offender
Guideline under the United States Sentencing Guidelines.
Henries, 2008 WL 2386170, *7.
Even if the court were to agree with Battle that the
decisions in Carachuri—Rosendo v. Holder, 130 S.Ct. 2577 (2010),
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and United States v. Simmons, 649 F.3d 237 (4th Cir. 2011), have
called into question the holdings of the foregoing authorities
(and the court declines to do so), Battle still would not be
entitled to relief.
New Jersey’s presumption of non-imprisonment
applies only to persons who have not previously been convicted of
an offense.
State of New Jersey v. Jonuzi, 2010 WL 5392768, *1
(N.J. Super. A.D. Dec. 27, 2010) (“The presumption against
imposition of a sentence of imprisonment upon a defendant applies
only if the defendant has not previously been convicted of an
offense.”) (internal citations and quotations omitted).
Under
the New Jersey Code, “offense” is defined as “a crime, a
disorderly persons offense or a petty disorderly persons
offense.”
N.J.S.A. 2C:1-14(K); Jonuzi, 2010 WL 5392768, *1.
“Application of this presumption [against imprisonment] is
defeated when a defendant has been convicted of a prior offense,
including a disorderly persons offense.”
State v. J.P., 2012 WL
328971, * (N.J. Super. A.D. Feb. 3, 2012); see also State v.
Battle, 256 N.J. Super. 268, 285 (App. Div.), certif. denied, 130
N.J. 393 (1992)(“Hence, a disorderly persons offense qualifies as
a prior conviction.”).
At the time of his 1994 conviction, Battle was not a
first-time offender.
Paragraph 46 of the PSI states that, on
November 4, 1991, Battle was found guilty of disorderly conduct
in Rahway, New Jersey Municipal Court.
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He was given credit for
one day served.
Therefore, Battle was not entitled to the
presumption against imposition of a sentence of imprisonment.
2010 WL 5392768, *1 (“Consequently, there is no presumption
against imposition of a sentence of imprisonment in favor of a
defendant who has been previously convicted of a disorderly
persons offense.”).
Because his 1994 conviction was punishable
for a term exceeding one year,3 his Base Offense Level at
sentencing was properly calculated.
Accordingly, his objection
based on Simmons is OVERRULED.
For the reasons expressed herein, plaintiff’s objections
are OVERRULED.
Accordingly, the court adopts the Findings and
Recommendations of Magistrate Judge VanDervort, DENIES
3
To the extent Battle may be arguing that because his
actual sentence did not exceed one year, it was not a “controlled
substance offense” under the guidelines, that argument is
foreclosed by the clear language of the guidelines. Application
Note 1 of the Commentary to § 2K2.1 makes clear that a “felony
conviction” is defined as “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.” (emphasis added). Even if the Superior Court
of New Jersey erroneously concluded that Battle’s 1994 conviction
for possession with intent to distribute qualified as a first
offense under New Jersey’s sentencing scheme, that does not
change the fact that Battle was convicted of an offense
punishable for a term of imprisonment exceeding one year. Cf.
United States v. Battle, 499 F.3d 315, 325-26 (4th Cir. 2007)
(upholding district court’s determination of base offense level
where court failed to assign criminal history points to a prior
conviction when it should have done so).
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plaintiff’s motion under 28 U.S.C. § 2255, and directs the Clerk
to remove the matter from the court’s docket.
Additionally, the court has considered whether to grant a
certificate of appealability.
See 28 U.S.C. § 2253(c).
A
certificate will not be granted unless there is “a substantial
showing of the denial of a constitutional right.”
2253(c)(2).
28 U.S.C. §
The standard is satisfied only upon a showing that
reasonable jurists would find that any assessment of the
constitutional claims by this court is debatable or wrong and
that any dispositive procedural ruling is likewise debatable.
Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v.
McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee, 252 F.3d 676,
683-84 (4th Cir. 2001).
The court concludes that the governing
standard is not satisfied in this instance.
Accordingly, the
court DENIES a certificate of appealability.
The Clerk is directed to send copies of this Memorandum
Opinion and Order to counsel of record and to plaintiff, pro se.
IT IS SO ORDERED this 29th day of March, 2012.
ENTER:
David A. Faber
Senior United States District Judge
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