Opinion
Case No. CV416-035 Case No. CR498-141
04-25-2016
WILLIE F. QUAETERMAN, JR., Movant, v. UNITED STATES OF AMERICA, Respondent.
REPORT AND RECOMMENDATION
Willie F. Quarterman, Jr. invokes 28 U.S.C. § 2255 to attack his 1999 conviction and 151-month sentence for distribution of cocaine. CR498-141, doc. 314. He has rung the § 2255 bell before. See doc. 217 (filed September 1, 2000); doc. 235 (advising denial because it included claims that should have been raised in a 28 U.S.C. § 2254 petition), adopted, 238 (Feb. 26, 2001); doc. 303 (§ 2255 motion filed Sept. 18, 2014), doc. 305 (denying on successiveness grounds, alternatively on the merits), adopted, doc. 309 (Oct. 20, 2014). This time, he points to a 2014 Eleventh Circuit ruling (doc. 314 at 6) to show that his year 2000-filed § 2255 motion did not support this Court's 2014 successiveness ruling. Hence, he concludes, this Court's denial of his 2014-filed § 2255 motion was erroneous. That, in turn, should not result in a successiveness-based dismissal of this latest § 2255 motion. Doc. 314 at 1, 6-7. He contends that, with that procedural air cleared, this Court should accept his Johnson claim and reduce his sentence. Doc. 314 at 1-3; see also doc. 315 (he moves for appointment of counsel); doc. 316 (his "supplemental authority" filing in which he cites Mays v. United States, ___ F.3d ___, 2016 WL 1211420 at *6 (11th Cir. Mar. 29, 2016) to contend that Johnson is retroactively available -- he filed this before the Supreme Court issued Welch v. United States, ___ U.S. ___, 2016 WL 1551144 (Apr. 18, 2016) (Johnson applies retroactively)).
See Johnson v. United States, ___ U.S. ___, 135 S. Ct. 2551, 2557-58 (2015) (sentencing enhancements imposed under the Armed Career Criminal Act's (ACCA's) residual clause violate due process). Under the ACCA, a felon convicted of possessing a firearm in violation of 18 U.S.C. § 922(g) who has "three prior convictions . . . for a violent felony or a serious drug offense, or both," 18 U.S.C. § 924(e)(1), faces enhanced penalties. Plain vanilla felon-in-possession convictions face a maximum 120-month sentence, see 18 U.S.C. § 922(a)(2), while ACCA-enhanced convictions fetch a 15-year (180-month) minimum and a maximum of life. 18 U.S.C. § 924(e)(1).
Johnson invalidated what's known as the statute's "residual clause"the clause defining an ACCA "violent felony" as including "burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another. . . ." 18 U.S.C. § 924(e)(2)(B) (emphasis added). Johnson, 135 S. Ct. at 2560 ("Invoking so shapeless a provision to condemn someone to prison for 15 years to life" violates the Fifth Amendment's prohibition on vague criminal laws); McClouden v. United States, 2016 WL 775831 at * 6 (S.D. Ga. Feb. 25, 2016).
But it did not call into question enhancements predicated on convictions under the ACCA's first two clauses, the "elements" and "enumerated" clauses. Johnson, 135 S. Ct. at 2563. After Johnson, then, no federal defendant can receive more than ten years if at least one of his ACCApredicate convictions are counted only under the residual clause. But enhancements based on nonresidual clause offenses remain valid. See United States v. Tinker, 618 F. App'x 635, 637 (11th Cir. 2015) (convictions that qualify as violent felonies under the "elements" clause of the ACCA rather than the "residual" clause survive Johnson); McClouden, 2016 WL 775831 at * 7 ("Burglary is a specifically enumerated offense pursuant to Section 924(e)(2)(B)(ii) and thus, does not fall within the scope of that Section's residual clause"). And Sentencing Guideline enhancements are also unaffected. United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015).
Even assuming arguendo no successiveness issue exists at this juncture, Quarterman's latest § 2255 motion nevertheless must be denied. As the Court explained in 2014:
Quarterman was sentenced as a career offender under U.S.S.G. § 4B1.1, not the Armed Career Criminal Act ("A.C.C.A."), though the Guidelines' "crime of violence" enhancement is routinely deemed to mean the same as "violent felony" under the A.C.C.A. See, e.g., James v. United States, 550 U.S. 192, 206 (2007) ("closely tracks"); United States v. Chitwood, 676 F.3d 971, 975 n. 2 (11th Cir. 2012) ("substantially the same"). Quarterman's enhancement was based, in part, upon his conviction for carrying a concealed weapon. (Presentence Investigation Report ("PSI") at 6.) The Eleventh Circuit announced in United States v. Archer, 531 F.3d 1347 (2008), that the crime of carrying a concealed weapon "may no longer be considered a crime of violence under the Sentencing Guidelines" in light of [Begay v. United States, 553 U.S. 137 (2013)]. Id. at 1352. But it makes no difference at all here. Quarterman's base offense level was 32, the same as the enhanced offense level under U.S.S.G. § 4B1.1. (PSI at 6.) Under either rubric, his total offense level was 29 after acceptance of responsibility. (Id. at 7.) Similarly, his criminal history was already level VI, so the enhancement changed nothing. (Id. at 10.) He was also sentenced at the very low end of the guideline range. (Id. at 12 (sentencing range was 151-188 months).) Under these facts, it is simply irrelevant whether or not
the career offender enhancement was improper.Doc. 305 at 2-3 (emphasis added).
