Opinion
7:14-CR-19-1-FL 7:23-CV-01069-FL
01-10-2024
ANTONIO BRADLEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
BRIAN S. MEYERS, UNITED STATES MAGISTRATE JUDGE
This matter is before the court on petitioner Antonio Bradley's (“petitioner” or “Bradley”) motions to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [D.E. 67; 68] (collectively “§ 2255 motions”). The matter is also before the court on respondent's motion to dismiss [D.E. 72]. Petitioner responded in opposition to the motion to dismiss [D.E. 75], and responsive briefing is complete. The motions were referred to the undersigned magistrate judge for a memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1). For the reasons stated below, the undersigned recommends that respondent's motion to dismiss [D.E. 72] be allowed and petitioner's § 2255 motions [D.E. 67; 68] be denied.
Petitioner's two § 2255 motions, [D.E. 67] and [D.E. 68], appear to be copies and identical to one another.
I. BACKGROUND
On August 12, 2014, petitioner pleaded guilty, pursuant to a written plea agreement, to possession with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 841(a)(2) (count two); and possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c) (count three).
Prior to sentencing, the United States Probation Office filed a presentence investigation report (“PSR”) determining petitioner's advisory sentencing guideline range to be 262 to 327 months' imprisonment, based upon on a total offense level of 29 and a criminal history category of VI. Final PSR [D.E. 30] ¶47; Sentencing Transcript (Tr.) [D.E. 47] at 3. The PSR determined that petitioner had at least two prior felony convictions of either a crime of violence or a controlled substance offense, including assaults with a deadly weapon on two separate occasions in 1999. Final PSR [D.E. 30] ¶41; Tr. [D.E. 47] at 3.
On March 2, 2015, the court sentenced petitioner to 202 months' imprisonment on count two and 60 months' imprisonment on count three, to be served consecutively, for a total of 262 months' imprisonment, as well as three years' supervised release on count two and five years' supervised release on count three, to run concurrently. Judgment [D.E. 40] at 4. Petitioner appealed his judgment of conviction. [D.E. 42]. The United States moved to dismiss this appeal based upon the appellate waiver provision of petitioner's plea agreement, and the Fourth Circuit Court of Appeals granted the government's motion, dismissing the appeal. [D.E. 48; 49].
On June 27, 2016, the petitioner filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [D.E. 52]. On August 1, 2016, the government's unopposed motion to stay the § 2255 proceeding was granted [D.E. 57], and the matter was placed in abeyance pending the final decision of the United States Supreme Court in Beckles v. United States, 137 S.Ct. 886 (2017). On March 10, 2017, the petitioner filed a notice of voluntary dismissal of his motion to vacate, “[p]ursuant to Fed.R.Civ.P. 41(a), and in light of the Supreme Court's decision in Beckles v. United States . . . .” [D.E. 58] at 1.
In his instant § 2255 motions [D.E. 67; 68] filed on June 12, 2023, petitioner asserts one claim, alleging that in light of the United States Supreme Court's ruling in United States v. Taylor, 142 S.Ct. 2015, 2016, 213 L.Ed.2d 349 (2022), he was improperly sentenced as a career offender and should be resentenced without the career offender enhancement. Pet'r's Motion [D.E. 68] at 4.
Petitioner makes superficial references to various other arguments throughout his filings. See [D.E. 68] at 2 (alleging that the discussion of his criminal history did not adequately consider the fact that he abandoned his affiliation with his former gang); [D.E. 75] at 1-2 (arguing that as he did not take his firearm to the drug deal that is the subject of his offense, count three of his indictment, possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c), was improper. However, petitioner does not list these or any other arguments as independent grounds for relief in his § 2255 motions. See [D.E. 67; 68]; see also Padilla-Ruiz v. Commc'n Techs., Inc., 793 Fed.Appx. 200, (Mem)-201 (4th Cir. 2020) (“A party waives an argument by . . . failing to develop its argument-even if its brief takes a passing shot at the issue.”) (quoting Grayson O Co. v. Agadir Int'l LLC, 856 F.3d 307, 316 (4th Cir. 2017)).
