Opinion
Criminal Action No. 01-0237 (ESH), Civil Action No. 04-1636 (ESH).
April 19, 2005
MEMORANDUM OPINION AND ORDER
Petitioner Kehinde A. Hall moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. As a result of a recent change to a prior sentence imposed by the D.C. Superior Court, the government concedes that this Court may now impose a concurrent sentence (Resp.'s Opp'n at 1, 8), but argues that it should decline to do so based on the record before it. Since the Court did not consider the possibility of a concurrent sentence at the time of sentencing, it is of the view it should now consider the matter, and therefore, it will reset this matter for possible resentencing. Petitioner's other arguments, however, are without merit and are therefore rejected.
Petitioner's § 2255 motion turns on whether he was properly sentenced in the instant case based upon sentences he had previously received for prior criminal acts. Therefore, the Court provides the following summary of petitioner's sentencing history. On January 10, 1997, petitioner pled guilty in D.C. Superior Court to assault with intent to commit aggravated assault and possessing a firearm during a crime of violence and was sentenced under the Youth Rehabilitation Act, D.C. Code §§ 24-901 et. seq., to a term of up to 20 years, all but 20 months of which were suspended. (Pet.'s Mot. Ex. 1.) He began serving his sentence at that time, but was released on December 24, 1997, to begin an eighteen-month period of probation.
On January 7, 1999, petitioner was arrested in Maryland, and he pled guilty to robbery charges on June 16, 1999. As a result of this new offense, on August 20, 1999, the D.C. Superior Court revoked petitioner's probation and resentenced him to concurrent adult sentences of 20 months to five years and five to fifteen years. (Pet.'s Mot. Ex. 2.) Petitioner served just over six months on his Maryland conviction. At the end of his term, on January 8, 2000, Maryland erroneously paroled petitioner, rather than returning him to D.C. so that he could serve his sentence.
Over a year later, on May 16, 2001, petitioner was found in possession of a loaded handgun and was subsequently indicted in the above-captioned case for unlawful possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). On November 20, 2001, a jury found petitioner guilty of that crime. On February 7, 2002, this Court sentenced petitioner to 84 months incarceration, to be served consecutively to any other sentence, followed by three years' supervised release.
On appeal, the Circuit Court affirmed petitioner's sentence, although it found that this Court had applied the incorrect Sentencing Guidelines application note in ordering Hall's federal sentence to be served consecutive to any other sentence. United States v. Hall, 326 F.3d 1295, 1301 (D.C. Cir. 2003). Because this mistake did not affect petitioner's sentence, the Circuit ruled that there was no error, but it held that the proper basis for a consecutive sentence was U.S.S.G. Manual § 5G1.3(a) (2001) and Application Note 1 thereto, which provide that "[i]f the instant offense was committed . . . after sentencing for, but before commencing service of, [a] term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment." The Circuit observed that "the District of Columbia sentence [had not] commenced by May 16, 2001, the date on which Hall committed the federal offense for which he was convicted in the instant case, because Maryland had mistakenly released him from custody at the end of his Maryland sentence rather than returning him to the District to begin serving his August 1999 District of Columbia sentence." Hall, 326 F.3d at 1301. It further noted that "Hall's District of Columbia sentence did not commence on August 20, 1999," id., when he was resentenced in D.C. Superior Court following his Maryland offense. Therefore, the Circuit reasoned that petitioner fell squarely within § 5G1.3(a)'s ambit in that he had not yet begun serving his D.C. sentence and therefore his federal sentence must be served consecutive to the D.C. sentence.
Petitioner subsequently moved in D.C. Superior Court to correct his 1999 sentence. The United States agreed with Hall that the 1999 sentence was illegal because the court could not sentence defendant to a more severe sentence than the court originally suspended in 1997 without violating Mulky v. United States, 451 A.2d 855, 856-57 (D.C. 1982). Accordingly, on June 14, 2004, the D.C. Superior Court ruled that "the 1999 probation revocation sentence was illegal," vacated petitioner's 1999 sentence, re-imposed his original 1997 sentence nunc pro tunc to August 20, 1999, gave him credit for time served, and ruled that petitioner's sentence was to run concurrently with any other sentence. (Pet.'s Mot. Ex. 3.)
