Opinion
No. 3:98-CR-250-D(01)
March 27, 2002
CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the United States District Court for the Northern District of Texas, Defendant's postjudgment motion in his criminal case has been referred to the United States Magistrate Judge. The conclusions and recommendation of the Magistrate Judge follow:
A. NATURE OF THE CASE
Adam A. Otero, a person in federal custody, has filed a postconviction motion in his criminal case. He seeks a reduction in his sentence based upon the dismissal of a state conviction that rested on a deferred adjudication probation on April 20, 2001 and the fact that a DWI conviction is now over ten years old.
B. PARTIES
Petitioner, Adam Anthony Otero, has not named a respondent, and no process has been issued with respect to Petitioner's postjudgment motion.
C. HISTORY
Petitioner challenges his January 15, 1999, judgment of conviction and 63 month sentence of imprisonment in cause number 3:98-CR-250-D for felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Petitioner pled guilty and did not appeal his conviction. This is Petitioner's first postconviction motion.
D. LEGAL ANALYSIS
Petitioner filed an instrument entitled "Motion for Relief from Judgment." Petitioner relies upon Rules 60(b)(5) and (6) of the Federal Rules of Civil Procedure. Rule 60(b)(5) permits the court to grant relief from a final judgment if "the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application." FED. R. CIV. P. 60(b)(5). Rule 50(b)(6) permits the court to grant relief for "any . . . reason justifying relief from the operation of the judgment [other than the first five reasons listed in the rule]." FED. R. CIV. P. 60(b)(6).
Petitioner argues that the Court should vacate his sentence, recalculate the guideline range for his sentence based upon a new and lower criminal history score, and resentence him to the bottom of the new guideline range. He claims he is entitled to this relief because, over two years after his conviction in this case, Petitioner successfully obtained dismissal of a state case in which he had pled guilty and received a sentence of probation. The trial court assessed one criminal history point under the guidelines for the conviction. Petitioner also claims the trial court should not have assessed one criminal history point for a DWI conviction in Dallas County that was over ten years old. Petitioner claims that his counsel provided ineffective assistance at sentencing for failing to challenge these two criminal history points.
Petitioner attaches an "Order to Withdraw Guilty plea, Set Aside Guilty Verdict and Dismiss Information" from a State Court in North Dakota, dated April 20, 2001.
Assuming Petitioner can bring such a challenge in a Rule 60(b) motion, the judgment that was entered is correct and no reason exists, equitable or otherwise, for vacating the judgment and entering a new judgment. The Rule 60(b) motion should be summarily dismissed as frivolous. Petitioner knew the facts underlying his claim before he was sentenced. Prior to his sentencing, he told counsel to object to the criminal history points awarded for the North Dakota conviction and for a 1988 conviction for DWI in Dallas. Counsel did not object to these points. Such an objection would have been frivolous and would not have been sustained.
Motions praying for the vacation of a criminal conviction rather than a civil judgment "are not ordinary Rule 60(b) motions." See United States v. Reyes, 945 F.2d 862, 864 (5th Cir. 1991). Courts may treat motions by federal prisoners to set aside their convictions on constitutional grounds, purportedly brought as Rule 60(b) motions, as § 2255 motions. United States v. Rich, 141 F.3d 550, 551 (5th Cir. 1998).
The North Dakota Conviction
Petitioner relies upon Daniels v. United States, 532 U.S. 374 (2001), which provides a narrow exception to the rule that once a federal proceeding for sentencing has concluded, a prisoner may not challenge his federal sentence through a motion for postconviction relief on the ground that a prior conviction upon which an enhancement is based was unconstitutionally obtained. According to Daniels, a defendant may challenge a prior state conviction based upon a denial of his right to counsel in the earlier proceeding in a motion brought pursuant to 28 U.S.C. § 2255, but generally, only if he raised his claim at his federal sentencing proceeding. Daniels, 532 U.S. at 382. Even if the Daniels exception were to be interpreted more broadly, such an exception is not available to a prisoner such as Petitioner who knew the underlying facts that were necessary for a challenge to his state conviction (at which he was represented by counsel) but waited a substantial time after his federal conviction to challenge the state conviction. United States v. Clark, 2002 WL 287631 4 (5th Cir. Feb. 26, 2002) (holding an exception is not available to an inmate who never attempted any attack, by direct appeal or otherwise, on his challenged 1983 state convictions (at which he was represented by counsel) until 1996, some four years after the federal sentence he seeks to attack in his 1997 motion to vacate pursuant to 28 U.S.C. § 2255 — as having been enhanced by the allegedly invalid 1983 state convictions). Petitioner's claim for relief is barred by the Fifth Circuit's decision in Clark.
Daniels involved a sentence enhancement for career criminals.