On July 24, 2023, respondent moved to dismiss the petition [D.E. 72]. Respondent argues that petitioner's § 2255 claim should be dismissed: (1) pursuant to Federal Rule of Civil Procedure 12(b)(1), because the court lacks subject matter jurisdiction as the petitioner filed this second or successive motion to vacate without pre-filing authorization from the Fourth Circuit Court of Appeals; or, alternatively, (2) pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See [D.E. 73]. Petitioner filed a response in opposition. [D.E. 75].
II. STANDARD OF REVIEW
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show 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.” 28 U.S.C. § 2255(a). “Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto.” 28 U.S.C. § 2255(b). “The Federal Rules of Civil Procedure and the Federal Rules of Criminal Procedure, to the extent that they are not inconsistent with any statutory provisions, or the [§ 2255 Rules], may be applied to” § 2255 proceedings. Rules Governing Section 2255 Proceedings, Rule 12.
Rule 12(b)(1) provides for dismissal of an action if the court lacks subject matter jurisdiction over it. Fed.R.Civ.P. 12(b)(1). The party seeking relief bears the burden of showing federal jurisdiction on a Rule 12(b)(1) motion. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); Bio-Medical Applications of N.C, Inc. v. Elec. Data Sys. Corp., 412 F.Supp.2d 549, 551 (E.D. N.C. 2006).
A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the § 2255 petition but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir. 1992). The petition states a claim if it contains “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In evaluating the petition, “[the] court accepts all well pled facts as true and construes these facts in the light most favorable to the [petitioner],” but does not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009). In reviewing a motion to dismiss a § 2255 petition, the court may consider the “files and records of the case” without converting the motion into one for summary judgment. 28 U.S.C. § 2255(b); Philips v. Pitt Cnty. Mem'l Hosp., 572 F.3d 176, 180 (4th Cir. 2009) (explaining court may “properly take judicial notice of matters of public record” when deciding Rule 12(b)(6) motion).
III. ANALYSIS
As noted above, petitioner effectively brings one claim in his § 2255 motions, namely that he was improperly sentenced as a career offender in light of the ruling of the United States Supreme Court in Taylor, 142 S.Ct. 2015. Pet'r's Motion [D.E. 68] at 4. Respondent argues that petitioner's § 2255 claims should be dismissed: (1) pursuant to Federal Rule of Civil Procedure 12(b)(1), because the court lacks subject matter jurisdiction as the petitioner filed this second or successive motion to vacate without pre-filing authorization from the Fourth Circuit Court of Appeals; or, alternatively, (2) because petitioner's challenge is not cognizable under 28 U.S.C. § 2255. [D.E. 73].
For the reasons stated below, it is recommended that petitioner's § 2255 motions be dismissed because petitioner filed this second or successive motion to vacate without pre-filing authorization from the Fourth Circuit Court of Appeals. Alternatively, for the reasons stated below, it is recommended that petitioner's § 2255 motions be dismissed because the claim is not cognizable on collateral review.
1. Need for pre-filing authorization from Fourth Circuit Court of Appeals for second motion to vacate
“Pursuant to 28 U.S.C. § 2244(b)(3)(A), ‘[b]efore a second or successive [§ 2255] application . . . is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.'” United States v. Ciampa, No. 5:14-CR-197-FL-1, 2023 WL 1110295, at *2 (E.D. N.C. Jan. 30, 2023) (quoting 28 U.S.C. § 2244(b)(3)(A)). “In the absence of such authorization, the court lacks jurisdiction to consider the motion.” Id. (citing United States v. Winestock, 340 F.3d 200, 205-06 (4th Cir. 2003), abrogated in part on other grounds). When, however, “§ 2255 proceedings were voluntarily dismissed without prejudice, petitioner does not need court authorization to file a new § 2255 motion.” United States v. Valencia-Adata, No. 5:08-CR-75-FL-1, 2023 WL 1110291, at *1 (E.D. N.C. Jan. 30, 2023) (citing Slack v. McDaniel, 529 U.S. 473, 485-86 (2000)).
