Opinion
01 Civ. 1182 (RPP); 97 Cr. 295 (RPP)
July 30, 2001
Arthur Danielson pro se.
Daniel R. Margolis, Assistant U.S. Attorney, Mary Jo White, United States Attorney for Respondent.
OPINION AND ORDER
Petitioner Arthur Danielson moves, pro se, pursuant to Title 28, United States Code, Section 2255 to correct his sentence imposed for his conviction under Title 18, United States Code, Section 922(g)(1) on the grounds that his sentence was improperly enhanced under Title 18, United States Code, Section 924(e). Petitioner alleges that one of the three prior state violent felony convictions utilized in enhancing his sentence was constitutionally defective. For the reasons that follow, the motion is denied.
Background
On June 3, 1997, Petitioner was convicted after a trial by jury upon a charge of possession of ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). The base penalty for a violation of § 922(g)(1) is a term of imprisonment of "not more than 10 years." 18 U.S.C. § 924(a)(2). However, the Armed Career Criminal Act of 1984 ("ACCA"), 18 U.S.C. § 924(e), created an enhancement for persons convicted of violating § 922(g) who also have "three previous convictions . . . for a violent felony or a serious drug offense." 18 U.S.C. § 924(e)(1). Section 924(e)(1) mandates that individuals who qualify for the enhancement be sentenced to a minimum term of imprisonment of fifteen years. Id. The Court determined that Petitioner had a criminal history which included three violent felonies and therefore was subject to the enhancement of the ACCA. He was sentenced on October 9, 1998 to, inter alia, 180 months imprisonment, the mandatory minimum under the ACCA. Petitioner appealed his conviction and sentence, claiming that the court allowed a constructive amendment of the charges against him and that the court improperly counted his 1982 state felony conviction for weapons possession in the second degree ("1982 conviction") as a "violent felony" as defined for the purposes of sentence enhancement under the ACCA. The Second Circuit rejected both of these claims and affirmed Petitioner's conviction and sentence. See United States v. Danielson, 199 F.3d 666 (2d Cir. 1999).
This Court determined at sentencing that Petitioner's 1967 conviction for burglary in the third degree, his 1971 conviction for attempted robbery in the third degree, and his 1982 conviction for criminal possession of a weapon in the second degree were violent felony convictions and satisfied the enhancement requirements under the ACCA.
Now at issue before this Court is Petitioner's January 10, 2001 motion to correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner alleges that his 1982 state felony conviction was constitutionally defective. Specifically, Petitioner claims that he was deprived of his Fourteenth Amendment due process rights because the prosecution for the trial culminating in the 1982 conviction failed to demonstrate all the necessary elements of the crime beyond a reasonable doubt. Petitioner also alleges that the prosecution withheld exculpatory evidence in violation of the standard set forth in Brady v. Maryland, 373 U.S. 83(1963). Petitioner argues that, since this allegedly defective 1982 conviction was used to enhance his sentence pursuant to the ACCA, the instant sentence should be vacated and Petitioner should be re-sentenced on the ammunition possession charge without the ACCA enhancement. By letter dated February 16, 2001, the Government opposes Petitioner's motion and argues that, as a matter of law, Petitioner may not challenge a prior state court conviction used to enhance statutory penalties imposed under the ACCA in a § 2255 motion. Petitioner submitted replies dated March 2 and June 26, 2001. The Government submitted additional papers on July 16, 2001.
Discussion
The question currently before this Court is whether Petitioner can use a § 2255 motion to challenge a prior conviction used to enhance a sentence imposed under the ACCA. Title 28, United States Code, Section 2255 provides in pertinent part that "[a] prisoner in custody under sentence of a [federal] court . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence" upon the ground 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." Petitioner asserts that his current federal sentence is subject to attack under § 2255 because it was based, in part, on his allegedly unconstitutional 1982 conviction. In so arguing, Petitioner seeks to challenge the imposition of the enhanced sentence by collaterally attacking the constitutionality of a prior conviction supporting it.
I. Standard
In Custis v. United States, 511 U.S. 485(1994), the Supreme Court considered whether a defendant facing a sentence enhancement under the ACCA could, at the sentencing stage, challenge the constitutionality of a prior conviction used for enhancement. The Court found that, "[the ACCA] does not permit [defendants] to use the federal sentencing forum to gain review of [prior] state convictions" used to enhance a sentence. Id. at 497. The defendant alleged that two of his prior state convictions were unconstitutional because he received ineffective assistance of counsel, inadequate advising of his rights, and because a guilty plea in one of the convictions was not knowing and intelligent. Id. at 488. After interpreting the language of the ACCA and considering the interests of efficient judicial administration and the need for finality of judgments, the Court held that, for the purpose of counting prior convictions for sentence enhancement "[t]he [ACCA] focuses on the fact of the conviction and nothing suggests that the prior final conviction may be subject to collateral attack for potential constitutional errors. . . ." Id. at 490-91. However, Curtis did carve out a small exception that allows for the collateral attack of prior convictions on the grounds of a violation of the right to counsel as established inGideon v. Wainwright, 372 U.S. 335 (1963). See Custis, 511 U.S. at 493-96. In doing so, the Court recognized that there exists "a historical basis in our jurisprudence of collateral attacks for treating the right to have counsel appointed as unique. . . ."Id. at 494.