Petitioner now argues, and the United States agrees, that as a result of the D.C. Superior Court's ruling, the basis for the Circuit ruling in Hall no longer exists. The Court concurs. Cf. Johnson v. United States, 125 S. Ct. 1571, 1579 (2005) ("the state order eliminating the predicate required for [a sentence] enhancement . . . is always sufficient for relief"). It is now clear that the 1999 sentence on which the Circuit relied was illegal, that petitioner began serving his sentence in 1997 — long before the instant offense — and therefore, U.S.S.G. Manual § 5G1.3(a) does not apply. Similarly, the government concedes that no other provision of the Sentencing Guidelines requires this Court to impose consecutive sentences. Although the government is correct that this Court nonetheless has discretion pursuant to § 5G1.3(c) to impose consecutive sentences, that provision also allows the Court to impose concurrent sentences. This Court deems it proper to reconsider petitioner's sentence in light of the considerations set forth in 18 U.S.C. §§ 3553(a) and U.S.S.G. Manual § 5G1.3(c) and comments 3-5 thereto. Accordingly, the Court grants petitioner's § 2255 motion so that it may consider arguments regarding whether petitioner shall receive a consecutive, concurrent or partially concurrent sentence.
Petitioner also raises several other claims, none of which have merit. First, petitioner argues that Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S.Ct. 738 (2005), are retroactive and require resentencing of Hall. As Blakely concerned only the sentencing system in Washington state, it is Booker, which found the mandatory federal sentencing guidelines system unconstitutional, that is applicable here. However, this Court, as well as every circuit court to consider the question, has held that Booker is not retroactive. See United States v. Mathis, No. 97-334-04, 2005 U.S. Dist. LEXIS 5136 (D.D.C. Mar. 24, 2005) (Kollar-Kotelly, J.) (rejecting petitioner's § 2255 motion). See also Guzman v. United States, No. 03-2446, 2005 U.S. App. LEXIS 5700 (2d Cir. Apr. 8, 2005); Humphress v. United States, 398 F.3d 855, 860 (6th Cir. 2005); McReynolds v. United States, 397 F.3d 479, 481 (7th Cir. 2005); United States v. Price, 400 F.3d 844, 845 (10th Cir. 2005); Varela v. United States, 400 F.3d 864, 868 (11th Cir. 2005) (per curiam). Cf. In re Olopade, No. 05-1617, 2005 U.S. App. LEXIS 5886, at *10-11 n. 6 (3d Cir. Apr. 11, 2005) ("strongly suggest[ing] [in dictum] that Booker is likewise not retroactively applicable to cases on collateral review").
Booker clearly represents a new rule. But as numerous courts cited above have already found, it does not establish a substantive rule; rather, it is procedural. See, e.g., Guzman, 2005 U.S. App. LEXIS 5700, at *7-8. Moreover, it did not establish a watershed rule of procedure, because it did not "`implicat[e] the fundamental fairness and accuracy of the criminal proceeding.'" See id. at *9-12 (quoting Schriro v. Summerlin, 124 S. Ct. 2519, 2523 (2004)). Therefore, under Teague v. Lane, 489 U.S. 288, 301, 313 (1988) (plurality op.) and its progeny, Booker has no retroactive application. As such, regardless of whether petitioner procedurally defaulted this claim by failing to raise it earlier ( see Pet.'s Reply at 8), it in any event provides no support for resentencing him.
Obviously, whether Booker should be applied retroactively is effectively a moot issue, since the Court has decided to readdress the issue of sentencing now that it is clear that it has discretion to impose a concurrent sentence.
Petitioner's second argument, raised pro se, is that trial and appellate counsel were ineffective. "The court must . . . determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. . . . [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. . . . [S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland v. Washington, 466 U.S. 668, 690 (1984).
Strickland sets forth a two-part test petitioner must satisfy in order to make out a claim for ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. Petitioner has satisfied neither prong. In essence, Hall seeks to reargue his motion to suppress under the guise of an ineffective assistance of counsel claim. However, the record shows that petitioner was ably assisted by counsel, both at trial and on appeal, and second, there is no legal basis for a claim of prejudice.