Respondent cites to case law from other circuits to support the principle that when “a prisoner expressly dismisses a first-in-time habeas petition because the petition was doomed to fail or the circumstances shows dismissal was inevitable, the first-in-time dismissed petition counts and a second or successive habeas petition must comply with § 2255(h) pre-filing authorization requirement.” Mem. Supp. Mot. Dismiss [D.E. 73] at 7-10; see Potts v. United States, 210 F.3d 770, 770-71 (7th Cir. 2000) (holding where a prisoner was represented by counsel, and it was apparent based on the government's brief in opposition that the prisoner's habeas petition would fail on the merits, the prisoner's voluntary dismissal did not prevent the court from considering the dismissed petition as a first habeas petition); United States v. Raymond, 815 Fed.Appx. 144 (9th Cir. 2020) (unpublished) (holding where a prisoner, represented by counsel, withdrew his first habeas petition when the only argument in that motion was undermined by the United States Supreme Court's holding in Beckles, 137 S.Ct. 886, which was published during the pendency of his motion, and where petitioner offered no alternative basis for dismissing his motion, the dismissal of his first § 2255 motion was “functionally equivalent to an adjudication of the merits”); United States v. Rejda, 790 Fed.Appx. 900 (10th Cir. 2019) (unpublished) (finding where a prisoner, represented by counsel, withdrew his first habeas petition when the position taken in that motion was undermined by the United States Supreme Court's holding in Beckles, 137 S.Ct. 886, which was published during the pendency of his motion, the prisoner had clearly dismissed his first § 2255 motion “seeing the handwriting on the wall,” and the court lacked jurisdiction over his second or successive § 2255 motion, which did not have a pre-filing authorization) (quoting Potts, 210 F.3d at 771).
Here, on June 27, 2016, petitioner, represented by counsel, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. [D.E. 52]. Petitioner argued that:
[his] prior North Carolina convictions for assault and discharging a weapon into occupied property do not categorically qualify as “crimes of violence” after the decision in Johnson v. United States, 135 S.Ct. 2551 (2015) and in light of the Fourth Circuit's decisions in United States v. Vinson, 805 F.3d 120 (4th Cir. 2015) (assault) and United States v. Parral-Dominguez, 794 F.3d 440 (4th Cir. 2015) (discharge of a firearm). Mr. Bradley does not have any prior felony convictions for a “crime of violence” and has only one prior felony conviction for a controlled substance offense. Therefore, he was unlawfully designated a career offender on the basis of convictions that do not categorically qualify as crimes of violence.
[D.E. 52] at 4.
On August 1, 2016, the government's unopposed motion to stay the § 2255 proceeding was granted [D.E. 57], and the matter was placed in abeyance pending the final decision of the United States Supreme Court in Beckles, 137 S.Ct. 886. As discussed in more detail below, the Supreme Court “subsequently held that Johnson does not apply to the residual clause in the career offender guideline because ‘the Guidelines are not amenable to a vagueness challenge.'” Modisette v. United States, No. 7:07-CR-69-FL-1/No. 7:12-CV-61-FL at 9 (E.D. N.C. Jan. 31, 2020) (citing to Beckles, 137 S.Ct. at 894). On March 10, 2017, the petitioner filed a notice of voluntary dismissal of his motion to vacate, “[p]ursuant to Fed.R.Civ.P. 41(a), and in light of the Supreme Court's decision in Beckles v. United States . . . .” [D.E. 58] at 1.
