Opinion
Civil Case No 02 CV 73882, Crim. Case No 00 CR 801U
January 13, 2003
MEMORANDUM AND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255
I. Introduction
This is a habeas case under 28 U.S.C. § 2255. Petitioner Michael Lee Calvin's (Petitioner) plead guilty to bank robbery, in violation of 18 U.S.C. § 2113, and was sentenced to 151 months imprisonment. Before the Court is Petitioner's motion under § 2255, claiming that his sentence violates his constitutional rights. The government filed a response, arguing that Petitioner's claims are defaulted and lack merit. For the reasons which follow, the motion will be denied.
II. Background
On March 2, 2000, Petitioner was charged in an information with (1) attempted bank robbery and (2) bank robbery, in violation of 18 U.S.C. § 2113. On March 20, 2000, Petitioner pled guilty to count 2 of the information under a Rule 11 agreement which identified Petitioner as a career offender under § 4B1.1 with a sentencing range of 151-188 months. The Rule 11 agreement also provided that Petitioner's sentence not exceed 169 months and that the government would move to dismiss count I of the information at sentencing. The Court accepted Petitioner's guilty plea and took the Rule 11 agreement under advisement.
Petitioner's presentence investigation report (PSI) also classified him as a career offender under § 4B1.1. His total offense level was 32 and his criminal history placed him in category VI, producing a sentencing range of 151-169 months. Petitioner did not object to the PSI. Petitioner did, however, file a motion for downward departure on the grounds that Petitioner's criminal history was overstated, that he had continued to work while released on bond, and that his drug addition and depression adversely affected his judgment. At sentencing, count I was dismissed on the government's motion. The Court denied Petitioner's motion for downward departure and sentenced Petitioner to the low end of the guidelines, 151 months. Petitioner appealed to the Court of Appeals for the Sixth Circuit, arguing that (1) Petitioner was not competent and did not knowingly and voluntarily enter his guilty plea, and (2) the Court improperly refused to depart downward from the guidelines range. The Sixth Circuit affirmed Petitioner's conviction and sentence. United States v. Calvin, No. 00-1929 (6th Cir. Sept. 26, 2001) (unpublished).
Before the Court is Petitioner's motion under § 2255. Petitioner argues that his sentence violates the Sixth Amendment, was imposed in excess of the maximum allowed by law, and violated 18 U.S.C. § 3553(b). Essentially, as the government notes, Petitioner claims that his sentence violates the principles of Apprendi v. New Jersey, 530 U.S. 466 (2002) and Ring v. Arizona, 122 S.Ct. 2428 (2002). Petitioner specifically says that he should not have been classified as a career offender and that without this classification, his sentencing range would be 92-115 months.
This section provides in relevant part:
The court shall impose a sentence of the kind, and within the guideline range . . . unless the court finds that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described.
III. Analysis A.
To warrant relief under § 2255, Petitioner must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). Relief is warranted only where there Petitioner has shown "a fundamental defect which results in a complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974). If a Petitioner fails to raise a claim on direct review, he must established both "cause" and "actual prejudice" resulting from the claimed error, United States v. Frady, 456 U.S. 152, 167-68 (1982), or that he is actually innocent. See Bousley v. United States, 523 U.S. 614 (1998).
B.
It is clear that Petitioner is barred from presenting his claims on collateral review because he failed to present them on direct appeal unless he can show cause and prejudice or actual innocence. Petitioner does not argue that he is actually innocent . . . Petitioner does argue that he has established cause because his claims are "novel" in that the Supreme Court cases which he primarily relies upon, were not available at the time of his direct appeal.
Even assuming Petitioner has shown cause, he must also show prejudice. The government argues that Petitioner cannot show prejudice because his claims lack merit. The Court agrees. As to Petitioner's Sixth Amendment claim, which is based on Apprendi and Ring, Apprendi specifically held that any fact, except a prior conviction, which increases the penalty beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt. See 530 U.S. at 490. Ring held that "a sentencing judge cannot, without a jury, make a finding or aggravating circumstances necessary for the imposition of the death penalty." 122 S.Ct. at 2340.
Neither Apprendi or Ring applies to Petitioner because it was his prior convictions which made him a career offender. Petitioner's prior convictions used to classify him as a career offender were sentencing factors that need not be submitted to a jury and proven beyond a reasonable doubt. See United States v. Gatewood, 230 F.3d 186, 192 (6th Cir. 2000). Thus, Petitioner was not deprived of his Sixth Amendment right and his sentence does not violate Apprendi or Ring.
Moreover, Petitioner's sentence did not exceed the statutory maximum allowed by law. The maximum penalty for a violation of 18 U.S.C. § 2113 is 20 years. Petitioner was sentenced to 151 months, well below the statutory maximum.
Additionally, Petitioner's sentence also did not violate § 3553(b). Petitioner's sentencing guidelines range was 151-188 months. Petitioner's 151 month sentence is within that range. Moreover, it was the application of the guidelines which resulted in Petitioner being classified as a career offender. Petitioner was properly classified as a career offender because of his prior convictions. Thus, the Court was acting within the requirements of § 3553(b) when it sentenced Petitioner.
IV. Conclusion
For all the reasons stated above, Petitioner's motion under 28 U.S.C. § 2255 is DENIED. This case is DISMISSED.
SO ORDERED.