Additionally, again assuming Petitioner could overcome the considerable procedural hurdles that he sought to avoid by filing this as a Rule 60(b) motion and obtain consideration on the merits of his motion for postconviction relief, the motion should be denied. No sentencing error occurred. On March 3, 1988, Petitioner pled guilty to theft of property in North Dakota and received a sentence of five years probation. His probation was terminated because he was no longer in North Dakota. In 2001, Petitioner brought a petition to have the guilty plea set aside. The state did not oppose the petition. The trial court allowed him to withdraw his plea of guilty, plead not guilty, and have the judgment of guilt set aside and the criminal information dismissed. The fact that the judgment has been set aside does not render Petitioner's sentence inequitable. When Petitioner was sentenced, he had pled guilty to the crime in North Dakota and received probation which had not been successfully completed. The North Dakota conviction was the equivalent of a deferred adjudication probation for which a criminal history point was warranted. See United States v. Stauder, 73 F.3d 56, 57 (5th Cir. 1976) (holding that a deferred adjudication could be used for calculating a base offense level for a defendant convicted of a firearm offense under the U.S.S.G.). Counsel did not provide ineffective assistance by failing to object to the criminal history point for the North Dakota conviction.
Even if the court were to construe Petitioner's motion as one brought pursuant to 28 U.S.C. § 2255, his motion would fail. Claims of sentencing errors must be raised on appeal. Such claims are procedurally defaulted unless the petitioner shows cause for failing to bring the errors on appeal and prejudice. Petitioner did not lodge an appeal and does not claim ineffective assistance of counsel on appeal.
Moreover, assuming the present motion constitutes a § 2255 claim of ineffective assistance of counsel at sentencing, that claim would be barred by one-year statute of limitations, absent grounds for equitable tolling of the limitation period. See 28 U.S.C. § 2255.
Petitioner's DWI Conviction in Dallas
Petitioner's claim that he should not have received one criminal history point for his DWI conviction in Dallas because the conviction is over ten years old is totally without merit. Petitioner pled guilty to DWI in Dallas County on May 18, 1988 and was sentenced to 30 days jail probated for two years. Section 4A1.2(e) of the United States Sentencing Guidelines sets out the applicable time period a court can consider when computing a defendant's criminal history.
(1) Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted . . . .
(2) Any other prior sentence that was imposed within ten years of the defendant's commencement of the instant offense is counted.
(3) Any prior sentences not within the time periods specified above is not counted.
The dictionary definition of " commence" is "to initiate . . . to begin." Webster's Third New International Dictionary, Unabridged (1997).
U.S.S.G. § 4A1.2(e). [Emphasis supplied.]
The terms of § 4A1.2(e)(2) govern in Petitioner's case. The relevant provisions of Application Note 8 to U.S.S.G. 4A1.2 reads:
Commentary in the Sentencing Guidelines Manual is generally binding on the courts unless it is inconsistent with the Constitution, federal statutory law or is plainly erroneous. Stinson v. United States, 508 U.S. 36, 38 (1993).
Applicable Time Period. Section 4A1.2(d)(2) and (e) establishes the time period within which prior sentences are counted. As used in § 4A1.2(d)(2) and (e), the term commencement of the instant offense" includes any relevant conduct. See § 1B1.3 (Relevant Conduct).
Subparagraph (a)(2) of § 1B1.3 defines "relevant conduct" as all acts and omissions . . . that were part of the same course of conduct or common scheme or plans as the offense of conviction. Application Note 9(B) of that guideline further provides that to be part of the same course of conduct, the acts need only to be "sufficiently connected or related to each other as to warrant the conclusion that they are part of a single episode, spree, or ongoing series of offenses." Courts are not restricted to the allegations in the indictment in determining the date of the "commencement of the instant offense" under § 4A1.2(e); rather, the sentencing court may consider preindictment activity to establish the starting date of the offense, and then use that date to calculate the time period for which prior sentences are counted. See United States v. Harris, 932 F.2d 1529, 1538 (5th Cir. 1991) (holding that "pre-indictment activities may properly be considered when determining the applicability of section 4A1.1(d) or (e)").
If the instant offense commenced before May 18, 1998 (the criminal history point was correctly assessed. The offense conduct in the presentence investigation report reveals that Petitioner pawned a MAK-90 assault rifle at a pawn shop near his home on November 21, 1997 and February 6, 1998. A confidential informant informed Special Agent Dan Curtis of the Bureau of Alcohol, Tobacco and Firearms and told him Petitioner, a convicted felon, had eight assault rifles, one silencer, one MAK-90 assault rifle and a quantity of ammunition in his possession and that he had personally observed those items in Petitioner's residence fourteen days prior to May 4, 1998. A search warrant was executed on May 21, 1998 and law enforcement officials located eight firearms, a silencer and a large quantity of ammunition. Although the offense conduct ended on May 21, 1998, either the offense conduct itself or at the least, relevant conduct, commenced before May 18, 1998, within the ten-year period. Hence his DWI sentence was imposed within ten years of the commencement of the instant offense. The trial court's assessment of one criminal history point for the DWI conviction was not erroneous. Counsel did not provide ineffective assistance for failing to object to the trial court's assessment of the criminal history point Petitioner's motion for relief from judgment should be summarily dismissed as frivolous.
RECOMMENDATION
Petitioner's Motion for Expedited Consideration should be denied as moot in light of this disposition of his postconviction motion. The Court should summarily dismiss Petitioner's civil motion for relief from judgment pursuant to Fed.R.Civ.P. 60(b)(5) and (6).