The undersigned finds that the reasoning provided in Raymond and Rejda applies here. Because the petitioner, who was represented by counsel, voluntarily dismissed his first habeas petition in light of the United States Supreme Court's decision in Beckles, 137 S.Ct. 886, it “was functionally equivalent to an adjudication of the merits.” Raymond, 815 Fed.Appx. at 147. The record of this case does not indicate that petitioner sought the appropriate pre-filing authorization before filing the instant motions. It is, therefore, recommended, that petitioner's § 2255 motions [D.E. 67; 68] be dismissed for lack of jurisdiction, as the petition is a second or successive motion to vacate without a pre-filing authorization from the Fourth Circuit Court of Appeals.
Nonetheless, even if petitioner's instant § 2255 motions did not require pre-filing authorization, the undersigned recommends that petitioner's claim be dismissed because the claim is not cognizable on collateral review, as discussed below.
2. Petitioner's guideline-based claim is not cognizable on collateral review.
Petitioner contends that his career offender designation at sentencing, predicated upon his prior felony convictions of crimes of violence, was improper under Taylor and related cases. Petitioner argues as follows:
Taylor, Davis, Johnson, Mathis, Borden
While Petitioner does not discuss Mathis in his filings, this case is inapplicable as (1) it was decided on direct appeal, unlike the scenario here, and (2) it did not address whether a challenge to a career offender designation would be cognizable on collateral review. Mathis v. United States, 136 S.Ct. 2243, 2250 (2016).
[Taylor, 142 S.Ct. 2015] is alive and retroactive until the 20th of June. No attempt charge could be tied to 924(c). I had Attempted Murder that got dropped to Intent to Kill, which is the same language. The two predicated they used to career me is Intent to kill and Assault with a Deadly Weapon, firing into Occupied vehicle, which isn't violent no more due to Johnson. Even tho[ugh] I'm no ACC I'm Career offender. Davis asked for Johnson predicates to apply to Career offenders also. Even tho[ugh] they never answered him I'm giving you an outlook on how this 924(c) charge is enhancing peoples time. That's why I including [sic] everybody's cases up there. I definitely have a Taylor issue.
Pet.'s § 2255 motion [D.E. 68] at 4.
Petitioner was sentenced as a career offender pursuant to U.S.S.G. § 4B1.1, and as a result he faced an advisory sentencing guideline range of 262 to 327 months imprisonment, based upon on a total offense level of 29 and a criminal history category of VI. Final PSR [D.E. 30] ¶47. The Sentencing Guidelines provide that the career offender enhancement applies when:
(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
USSG § 4B1.1. Petitioner was sentenced as a career offender because he was at least eighteen years old at the time of the offense; the instant offense of conviction was possession with intent to distribute a quantity of heroin, a controlled substance offense; and he has at least two prior felony convictions that are either a crime of violence or a controlled substance offense, specifically his October 25, 1999 conviction for assault with deadly weapon with intent to kill, and his November 1, 2000 convictions for assault with deadly weapon inflicting serious injury and discharging a weapon into occupied dwelling. Final PSR [D.E. 30] ¶¶13, 14, 41.
In evaluating whether a claim is cognizable in a § 2255 petition, a court must determine “whether the claimed error of law was ‘a fundamental defect which inherently results in a complete miscarriage of justice,' and whether ‘it ... present(s) exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'” Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).
As respondent correctly notes in its motion to dismiss, petitioner cannot use § 2255 to retroactively challenge his advisory guideline range. See, e.g., United States v. Foote, 784 F.3d 931, 935-36 (4th Cir. 2015) (“[Sentencing a defendant pursuant to advisory Guidelines based on a career offender status that is later invalidated does not meet [the] remarkably high bar [for showing the required fundamental defect in the sentencing]”); United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) (“Barring extraordinary circumstances . . . an error in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding.”).
