Opinion
5:19-CR-241-1FL 5:22-CV-488-FL
10-04-2023
FRANK ROOSEVELT GIGGETTS, JR., Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM & RECOMMENDATION
KIMBERLY A. SWANK, UNITED STATES MAGISTRATE JUDGE.
This matter is before the court for consideration of Petitioner's 28 U.S.C. § 2255 motion to vacate [DE #84]. The Government has moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to state a claim upon which relief can be granted [DE #88]. Petitioner has responded in opposition to the Government [DE #91], and the Government has replied [DE #92]. This matter has been referred to the undersigned for memorandum and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and the Rules Governing Section 2255 Proceedings. For the reasons explained below, the undersigned recommends that the Government's motion to dismiss be granted.
BACKGROUND
On June 12, 2019, Petitioner was charged in a five-count indictment. (Indictment [DE #1].) Counts One and Two charged distribution of a quantity of crack cocaine in violation of 21 U.S.C. § 841(a)(1); Count Three charged distribution of a quantity of crack cocaine and marijuana in violation of 21 U.S.C. § 841(a)(1); and Counts Four and Five charged possession with the intent to distribute a quantity of crack cocaine in violation of 21 U.S.C. § 841(a)(1). (Id.)
Petitioner pleaded guilty, without a plea agreement, to each count on February 5, 2020. (Minute Entry Feb. 5, 2020, Arraignment [DE #24]; Arraignment Tr. [DE #77].)
The United States Probation Office prepared a draft Presentence Report (PSR) on March 12, 2020, to which Petitioner, through counsel, responded without objection. (Draft PSR [DE #27]; Pet'r's Draft PSR Objs. [DE #32].) The Probation Office docketed a final PSR on August 31, 2020 (Final PSR [DE #35]), to which Petitioner, through counsel, objected (Pet'r's Final PSR Objs. [DE #58]). The Probation Office docketed an amended final PSR on September 3, 2021. (Am. Final PSR [DE #61]). Petitioner's objection to the final PSR had no impact on the Guidelines calculation.(Pet'r's Final PSR Objs.; Am. Final PSR at 20.) In calculating Petitioner's offense level, the Probation Office applied the career offender guideline, U.S.S.G. § 4B1.1(b)(3), based on Petitioner's prior North Carolina convictions for Possession with Intent to Sell or Deliver Cocaine, Possession with Intent to Sell or Deliver Marijuana, and Possession with Intent to Sell or Deliver a Schedule I Controlled Substance. (Am. Final PSR at 17 ¶ 85 (applying the career offender guideline and identifying the predicate offenses).) Application of the career offender guideline doubled Petitioner's offense level, resulting in a guidelines imprisonment range of 151 to 188 months' imprisonment. (Id. at 17 ¶¶ 84, 85, 90.)
Petitioner, through counsel, withdrew this objection at sentencing. (Sentencing Tr. [DE #76] at 3.)
During the sentencing hearing on September 28, 2021, the court adopted the final amended PSR without change and sentenced Petitioner to 151 months' imprisonment. (Sentencing Tr. at 3, 11 (stating that it was “going to go as low as [it] can to accomplish the purposes of sentencing, but it's at the bottom of the guideline range”), 14 (explaining that it was declining to exercise its discretion to impose a sentence below the Guidelines imprisonment range).) Petitioner appealed to the Fourth Circuit, which affirmed in an unpublished opinion. United States v. Giggetts, No. 21-4544, 2022 WL 3585463 (4th Cir. Aug. 22, 2022).
On November 28, 2022, Petitioner filed the instant motion to vacate. (Mot. Vacate [DE #84].) Petitioner raises two grounds for relief. First, Petitioner argues that, based on United States v. Campbell, 22 F.4th 438 (4th Cir. 2022), his North Carolina convictions do not qualify as predicates for application of the career offender guideline. (Mot. Vacate at 4-5; Pet'r's Resp. Opp'n Mot. Dismiss [DE #91] at 2.) Second, Petitioner argues that he was sentenced under a mandatory Guidelines regime, in violation of United States v. Booker, 543 U.S. 220 (2005).
The Government contends that Petitioner has failed to state a claim upon which relief can be granted. (Gov't Mot. Dismiss [DE #88]; Gov't Mem. Supp. Mot. Dismiss [DE #89].) The Government argues (i) Petitioner's claims are subject to procedural default, (ii) Petitioner's claim as to the invalidity of his career offender predicates is incorrect as a matter of law, and (iii) the record refutes Petitioner's claim that he was sentenced under a mandatory Guidelines regime. (Gov't Mem. Supp. Mot. Dismiss at 7-15; Gov't Reply [DE #92] at 1-2.) For the reasons explained below, the undersigned agrees with the Government and, therefore, recommends that the Government's motion to dismiss Petitioner's motion to vacate be granted.
