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Bellamy v. Ramirez

United States District Court, D. South Carolina, Charleston Division

February 1, 2018

Monti N. Bellamy, #22430-171, Petitioner,
v.
Gio Ramirez, Warden of FCI-Williamsburg, Respondent.

          REPORT AND RECOMMENDATION

          MARY GORDAN BAKER, UNITED STATES MAGISTRATE JUDGE.

         Monti N. Bellamy (“Petitioner”) is a federal prisoner at the Federal Correctional Institution (“F.C.I.-Williamsburg”) located in South Carolina. He has filed a petition for habeas corpus pursuant to 28 U.S.C. § 2241. (DE# 1). Petitioner is proceeding pro se and has paid the filing fee (DE# 6, receipt number SCX200014717). Pursuant to the provisions of 28 U.S.C. §636(b)(1)(B), and Local Rule 73.02(B)(2) (D.S.C.), the assigned United States Magistrate Judge is authorized to review the petition and submit findings and recommendations to the United States District Judge. Having carefully reviewed the record, the Magistrate Judge recommends that the petition be summarily dismissed, without prejudice, and without requiring the respondent to file a return, for the following reasons:

         I. Background

         On February 22, 2011, a federal Grand Jury in the District of South Carolina returned an indictment against Petitioner for one count of being a felon in possession of a firearm, in violation of 18 U.S.C §§922(g) (1) and 924 (e). According to the United States,

The charge arose out of an investigation that started as a result of a “suspicious person's” call to the Myrtle Beach, South Carolina Police Department. Officers responded to the Wayfarer Motel and spoke to Rodrick Manigault, who advised them that a person walking around the motel property had robbed him at gunpoint the night before. The police officers located Bellamy near the pool area and patted him down. They located a firearm in his waistband. Later, Bellamy, after waiving his Miranda rights, confessed to possessing the firearm during the robbery of Manigault. During the recorded confession, Bellamy admitted taking crack cocaine from Manigault and possessing a firearm during this incident but denied pointing the firearm at Manigault.

United States v. Bellamy, 2012 WL 338635, *3 (4th Cir.) (United States's Appellate Brief).

         On June 7, 2011, Petitioner pleaded guilty without a plea agreement. The Pre-Sentence Investigation Report indicated that Petitioner was an Armed Career Criminal pursuant to 18 U.S.C. §924(e) based on four prior state convictions for: 1) Possession of Cocaine with Intent to Distribute (South Carolina) (1988) (PSR at 6); 2) Distribution of Heroin (South Carolina) (1988) (PSR at 7); 3) Distribution of Heroin, 2nd Offense (South Carolina) (1988) (PSR at 7); and 4) Distribution of Crack Cocaine and Possession with Intent to Distribute Heroin (all one offense) (South Carolina) (2004) (PSR at 9). See Bellamy, 2012 WL 338635 at *5. At sentencing, Petitioner did not object that these four prior state convictions were not predicate convictions for “serious drug offenses” under 18 U.S.C. §924(e). Rather, Petitioner objected to being classified as an Armed Career Criminal because these four prior state convictions were neither pled in the indictment, nor proven to a jury beyond a reasonable doubt.

         The District Court accepted Petitioner's guilty plea and sentenced him to 180 months of imprisonment. See D.S.C. Case No. 4:11-cr-271-RBH-1. Judgment was entered on November 4, 2011. Plaintiff timely appealed. Counsel filed an Anders brief, stating that he could identify no meritorious issues for appeal, but questioning: (1) whether the district court fully complied with Fed. R. Crim. P. 11 in accepting Bellamy's guilty plea; and (2) whether the district court erred in sentencing Petitioner as an armed career criminal, as Petitioner's prior felony drug convictions were neither pleaded in the indictment nor proven to a jury beyond a reasonable doubt. The Fourth Circuit Court of Appeals affirmed Petitioner's conviction and sentence. (DE# 55, copy of unpublished opinion, United States v. Bellamy, 473 Fed.Appx. 242, 2012 WL 1635081 (4th Cir. May 10, 2012) (per curiam)).

