United States District Court, D. South Carolina, Rock Hill Division
For USA, Plaintiff: Stacey Denise Haynes, LEAD ATTORNEY, Robert F Daley, Jr, U.S. Attorneys Office, Columbia, SC.
OPINION AND ORDER
CAMERON McGOWAN CURRIE, SENIOR UNITED STATES DISTRICT JUDGE.
Defendant, proceeding pro se, seeks relief in this court pursuant to 28 U.S.C. § 2255.
ECF No. 56. The Government filed a motion to dismiss or for summary judgment. ECF No. 60. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), the court advised Defendant of the summary judgment procedure and the consequences if he failed to respond.
On August 15, 2014, Defendant replied to the Government's motion, arguing that " [six] months after I was sentenced to 188 months my lawyer [James] Rogers wrote [two] letters saying I wasn't qualified for [the Armed Career Criminal enhancement] and I was falsely sentenced . . . ." Reply at 1, ECF No. 63. Defendant posits, " What kind of stuff is this, to wait [six] month[s] to tell me I am falsely sentenced, on his own." Id.
Out of an abundance of caution, the court notified the parties that it was considering Defendant's reply as an amendment to the § 2255 motion, asserting a claim of ineffective assistance of counsel. The court appointed counsel under 18 U.S.C. § 3006A(a)(2)(B) and directed supplemental briefing regarding the claim of ineffective assistance of counsel and related issues concerning Defendant's sentence as an armed career criminal. See Order, ECF No. 70.
On December 29, 2014, the Government responded to the court's briefing order. ECF No. 77. On January 23, 2015, Defendant, through counsel, replied.
On January 9, 2015, the United States Supreme Court ordered the parties in Johnson v. United States, 526 Fed.Appx. 708 (8th Cir. 2013), cert. granted, __ U.S. __, 134 S.Ct. 1871, 188 L.Ed.2d 910 (2014), to brief " whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii) is unconstitutionally vague." 574 U.S. __, 135 S.Ct. 939, 190 L.Ed.2d 718 (U.S. 2015) (order restoring case to argument calendar for reargument and ordering supplemental briefing). This court determined the matter should be held in abeyance pending the decision in Johnson. On June 26, 2015, the Supreme Court held the " residual clause" of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), unconstitutionally vague. 576 U.S. __, 35 S.Ct. 2551');">135 S.Ct. 2551, 192 L.Ed.2d 569, 585, 2015 WL 2473450 (
__ U.S. __, 2015).
For reasons more fully explained below, the court finds counsel was ineffective at sentencing, that Defendant was prejudiced by counsel's ineffectiveness, that the sentence imposed January 8, 2014, should be vacated, and this matter should be set for resentencing.
In early June 2013, Defendant was indicted in this District for felon in possession of a firearm, in violation of 18 U.S.C. § § 922(g)(1), 924(a)(2), and 924(e). On June 19, 2013, the Government filed an Information notifying Defendant that based upon his prior criminal record, he was subject to the enhanced penalties provided for in 18 U.S.C. § 924(e). ECF No. 23.
On September 25, 2013, Defendant entered into a written plea agreement to plead to felon in possession. As a part of the plea agreement, Defendant waived his direct appeal rights and his right to file a motion for relief under § 2255 except as to claims of ineffective assistance of counsel and/or prosecutorial misconduct. On September 26, 2013, Defendant appeared before the court and after a thorough Rule 11 hearing (which Defendant does not
challenge), entered a guilty plea to felon in possession.
A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the ACCA and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's four prior convictions for South Carolina burglary third degree, as well as his convictions for assault on a correctional officer and taking of hostage by inmate, all qualified as " violent felonies" under the ACCA. See PSR ¶ ¶ 22, 24, 25, ECF No. 41.
No objections to the PSR were filed by either the Government or Defendant. On January 8, 2014, Defendant appeared for sentencing. The court denied Defendant's motion for downward variance and sentenced him to 188 months' imprisonment. Defendant did not file a direct appeal.
II. Original Motion
On July 1, 2014, the Clerk of Court received Defendant's motion for relief under 28 U.S.C. § 2255 which he had mailed June 27, 2014. Defendant's motion presents two grounds for relief: Defendant argues he was incorrectly found to be an armed career criminal (Ground One) and there was insufficient evidence of his guilt (Ground Two).
On July 14, 2014, the Government moved to dismiss or, in the alternative, for summary judgment, ECF No. 60, arguing that the grounds presented in Defendant's § 2255 motion are barred by the terms of the plea agreement and, if not, are without merit.
Defendant filed a pro se response in opposition to the Government's original motion for summary judgment. ECF No. 63.
A. Waiver -- Standard
In his plea agreement, Defendant waived his right to challenge his conviction or " the sentence" via direct appeal or by motion for relief pursuant to § 2255 except for claims of ineffective assistance of counsel and/or prosecutorial misconduct. Plea Agreement at ¶ 10, ECF No. 36. The Government contends ...