IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
December 21, 2011
UNITED STATES OF AMERICA
The opinion of the court was delivered by: Pratter, District Judge
Sixteen years ago a jury convicted Sean Branham of two counts of
separate armed assaults on U.S. Postal Service letter carriers and two
counts of pointing a gun at the two letter carriers during each of the
two assaults. Our now deceased colleague, District Judge Charles
Weiner, imposed a sentence of 244 months imprisonment.*fn1
Both Mr. Branham and the Government timely appealed. Mr.
Branham took exception to the trial court's denial of the defense
suppression motion as well as to the court's refusal to discount the
guidelines' impact of his criminal history. The Government appealed
the trial court's declination to impose a 20 year mandatory
consecutive sentence pursuant to 18 U.S.C. § 924(c). The Court of
Appeals rejected Mr. Branham's arguments but accepted those of the
Government. Thus, the appellate court vacated the 244 month sentence
and remanded the case for re-sentencing.
On May 24, 1996, the district court re-sentenced Mr. Branham to a total of 400 months imprisonment, comprised of concurrent 100 month sentences on the two assault counts, 60 consecutive months for one of the gun counts and, as instructed by the Court of Appeals, 240 further consecutive months on the Count 8 gun charge. Mr. Branham's appeal contending that the sentence was excessive was denied when the Court of Appeals affirmed the sentence on March 14, 1997.
Mr. Branham now submits his pro se § 2255 motion claiming, inter alia,that his attorney was ineffective for (1) failing to conduct a meaningful investigation and not disputing the "career offender" designation on the grounds that the simple assault, a misdemeanor, was not a crime of violence, (2) failing to challenge the Court of Appeals' jurisdiction to consider the Government's appeal, and (3) colluding with the Government due to a conflict of interest arising from criminal charges pending against counsel at the time of his representation of Mr. Branham.*fn2
As an initial matter, Mr. Branham's § 2255 Petition is entirely untimely. Section 2255, which allows defendants to collaterally attack their convictions and/or sentences while in prison, has a one year limitations period that only permits a defensive filing within one year of the latest of:
(1) the date on which judgment of conviction became final;
(2) the date on which the impediment to making a motion created by government action in violation of the Constitution or federal laws is removed, if the movant was prevented from making a motion by such governmental action;
(3) the date on which the right asserted by defendant was first recognized by the U.S. Supreme Court and made retroactively applicable; or
(4) the date on which the facts supporting the claim could have been discovered through the exercise of reasonable diligence.
28 U.S.C. § 2255(f).*fn3
Subsections 1, 2, and 4 of § 2255(f) do not appear to give any solace here to Mr. Branham, and, indeed, he does not appear to mount any argument to the contrary. In regards to subsection 3 of § 2255(f), Mr. Branham's primary claim is that he should not have received career offender status because in Johnson v. United States, 130 S. Ct. 1265 (2010), the U.S. Supreme Court created new substantive law suggesting that not every simple assault is a crime of violence for the purposes of Guideline § 4B1.1,*fn4 and that in order to qualify as such, the record must categorically reflect that the assault constituted a crime of violence. Accordingly, Mr. Branham argues that because he pled only to simple assault under 18 Pa. Cons. Stat. § 2701 as his prior offense, and there is nothing categorical on the record to suggest that he committed a crime of violence, Johnson dictates that he should not have received the career offender enhancement to his sentence.
The Government, on the other hand, argues that the new right asserted by Mr. Branham was, if at all, first recognized by the United States Supreme Court in Begay v. United States, 553 U.S. 137 (2008), where the Court held that for a crime to constitute a "violent felony" under the second prong of the ACCA, it must involve "purposeful 'violent' and 'aggressive' conduct."*fn5 Id. at 144-45. The Government interprets Johnson merely as a refinement of the holding in Begay, not as a recognition of any new substantive rights. Accordingly, the Government reasons, Mr. Branham's § 2255 petition is rendered untimely because the Supreme Court decided Begay on April 16, 2008, more than two years before Mr. Branham filed his motion.
The Court agrees with the Government that Mr. Branham's petition is untimely. First, assuming the Supreme Court announced a newly recognized right at all, it did so in Begay, not in Johnson. In spite of Mr. Branham's protestations to the contrary, nothing in Johnson suggests that the Supreme Court recognized a new right, let alone a new right with retroactive application relevant to Mr. Branham's claim here.*fn6 Johnson, simply applied the general reasoning of Begay to determine that not all violations of Florida's battery statute constitute violent felonies under the first prong of the ACCA.
Central to the Supreme Court's holding in Johnson was that the Florida battery statute, as interpreted by the Florida Supreme Court, required only the most minimal showing of intentional physical contact, such as a tap on the shoulder. Id. at 1269-70 (citing State v. Hearns, 961 So. 2d 211, 218 (Fla. 2007)). That is simply not the case with the Pennsylvania simple assault statute at issue here. 18 Pa. Cons. Stat. § 2701. The Third Circuit Court of Appeals has already held that intentional or knowing assault under the simple assault statute constitutes a crime of violence under the career offender provision of Guideline § 4B1.1. Johnson, 587 F.3d at 211 (noting that "the statute itself contemplates bodily harm to the victim as a prerequisite to conviction," and that the Court of Appeals "cannot imagine a scenario in which simple assault under Pennsylvania law could not present a risk of injury."). Although the Pennsylvania simple assault statute also criminalizes reckless conduct, it is unmistakable from the record that Mr. Branham's assault conviction was premised on intentional conduct.*fn7 Because Johnson does not create a new right applicable to this case, and merely refined the Court's ruling in Begay, it does not govern the statute of limitations for purposes of Subsection (3) of § 2255(f).
Second, even if this Court were to assume that Johnson created a new right, it would not help Mr. Branham in this case considering that the two prongs of § 4B1.2 set forth a disjunctive test for determining what constitutes a crime of violence. Whereas Johnson only dealt with the first prong of the ACCA, the Government correctly asserts that Mr. Branham's assault conviction falls directly within the scope of the second prong of Guideline § 4B1.2 as interpreted in Begay.*fn8
Accordingly, even with the benefit of Johnson, Mr. Branham's simple assault conviction still would constitute a crime of violence under the career offender provision.
Third, assuming that the Supreme Court recognized a new right in Begay and it should be applied retroactively -- both rather monumental leaps -- there would still need to be some record- based reason to conclude that Mr. Branham was, through no fault of his own, precluded from initiating suit within the one year period. There is no basis on which to surmise -- much less deduce -- that any such excuse or reason applies.
Mr. Branham's § 2255 motion is untimely and is, accordingly, denied.*fn9
BY THE COURT:
GENE E.K. PRATTER United States District Judge