The opinion of the court was delivered by: YVETTE KANE, District Judge
On June 9, 2003, Petitioner was sentenced to a term of
imprisonment of 96 months after pleading guilty to possessing a
firearm as a convicted felon in violation of
18 U.S.C. § 922(g)(1). On February 22, 2005, Petitioner moved pursuant to
28 U.S.C. § 2255 to vacate his sentence, arguing that: (1) the
recent United States Supreme Court decisions in Blakely v.
Washington, 124 S. Ct. 2531 (2004), and United States v.
Booker, 125 S. Ct. 738 (2005), apply retroactively to his
petition and afford him certain relief because, he argues,
application of the United States Sentencing Guidelines was
unconstitutional; and (2) his counsel was ineffective in failing
to advise him about certain matters relevant to his plea bargain.
Petitioner's motion is fully briefed and is ripe for disposition.
The Court will address each of Plaintiff's arguments in turn.
I. Booker is Not Retroactively Applicable
Subsequent to the filing of the petition before the Court, the
United States Court of Appeals for the Third Circuit expressly
held that the rule of law announced in Booker regarding the
constitutionality of the United States Sentencing Guidelines does
not apply retroactively:
Because Booker announced a rule that is "new" and
"procedural," but not "watershed," Booker does not
apply retroactively to initial motions under § 2255
where the judgment was final as of January 12, 2005, the date Booker issued.
Lloyd v. United States, 407 F.3d 608
, 615-16 (3d Cir. 2005).
Judgment against Petitioner was entered on June 9, 2003 and
became final in April 2004, following Petitioner's unsuccessful
appeal of this Court's order denying his motion to suppress.
Accordingly, because Plaintiff's judgment became final prior to
January 12, 2005, Booker is not retroactively applicable to
Petitioner's § 2255 petition, and affords Plaintiff no relief.
II. Ineffective Assistance of Counsel
In the course of negotiations that resulted in a plea agreement
with Petitioner, the government allegedly threatened to seek a
superceding indictment charging Petitioner with being an armed
career criminal in violation of 18 U.S.C. § 924(e)(1), which
could have subjected Petitioner to enhanced criminal penalties.
Plaintiff claims that his trial counsel erred by failing to
advise him that he was not subject to prosecution under this
statute because one of Petitioner's predicate offenses for
purposes of this enhancement allegedly did not constitute a
violent felony for purposes of 18 U.S.C. § 924(e)(1). Petitioner
contends that had he known he could not be prosecuted under §
924(e)(1), he would not have agreed to the plea bargain offered
by the government. In support of this argument, Petitioner,
argues that his 1987 burglary conviction for breaking into a car
dealership during evening hours does not constitute a "burglary"
under § 924(e)(2)(B)(ii).*fn1
Title 18 U.S.C. § 924(e)(1), commonly referred to as the Armed
Career Criminal Act ("ACCA"), provides as follows:
In the case of a person who violates section 922(g)
of this title and has three previous convictions by
any court referred to in section 922(g)(1) of this
title for a violent felony or a serious drug offense,
or both, committed on occasions different from one
another, such person shall be fined under this title
and imprisoned not less than fifteen years, and,
notwithstanding any other provision of law, the court
shall not suspend the sentence of, or grant, a
probationary sentence to, such person with respect to
the conviction under section 922(g).
18 U.S.C. § 924(e)(1). Section 924(e)(2)(B) provides the
following definitions applicable to the ACCA:
the term "violent felony" means any crime punishable
by imprisonment for a term exceeding one year, or any
act of juvenile delinquency involving the use or
carrying of a firearm, knife, or destructive device
that would be punishable by imprisonment for such
term if committed by an adult that
. . .
(ii) is burglary, arson, or extortion, involves use
of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury
18 U.S.C. § 924(e)(2)(B)(ii.)
In Taylor v. United States, 495 U.S. 575
(1990), the Supreme
Court specifically considered what types of burglaries could be
considered violent felonies for purposes of 18 U.S.C. § 924(e)(1)
and held as follows:
We conclude that a person has been convicted of
burglary for purposes of a § 924(e) enhancement if he
is convicted of any crime, regardless of its exact
definition or label, having the basic elements of
unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to
commit a crime.
Id. at 599. In so holding, the Court effectively found that
only "generic burglary" would count as a violent crime burglary
for purposes of enhancement under the ACCA. Id.; Shepard v.
United States, 125 S. Ct. 1254
, 1257 (2005).
Petitioner acknowledges that in 1987 he committed a burglary
consisting of entering into a car dealership's garage several
hours after close of business with intent to commit a crime
therein, and that he was convicted of this crime. Notwithstanding
this admission, Petitioner argues that his "burglary conviction
fails to fall under ACCA provision and should not/can not be
counted for enhancement because; [sic] it did not involve any
conduct that presented the established criteria and
qualifications of a THREAT of physical force, nor did it present
any serious (or otherwise) POTENTIAL of risk of physical injury
to another." (Doc. No. 62, at 9.) Plaintiff appears to be arguing
that because he broke into the car dealership's garage after
working hours, and allegedly was unarmed, these facts somehow
eliminated the risk of violence during the commission of the
crime. Accordingly, Petitioner claims his trial counsel was
ineffective because he failed to advise him that the 1987
burglary conviction could not be considered a violent felony for
purposes of 18 U.S.C. § 924(e)(1).
The Court finds no merit in this argument. Petitioner's 1987
burglary conviction is precisely the kind of "generic burglary"
the Supreme Court found in Taylor to fall within the meaning of
"burglary" as used in 18 U.S.C. § 924(e)(2)(B)(ii). The fact that
Petitioner broke into the car dealership after business hours and
was allegedly unarmed is irrelevant to whether the crime should
be considered violent or dangerous for enhancement purposes.
Indeed, the Supreme Court has expressly rejected Petitioner's argument:
Congress presumably realized that the word "burglary"
is commonly understood to include not only aggravated
burglaries, but also run-of-the-mill burglaries
involving an unarmed offender, an unoccupied
building, and no use or threat of force. This choice
of language indicates that Congress thought ordinary
burglaries, as well as burglaries involving some
element making them especially dangerous, presented a
sufficiently "serious potential risk" to count toward
Taylor, 495 U.S. at 597. Nothing in Taylor requires that the
Court reconsider the facts and circumstances of Petitioner's 1987
burglary conviction according to Petitioner's characterization of
that crime as nonviolent, nor is the Court obligated to examine
Petitioner's alleged state of mind at the time this crime was
committed. In short, Petitioner was convicted of generic burglary
for breaking into a car dealership's garage with the intent to
commit a crime therein and such conviction could potentially have
been used to enhance Petitioner's sentence under the ACCA.
Accordingly, Petitioner's counsel was under no obligation to
advise his client that the 1987 burglary conviction was
inapplicable for enhancement purposes under the ACCA when in fact
the opposite was true. Therefore, the Court finds no merit to
Petitioner's claim that his counsel was ineffective, nor that
Petitioner was in any way prejudiced by agreeing to plead guilty
to a lesser offense in order to avoid being potentially subjected
to enhanced criminal penalties under the ACCA.
WHEREFORE, this 27th day of June 2005, IT IS HEREBY
ORDERED THAT Petitioner's Motion to Vacate (Doc. No. 50) is
DENIED. IT IS FURTHER ORDERED THAT, for the reasons stated in
this opinion, the Court declines to issue a certificate of
appealability. IT IS FURTHER ORDERED THAT Petitioner's motion
for an appointment of ...