It most likely was not improper, given his extensive criminal history. Quarterman was convicted of aggravated assault for shooting a man twice in the buttocks and once in the chest, aggravated sexual battery for forcing a woman into the ocean at Tybee Island's beach and then penetrating her vagina with his fingers while she begged him to stop, and child molestation for repeatedly having sex with a young girl "since she was 12 years old." PSI at 7-10.
Quarterman simply ignores that in his latest § 2255 motion. For that matter, he admits that his enhancement was based on the Sentencing Guidelines. Indeed, he even argues that "the residual clause of U.S.S.G. 4B1.2(b) is unconstitutional" per Johnson. Doc. 314 at 2. But that argument was rejected by United States v. Matchett, 802 F.3d 1185, 1194 (11th Cir. 2015); accord Garrett v. United States, 2016 WL 1296183 at * 5 (S.D. Ga. Mar. 30, 2016). "Johnson is limited to criminal statutes that define elements of a crime or fix punishments and does not apply to the advisory sentencing guidelines that do neither." Denson v. United States, 804 F.3d 1339, 1343 (11th Cir. 2015) (quotes and cite omitted); United States v. Collins, 624 F. App'x. 725, 726 (11th Cir. 2015) (same).
Accordingly, Quaterman's latest § 2255 motion must be DENIED on the merits. Normally, in applying the Certificate of Appealability ("COA") standards, the Court would be inclined to discern a COA-worthy issue supported by the concurrence to In re Robinson, ___ F.3d ___, 2016 WL 1583616 at * 2 (11th Cir. April 19, 2016). There the concurring judge argued that:
Matchett was wrongly decided. All ten of the other courts of appeals that have decided this question have either held or assumed that Matchett is incorrect. See United States v. Soto-Rivera, 811 F.3d 53 (1st Cir. 2016); United States v. Welch, No. 12-4402 (2d Cir. Feb. 11, 2016); United States v. Townsend, No. 14-3652 (3d Cir. Dec. 23, 2015); United States v. Frazier, 621 F. App'x 166 (4th Cir. 2015); United States v. Estrada, No. 15-40264 (5th Cir. Oct. 27, 2015); United States v. Darden, 605 F. App'x 545 (6th Cir. 2015); Ramirez v. United States, 799 F.3d 845 (7th Cir. 2015); United States v. Taylor, 803 F.3d 931 (8th Cir. 2015); United States v. Benavides, 617 F. App'x 790 (9th Cir. 2015); United States v. Madrid, 805 F.3d 1204 (10th Cir. 2015). Some courts have also granted applications to file second or successive § 2255 motions challenging advisory § 4B1.2 sentences based on Johnson. See, e.g., Swanson v. United States, No. 15-2776 (7th Cir. Sept. 4, 2015). And where district courts have been able to decide the issue, they have begun to hold that Johnson applies to advisory § 4B1.2 sentences in § 2255 cases. See, e.g., United States v. Dean, No. 3:13-CR-137, 2016 WL 1060229 (D. Or. Mar. 15, 2016). I believe our Court should be granting leave to file § 2255 motions in these cases as well.Id.
But again, even assuming that: (a) there is no successiveness bar here; and (b) Matchett could somehow be disregarded, "the enhancement [here] changed nothing." Doc. 305 at 3. A COA therefore should not issue. 28 U.S.C. § 2253(c)(1); see Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (approving sua sponte denial of COA before movant filed a notice of appeal); Rule 11(a) of the Rules Governing Section 2255 Proceedings ("The district court must issue or deny a [COA] when it enters a final order adverse to the applicant."). Finally, the Court DENIES Quarterman's motion for appointment of counsel. Doc. 315.
There is no constitutional right to counsel when collaterally attacking a conviction or sentence. Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); Barbour v. Haley, 471 F.3d 1222, 1227-32 (11th Cir. 2006) (even defendants sentenced to death do not enjoy a constitutional right to post-conviction counsel). Nor is there any rule-based right unless Quarterman can show that appointment is necessary for effective discovery or that a hearing is required. See Rules 6 & 8, Rules Governing § 2255 Proceedings. He has failed to make that showing. --------
SO REPORTED AND RECOMMENDED, this 25th day of April, 2016.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA