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United States v. Spann

July 9, 2009

UNITED STATES OF AMERICA
v.
JOHN SPANN



The opinion of the court was delivered by: Stengel, J.

MEMORANDUM

Before the court are three pro se motions filed by the defendant John Spann: (1) Motion to Vacate and Set Aside Judgment, pursuant to 28 U.S.C. § 2255 (Document #71), (2) Request for Discovery (Document #75), and (3) Petition for Bail (Document #76). Upon careful consideration of the parties' memoranda and for the reasons discussed herein, I will deny all the motions.

I. Background

On December 2, 2004, John Spann was charged by a federal grand jury with violating 18 U.S.C. §§ 922(g)(1) (convicted felon in possession of a firearm) and 924(e) (career criminal in possession of a firearm). Following a two-day trial, Mr. Spann was found guilty on March 30, 2005, of violating § 922(g)(1).

Spann's sentencing hearing was held on August 2, 2005. To prove Spann's status as an armed career criminal under § 924(e), the Government provided certified copies of records from the Philadelphia County Court of Common Pleas of Mr. Spann's three prior convictions: a burglary conviction from 1979 and aggravated assault convictions from 1986 and 1991. (Sentencing Hr'g Tr. 11:17--12:23, Aug. 2, 2005.) With respect to the application of the enhanced sentencing provided under § 924(e), Mr. Spann's counsel objected on the basis the convictions should have been submitted for a finding by the jury,*fn1 but conceded that her client qualified as an armed career criminal based on the record and information provided by the Government. (Id. 5:1--20.) In light of the certified copies presented and the presentence report, the court found by a fair preponderance of the evidence that Mr. Spann was an armed career criminal for the purposes of § 924(e). (Id. 12:24--13:17.) The court sentenced Mr. Spann to a term of imprisonment of 188 months, which was within the guideline range. (Id. 14:4--7.)

Mr. Spann's § 2255 motion argues (1) the Armed Career Criminal Act, 18 U.S.C. § 924(e), should not have been applied against him because a 1979 burglary conviction was improperly considered and (2) his counsel was ineffective for failing to research his criminal background and the relevant Pennsylvania burglary statute. After the Government filed its response, Spann filed the request for leave to conduct discovery in support of the § 2255 motion as well as a request to be placed on bail pending a decision on the motion.

II. Standard of Review

Mr. Spann is entitled to relief only if his custody or sentence violates federal law or the Constitution of the United States. Title 28 of the United States Code, Section 2255 provides, in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255. The district court is given discretion in determining whether to hold an evidentiary hearing on a habeas petition under Section 2255. See Virgin Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). In exercising that discretion, the court must first determine whether the habeas petitioner's claims, if proven, would entitle him to relief, and then consider whether an evidentiary hearing is needed to determine the truth of the allegations. See Gov't of the V.I. v. Weatherwax, 20 F.3d 572, 574 (3d Cir. 1994). The court may summarily dismiss a motion brought under Section 2255 where the "motion, files, and records, 'show conclusively that the movant is not entitled to relief.'" United States v. Nahodil, 36 F.3d 323, 326 (3d Cir. 1994) (quoting United States v. Day, 969 F.2d 39, 41-42 (3d Cir. 1992)); see also Forte, 865 F.2d at 62.

III. Discussion

A. Motion for Relief Under § 2255

1. The Prior Burglary Conviction was Properly Considered as a Predicate Conviction Under the Armed Career Criminal Act

Section 922(g) of Title 18 of the United States Code makes it unlawful for any person "who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year" to ship, transport, possess, or receive any firearm that has been transported in interstate or foreign commerce. 18 U.S.C. § 922(g)(1). The Armed Career Criminal Act, 18 U.S.C. § 924(e), works in conjunction with Section 922(g) to provide a fifteen-year minimum sentence for any person who violates Section 922(g) and has three previous "violent felony" or "serious drug offense" convictions. Id. § 924(e)(1). "Violent felony" is defined in part as "any crime punishable by imprisonment ...


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