         In its decision, the Fourth Circuit Court of Appeals reviewed the plea colloquy for plain error and held that “[a]fter reviewing the transcript of the plea colloquy, we conclude that the district court fully complied with Rule 11 in accepting Bellamy's guilty plea” and “did not err in sentencing Bellamy as an armed career criminal.” Bellamy, 2012 WL 1635081 at *1. The Fourth Circuit Court of Appeals explained that “Petitioner's argument that the district court erroneously sentenced him as an armed career criminal is foreclosed by binding Supreme Court and Fourth Circuit precedent.” Bellamy, 2012 WL 1635081 at *1. The Court of Appeals relied on Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) for the proposition that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt” (emphasis in original). The Court of Appeals also cited United States v. Cheek, 415 F.3d 349, 352 (4th Cir. 2005) (“we have consistently found that the Sixth Amendment, as well as due process, does not demand that the mere fact of a prior conviction used as a basis for a sentencing enhancement be pleaded in an indictment and submitted to a jury for proof beyond a reasonable doubt.”).

         On June 1, 2012, Plaintiff filed a pro se motion for post-conviction relief pursuant to 28 U.S.C. § 2255. See D.S.C. Case No. 4:12-cv-1460-RBH. Petitioner alleged that his counsel was ineffective for failing to investigate or challenge the prior convictions used to subject petitioner to sentencing enhancement under the Armed Career Criminal Act (“ACCA”). See 18 U.S.C. § 924(e)(1) (providing for a mandatory minimum sentence of fifteen years where a defendant has three prior convictions for a “violent felony” or “serious drug offense” or both, “committed on occasions different from one another”). See also USSG § 4B1.4. Petitioner argued that his first prior drug conviction should not have been used because it was subject to a maximum sentence of only five years. The District Court found that Petitioner's first prior conviction (for possession with intent to distribute cocaine) was a “serious drug offense” for purposes of the ACCA. See Bellamy v. United States, 2014 WL 12693913, *3 (D.S.C. Sep. 29, 2014), appeal dismissed by 599 Fed.Appx. 530 (4th Cir. Apr. 27, 2015) (per curiam). The Court rejected Petitioner's argument, citing United States v. Vinson, 340 Fed.Appx. 882, 883-84 (4th Cir. 2009) (finding that prior South Carolina conviction for possession with the intent to distribute cocaine qualified as a serious drug offense); S.C. Code Ann. § 44-53-370(b)(1).

         In his § 2255 motion, Petitioner made a second argument, namely that two other prior state convictions (i.e. Distribution of Heroin (South Carolina, 1988, PSR at 7) and Distribution of Heroin, 2nd Offense (South Carolina, 1988, PSR at 7) were obtained during “the same course of conduct” and that there was no intervening arrest to separate them. The District Court observed that the PSR indicated these two offenses arose from two separate incidents. Specifically, Count 1 of the indictment charged that “on or about the 30th day of August, 1987, the defendant did distribute to one reliable and confidential informant a quantity of heroin, a controlled substance, ” whereas Count 2 charged that “or about the 1st day of September, 1987, the defendant did distribute to one reliable and confidential informant a quantity of heroin, a controlled substance.” (PSR ¶ 20). The District Court found that these offenses occurred on two different dates and arose out of “separate and distinct criminal episodes.” Therefore, the District Court held that Petitioner's counsel was not ineffective for not challenging these offenses being used as separate predicate offenses for purposes of the ACCA enhancement. The District Court denied Petitioner's § 2255 motion and declined to issue a certificate of appealability (“COA”).

         Despite the denial of a COA, Petitioner appealed. The Fourth Circuit Court of Appeals dismissed the appeal. See Bellamy v. United States, 2014 WL 12693913, *3 (D.S.C. Sep. 29, 2014), appeal dismissed by 599 Fed.Appx. 530 (4th Cir. Apr. 27, 2015) (per curiam). Petitioner indicates that he filed a petition for writ of certiorari, but that the United States Supreme Court returned such document to him as untimely. (DE# 1 at 2).

         On July 7, 2017, Petitioner filed the present habeas petition pursuant to 28 U.S.C. § 2241. (DE# 1). He alleges two issues, namely that: 1) “the ‘distribution' element of [his] crime of conviction is broader than the element of a ‘serious drug offense' under 18 U.S.C. § 924(e)(1);” and 2) his “record of conviction for his prior drug Convictions are (sic) inconclusive.” (DE# 1-3 at 8, ¶ 15 “Grounds for Habeas Relief”). For relief, he asks the Court to vacate his conviction and sentence, and resentence him without the ACCA enhancement. (Id. at 9, ¶ 16, “Relief”).

         II. Stand ...


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