D ISCUSSION
Under § 2255, there are four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) the sentence was imposed in violation of the Constitution or laws of the United States, (2) the court was without jurisdiction to impose the sentence, (3) the sentence exceeds the statutory maximum sentence, and (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; Hill v. United States, 368 U.S. 424, 426-27 (1962).
A. Procedural Default & Career Offender Predicates
Generally, “claims not raised on direct appeal may not be raised on collateral review” unless the petitioner demonstrates cause and prejudice or shows he is actually innocent of the charges against him. Massaro v. United States, 538 U.S. 500, 504 (2003). This is known as procedural default and “is neither a statutory nor a constitutional requirement, but it is a doctrine adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.” Id. Here, assuming Petitioner could show cause for failing to raise his claims on direct appeal, he cannot show prejudice because Fourth Circuit precedent forecloses his argument that his career offender predicates are invalid. Cf. United States v. Green, 67 F.4th 657, 666-71 (4th Cir. 2023) (conducting procedural default analysis). The Fourth Circuit precedent that prevents Petitioner from showing prejudice sufficient to overcome procedural default also substantively forecloses Petitioner's claim.
Under the Guidelines, “a defendant will be sentenced as a ‘career offender' if, among other requirements, ‘the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.'” United States v. Campbell, 22 F.4th 438, 441 (4th Cir. 2022) (quoting U.S.S.G.§ 4B1.1(a)(3)). Prior offenses used to trigger application of the career offender guideline are known as “predicates” and must be identified at or before sentencing so as to provide the defendant with adequate notice. See United States v. Winbush, 922 F.3d 227, 23031 (4th Cir. 2019). Application of the career offender guideline often substantially increases a defendant's advisory guideline range. See U.S.S.G.§ 4B1.1(b); Winbush, 922 F.3d at 231.
The Fourth Circuit recently held, in light of United States v. Campbell, 22 F.4th 438 (4th Cir. 2022), and United States v. Groves, 65 F.4th 166 (4th Cir. 2023), that a violation of N.C. Gen. Stat. § 90-95(a)(1) counts as a “controlled substance offense” under the Guidelines. United States v. Miller, 75 F.4th 215, 228-31 (4th Cir. 2023); see also United States v. Scotland, No. 22-4630, 2023 WL 5745361, at *1 (4th Cir. Sept. 6, 2023) (applying Miller to a defendant designated as a career offender based on prior § 90-95(a)(1) convictions). This North Carolina statute makes it a crime “[t]o manufacture, sell or deliver, or possess with intent to manufacture, sell or deliver, a controlled substance.” N.C. Gen. Stat. § 90-95(a)(1). In Petitioner's case, the court applied the career offender guideline based upon Petitioner's prior § 90-95(a)(1) convictions. (Am. Final PSR at ¶¶ 30, 36, 85.) Thus, Miller prevents Petitioner from showing prejudice to overcome the procedural defaultand forecloses his substantive argument that his prior convictions do not constitute controlled substance offenses for purposes of the career offender guideline.
The defendant in Miller was subject to an increase in base offense level for a prior “controlled substance offense” pursuant to U.S.S.G. § 2K2.1(a)(4)(a). As the Fourth Circuit explained, this guideline cross-references the career offender guideline definition for “controlled substance offense.” Miller, 75 F.4th at 231 (citing U.S.S.G. §§ 2K2.1(a)(4)(a), 2K2.1 cmt. n.1, & 4B1.2(b)).
B. Mandatory Guidelines
Petitioner's claim that he was sentenced under a mandatory Guidelines regime is belied by the record. Petitioner was advised at his arraignment that the Guidelines were advisory. (Arraignment Tr. at 5.) At sentencing, the court explained that it was declining to exercise its discretion to impose a sentence below the Guidelines range. (Sentencing Tr. at 14). Moreover, the court sentenced Petitioner more than fifteen years after United States v. Booker, 543 U.S. 220 (2005), further undermining any possibility the court was unaware the Guidelines were no longer mandatory.
CONCLUSION
For the foregoing reasons, it is RECOMMENDED that the Government's motion to dismiss [DE #88] be GRANTED and Petitioner's motion to vacate [DE #84] be DISMISSED for failure to state a claim upon which relief can be granted.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on the parties. Each party shall have until October 23, 2023, to file written objections to the 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. (May 2023).
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).