Opinion
Case No. 1:04-cr-057 Also 1:14-cv-614
08-01-2014
UNITED STATES OF AMERICA, Plaintiff, v. JAMES ANDRE BLACK, Defendant.
District Judge Sandra S. Beckwith
TRANSFER ORDER
This case is before the Court for initial review of Defendant's Motion to Vacate pursuant to 28 U.S.C. § 2255 (Doc. No. 132). The Motion is before the Court for initial review pursuant to Rule 4(b) of the Rules Governing § 2255 Cases which provides:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States to file an answer, motion, or other response within a fixed time, or take other action the judge may order.The § 2255 Motion has been referred to the undersigned by Chief Judge Dlott (Doc. No. 133).
Section 2255(f) creates a statute of limitations for motions made under that statute, It provides:
(f) A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of—
(1) the date on which the judgment of conviction becomes final;
(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
A federal criminal conviction becomes final on the ninetieth day after the court of appeals decides any appeal because that is the last day on which a petition for writ of certiorari can be filed in the United States Supreme Court. In this case, the Sixth Circuit dismissed Black's appeal December 12, 2007 (United States v. Black, Case No. 07-3240, (6th Cir. 2007)(unpublished, copy at Doc. No. 114). Black's time to file a petition for certiorari expired March 11, 2008. Therefore the time for filing a § 2255 Motion expired March 10, 2009, unless Black's case comes within § 2255(f)(2), (3), or (4).
Black claims his instant Motion comes within § 2255(f)(3) in that he is asserting a right newly recognized by the United States Supreme Court and made retroactively applicable to cases on collateral review.
Black pleads the following grounds for relief:
Ground One: Attorney Jonathan P. Dameron was ineffective for failing to challenge the use of his [Black's] prior convictions under California H&S Code § 11352 as predicate offenses under the Armed Career Criminal Act.(Motion, Doc. No. 132, PageID 622-25.)
Supporting Facts: Counsel was ineffective were [sic] Movant Black suffered ineffective counsel fourfold, to wit: at pre-trial, at plea colloquy Rule 11 hearing, again at sentencing and at plea agreement failed to object and show trial court how prior California Convictions Health & Safety Code, with assigned Case Number(s) VA-011131 and BA-277075 does not qualify as a predicate offense under the Armed Career Criminal Act. In addition, the prior California state convictions plea agreement statement attributed to Movant in the "amended charge" plea agreement could not constitute as clear and unequivocal proof that Movant Black had in fact pleaded guilty to or been convicted of all the "elements" of a qualifying enhancement under USSG § 4B1.1(a) career offender predicate offenses, and to rely on the statements alone would violate United States Supreme Court precedent and Ninth Circuit precedents ruling in 2004 and 2009 respectively. In these circumstances, Counsel's failure to object to these errors mentioned above fell "below an objective standard of reasonableness."
Ground Two: Ineffective Assistance of Counsel: defense counsel Dameron failed to object to the late filing of the "Notice of Enhancement" under 18 U.S.C. § 851.
Supporting Facts: Movant received an enhanced sentence under 18 U.S.C. § 851 errorneously [sic] where Government did not file and serve Movant and Counsel the "Notice of Enhancement" within the time allowed by law, thereby, defense counsel failed to object or suppress this 'NOTICE OF ENHANCEMENT' which was illegally filed at sentencing, wherefore violating Movant's Due process clause guaranteed under the Fifth Amendment.
Ground Three: Ineffective Assistance of counsel: defense counsel Dameron failed to object to the errorneous [sic]
application of the career-offender provisions of the U.S. Sentencing Guidelines.
Supporting Facts: Movant received an errorneous [sic] application of the career-offender provisions of the U.S. Sentencing Guidelines and was sentenced to "300 months" qualifys [sic] as "a fundamental miscarriage of justice" that can be corrected on collateral review due to Counsel's failure to object to this error fell "below an objective standard of reasonableness." And also movant failed to file his collateral challenge within the one-year deadline for motions under 28 U,S.C. § 2255 based on an incorrect application of the career offender enhancement at sentence in 2007, where at that time and before his sentence, Ninth Circuit has [sic] already held in Kovac 2004 that "A generic conviction under California Health & Safety Code § 11352 does not qualify as a predicate conviction under the career offender U.S. Sentencing Guidelines Manual. See attached circuit rulings. (Misapplying Enhancement is unjust.)
Although statute of limitations issues can be raised sua sponte, this Court cannot decide the timeliness of the Motion, because this is a second or successive § 2255 motion and has been filed here without permission of the Sixth Circuit Court of Appeals. Absent that permission, this Court lacks jurisdiction to decide the Motion altogether. Burton v. Stewart, 549 U.S. 147 (2007).
Whether or not the Supreme Court's decision in Descamps v. United States, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), creates a right which is retroactively applicable on collateral review and thus brings Black's Motion within 28 U.S.C. § 2255(f)(3) does not determine whether he requires circuit court permission to file the motion. § 2255(h) still requires consideration and permission by the court of appeals. Indeed, what the circuit court must certify is that the motion contains "(2) [a claim based on] a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable."
The instant § 2255 Motion is plainly a second or successive such motion. On February 7, 2011, Black filed a Petition to Void Judgement [sic] Pursuant to Fed. R. P. 60(b)(4)(Doc. No. 123). Construing that filing as a § 2255 Motion, Judge Beckwith denied it (Doc. Nos. 124, 125) and the Sixth Circuit affirmed, treating the motion as made under § 2255 as Judge Beckwith had done. Black v. United States, Case No. 11-3365 (6th Cir. Sept. 28, 2011)(unpublished; copy at Doc. No. 129).
Black himself has acknowledged his need to obtain a certificate of appealability by applying for one to the Sixth Circuit. However, the Circuit denied that permission, specifically addressing Black's claim under Descamps, supra. The court wrote:
Black first claims that his attorney was ineffective for failing to challenge the use of his prior convictions under California Health & Safety Code § 11352 as predicate offenses under the Armed Career Criminal Act. He asserts that this claim relies on a new rule of constitutional law, citing Descamps v. United States, 133 S. Ct. 2276 (2013). Therein, the Supreme Court held that, in determining whether a prior conviction qualifies as a predicate offense under the Armed Career Criminal Act, "sentencing courts may not apply the modified categorical approach when the crime of which the defendant was convicted has a single, indivisible set of elements." Descamps, 133 S. Ct. at 2282. Descamps did not announce a new rule of constitutional law. Id. at 2281-82. Nor was the holding made retroactive to cases on collateral review. See Tyler v. Cain, 533 U.S. 656, 663 (2001).In re James Andrew Black, Case No. 13-4383 (6th Cir, Jun. 13, 2014)(unpublished, copy at Doc. No. 131, PageID 616). Whether this prior ruling has res judicata effect is a question the circuit court must decide.
It is accordingly ORDERED, pursuant to 28 U.S.C. § 1631, that the Clerk TRANSFER this case to the United States Court of Appeals for the Sixth Circuit for that court's determination of whether Black shall be granted permission to proceed.
Aug 1 2014 8:33 AM /s/_________
Michael R. Merz