First, as to trial counsel, petitioner argues that his attorney did not properly litigate the issues in his motion to suppress. However, the record is clear that petitioner's trial counsel ably litigated the suppression issues. He questioned a police officer who claimed that petitioner had grabbed at his own left side while hopping a fence; counsel challenged how a man could hold his side while simultaneously climbing a fence. Counsel also questioned another officer with many years of experience about why, in contravention of his usual practice, he had not had petitioner sign a written waiver of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 467 (1966). The Court deems such litigation practice to be well within the "wide range of professionally competent assistance." Strickland, 466 U.S. at 690. Petitioner's further complaints about counsel's failure to demand the production of physical evidence and to cross-examine police witnesses on various other bases are similarly flawed.
Moreover, petitioner has not shown prejudice, for trial counsel in fact raised, and the Court considered and rejected, under well-established law, the suppression issues now raised in this motion. First, where petitioner fled as police approached, reasonable suspicion existed to pursue petitioner and conduct a protective pat-down search, even though the police were not aware at that time that plaintiff had broken any laws. (10/18/01 Tr. at 129-130, citing Illinois v. Wardlow, 528 U.S. 119, 124-25 (holding that "headlong flight" from approaching police may give rise to reasonable suspicion justifying a stop under Terry v. Ohio, 392 U.S. 1, 30 (1968)).) And since a loaded firearm was found during the pat-down, petitioner's arrest was amply supported by probable cause. Second, there is no requirement that a person waive his Miranda rights in writing; an oral statement is enough. "The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." North Carolina v. Butler, 441 U.S. 369, 373 (1979). The Court found that the officer's contemporaneous notes, as well as Hall's past record, indicated that petitioner understood his rights. (10/18/01 Tr. at 44.) Thus, petitioner did not suffer any prejudice, because the Court's rulings were based on established precedent and substantial evidence. "There is" not "a reasonable probability that . . . the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Accordingly, petitioner's motion regarding the ineffectiveness of his trial counsel is denied.
Second, petitioner's appellate counsel — who continues to represent him ably with respect to this motion, although she does not comment on petitioner's ineffectiveness claim in light of the apparent conflict of interest — purportedly erred by failing to raise on appeal the above suppression issues and by declining to file a petition for certiorari on Hall's behalf. "[A]ppellate counsel who files a merits brief need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. 259, 288 (2000). In light of the Court's finding that petitioner suffered no prejudice regarding the litigation of the suppression issues, there can be no basis for arguing that appellate counsel was deficient in failing to argue these issues on appeal. Any such argument would have been frivolous. Moreover, appellate counsel's prudent selection of which arguments to press on appeal is evidenced by the Circuit's adoption of her argument, namely that this Court had relied on the wrong Sentencing Guidelines Application Note, although in the Circuit's view, this incorrect reliance did not affect petitioner's sentence. See Hall, 326 F.3d at 1301.
As to petitioner's complaint that appellate counsel erred by failing to petition for certiorari on his behalf, petitioner does not even allege that he directed her to file such a petition, notwithstanding counsel's letter advising Hall of his right to seek Supreme Court review. ( See Pet.'s Mot. at Ex. A-1 (Letter from Assistant Federal Public Defender Dyer to Hall, 5/5/03).) Moreover, as discussed, any such petition would have been frivolous, and the Supreme Court has directed the Circuit Courts to "reliev[e] a lawyer of the duty to file a petition for certiorari if the petition would present only frivolous claims." Austin v. United States, 513 U.S. 5, 8 (1994). In sum, appellate counsel acted prudently in declining to petition for certiorari in this case. Accordingly, because petitioner has failed to satisfy either prong under Strickland, his ineffective assistance claim is rejected.
Accordingly, petitioner's § 2255 motion is DENIED, except that his motion for resentencing is GRANTED in light of the D.C. Superior Court's vacating of his 1999 sentence. The United States shall writ the defendant in for a sentencing hearing on August 3, 2005 at 10:00 a.m. Petitioner may submit a memorandum in aid of sentencing two weeks prior to that date, and the government may respond within a week of receipt of petitioner's memorandum.
SO ORDERED.