The recent Supreme Court decision in Daniels v. United States, 532 U.S. ___, 121 S.Ct. 1578(2001), extended the Court's holding in Custis beyond the scope of sentencing proceedings and applied it to § 2255 motions as well. Daniels was convicted of being a felon in possession of firearm in violation of 18 U.S.C. § 922(g)(1) and had his sentence enhanced under the ACCA. After an unsuccessful appeal, Daniels filed a § 2255 motion alleging that two of his prior convictions used to enhance his sentence were unconstitutional on the grounds of ineffective assistance of counsel and guilty pleas that were not knowing or intelligent. See Daniels, 532 U.S. at ___, 121 S.Ct. at 1581. Finding that the considerations of efficient judicial administration and the need for finality of judgments established by the Court in Custis applied in a § 2255 context as well, the Court held that a petitioner is generally barred from using § 2255 to bring collateral attacks against prior convictions used in sentencing under the ACCA upon any grounds other than a violation of Gideon rights. Id. at 1580-82. Daniels also recognized that "there may be rare cases in which no channel of review was actually available to a defendant . . . due to no fault of his own," and raised the possibility that a § 2255 motion might be used to review a prior conviction in those "rare cases". Id. at 1584 (plurality). However, since no such rare circumstances were alleged in Daniels, the Court did not provide insight into what sort of situation might warrant such an exception.
II. Application
As established by Custis and Daniels, in a § 2255 motion this Court may only consider a collateral attack on a prior state conviction used to enhance a sentence under the ACCA in three situations: (1) where thefact of conviction is disputed; (2) where a Gideon violation is alleged; and (3) where rare circumstances have prevented the petitioner from receiving review "on direct appeal, in postconviction proceedings available under state law, and in a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254." Id., at 1582-83. Petitioner fails to properly base his § 2255 motion on any of these grounds. First, Petitioner does not claim that he was not convicted of the 1982 felony offense. Instead, he alleges that his 1982 conviction was unconstitutional because of insufficient evidence and a Brady violation. Under Custis however, the ACCA only requires for the purposes of sentence enhancement that the defendant be convicted of a qualifying felony. See Custis, 511 U.S. at 490-91. Second, Petitioner does not claim, and the evidence does not suggest, that the 1982 conviction was obtained in violation of his Gideon rights. Finally, although Petitioner alleges that rare circumstances exist in his case, he does not support this allegation with anything other than his original allegation that his 1982 conviction was obtained in violation of his Fourteenth Amendment due process rights. (Pet'r Reply Br. of 6/26/01, at 1.) Although the Supreme Court did not indicate with any specificity what situations might qualify as having rare circumstances, it is clear that, in acknowledging the possible exception, they sought to protect petitioners for whom "no channel of review was actually available. . . ." Daniels, 532 U.S. at ___, 121 S.Ct. at 1584. Since Petitioner makes no allegation that he was prevented from challenging his 1982 conviction, his situation cannot be considered to include the sort of rare circumstances contemplated inDaniels.
Petitioner argues that the Supreme Court's decision in Taylor v. United States, 495 U.S. 575(1990), compels this Court to inquire into the constitutionality of his 1982 conviction. (Pet'r Br. of 1/10/01, at 1; Pet'r Reply Br. of 3/2/01, at 2.) However, Petitioner's interpretation ofTaylor is mistaken. In Taylor, the Court considered whether a defendant's prior Missouri burglary convictions qualified as "burglary" under the ACCA for the purposes of sentence enhancement. Conversely, Petitioner is requesting that this Court consider whether a state conviction is valid, not whether it qualifies as a "violent felony" under the ACCA as inTaylor. Furthermore, Taylor is consistent with Custis and Daniels in that it interprets the ACCA's applicability as depending on only whether a defendant was convicted of the qualifying offenses, not whether the defendant actually committed those offenses. See Taylor, 495 U.S. at 600 ("Section 924(e)(1) refers to `a person who . . . has three previous convictions' for — not a person who has committed — three previous violent felonies or drug offenses." (emphasis added)).
Prior to sentencing and on direct appeal, Petitioner argued that his 1982 conviction did not qualify as a "violent felony" under the ACCA. See United States v. Danielson, 199 F.3d 666 (2d Cir. 1999). Petitioner lost his appeal on the merits, and as a result, is procedurally barred from raising that issue again. See United States v. Perez, 129 F.3d 255, 260 (2d Cir. 1997) ("A § 2255 motion may not relitigate issues that were raised and considered on direct appeal.").
The proper avenues for Petitioner to have brought the challenges he is currently attempting to advance against his 1982 conviction would have been state procedures for review of criminal convictions and federal habeas procedures under 28 U.S.C. § 2254. See Daniels, 532 U.S. at ___, 121 S.Ct. at 1582-83. In all probability, these procedures are no longer available and a denial of this motion will leave Petitioner with no further recourse to challenge his 1982 conviction. In Daniels, the Court recognized that procedures for review of the constitutionality of convictions "are not available indefinitely and without limitation" and denied Daniels an opportunity to challenge his prior convictions. Id. at 1583. The Supreme Court made it clear that a petitioner who does not claim that (1) he was not in fact convicted, (2) he was deprived of hisGideon rights, or (3) rare circumstances have prevented his claim from being heard in the appropriate forum in a timely fashion, cannot use a § 2255 motion to collaterally attack a prior conviction even if this leaves him without further recourse. See id. at 1583-84.
Conclusion
For the above reasons, Petitioner is barred, as a matter of law, from using 28 U.S.C. § 2255 to mount a collateral attack on his 1982 conviction used to enhance his sentence under the ACCA. Accordingly, it is not necessary to consider Petitioner's arguments concerning the constitutionality of his 1982 conviction or the suitability of Petitioner's other convictions for sentence enhancement. Petitioner's motion is denied.
IT IS SO ORDERED.