Because the Guidelines are advisory and lack “legal force,” the Fourth Circuit has found that it “would be remiss to place an erroneous Guidelines classification under an advisory scheme in the same category as violation of a statute or constitutional provision,” when the petitioner's sentence does not exceed the statutory maximum. Foote at 942-43 (citations omitted). The court's sentence of 202 months' imprisonment on count two and 60 months' imprisonment on count three does not exceed the statutory maximums. See 21 U.S.C. § 841(b)(1)(C) (setting a maximum of 20 years imprisonment for possession with intent to distribute a quantity of heroin); 18 U.S.C. § 924(c)(1)(A)(i) (setting a minimum sentence of five years, consecutive to any other term of imprisonment, for possession of a firearm in furtherance of a drug trafficking crime); see also Final PSR [D.E. 30] at (listing the minimum and maximum statutory sentence, as relevant, for count two and count three of petitioner's indictment).
Additionally, petitioner does not allege that he is actually innocent of the underlying offenses. See Foote, 784 F.3d at 940-41 (“[T]he miscarriage of justice exception in this context has historically been ‘tied . . . to the petitioner's innocence.'”) (quoting Schlup v. Delo, 513 U.S. 298, 321115 S.Ct. 851, 130 L.Ed.2d 808 (1995)).
The cases to which petitioner cites do not change this analysis. As this court has previously summarized:
In Johnson, the United States Supreme Court held that increasing a defendant's sentence based on the residual clause contained in 18 U.S.C. § 924(e)(2)(B)(ii) violates due process because the provision is unconstitutionally vague. 135 S.Ct. at 2560, 2563. However, the Court subsequently held that Johnson does not apply
to the residual clause in the career offender guideline because “the Guidelines are not amenable to a vagueness challenge.” See Beckles v. United States, 137 S.Ct. 886, 894 (2017); see also United States v. Brown, 868 F.3d 297, 302 (4th Cir. 2017) (noting “Beckles specifically held that Johnson failed to invalidate the advisory Sentencing Guidelines' former definition of crime of violence” (internal quotation omitted)).Modisette v. United States, No. 7:07-CR-69-FL-1/No. 7:12-CV-61-FL at 9 (E.D. N.C. Jan. 31, 2020).
The Supreme Court held in United States v. Davis that § 924(c)(3)(B) is unconstitutionally vague, thereby rendering invalid § 924(c) convictions based on the residual clause definition of crime of violence. 139 S.Ct. 2319, 2336 (2019). However, here, petitioner's § 924(c) count three charge was predicated on a drug trafficking crime, not a crime of violence. See Judgment [D.E. 40] at 2. As discussed above, any errors in the corresponding language in the sentencing guidelines remain insufficient to support a § 2255 challenge. See Foote, 784 F.3d at 935-36.
The advent of Taylor also does not advance petitioner's argument here. The Supreme Court in Taylor held that an attempted Hobbs Act robbery does not represent a “crime of violence” under 18 U.S.C. § 924(c) because no element of the offense requires proof that the defendant used, attempted to use, or threatened to use force. Taylor, 142 S.Ct. at 2021. Taylor and the other cases petitioner cites in his motion were not decided in the context of challenges to the sentencing guidelines. Moreover, here, unlike Taylor, petitioner's 924(c) charge was not predicated on an attempted criminal offense. Furthermore, Taylor was decided under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. 924(e). The ACCA and the Sentencing Guidelines had the same definition of a “crime of violence,” to include ‘‘any offense under federal or state law, punishable by imprisonment for a term exceeding one year that . . . otherwise involves conduct that presents a serious potential risk of physical injury to another.” See Beckles, 137 S.Ct. at 890-91 (citing Sentencing Guidelines § 4B 1.2(a); 18 U.S.C. § 924(e)(2)(B)). However, Beckles and Foote preclude any finding that the advisory guidelines are invalid based on the use of this definition.
For the reasons stated above, it is recommended that the government's motion to dismiss be allowed because petitioner's claim is not cognizable on collateral review.
IV. CONCLUSION
For the reasons stated above, IT IS RECOMMENDED that respondent's motion to dismiss [D.E. 72] be ALLOWED and petitioner's § 2255 motions [D.E. 67; 68] be DENIED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until January 25, 2024, to file written objections to this Memorandum and Recommendation. The presiding district judge must conduct her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).