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United States v. Terry

United States District Court, W.D. Pennsylvania

July 14, 2015

ANDREW TERRY Criminal Action No. 2:10-cr-29


MARK R. HORNAK, District Judge.

Now before the Court is Petitioner Andrew Terry's pro se [1] Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. ECF No. 127. Upon consideration of the Motion and its Memorandum in Support, ECF No. 128, the United States's Response, ECF No. 140, Petitioner's Reply, ECF No. 145, the entire record, the applicable law, and for the reasons set forth below, the Motion will be denied without a hearing[2] and no certificate of appealability will issue.


Petitioner Andrew Terry ("Mr. Terry" or "Petitioner") was arrested by Pittsburgh police officers on March 11, 2009, and later charged federally with Possession of a Firearm by a Convicted Felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Just before midnight that evening, Detective Love, along with other plainclothes police officers, were driving in an unmarked police car and saw Mr. Terry standing outside of a Subaru on a public street. United States v. Terry, No. 10-0029, 2010 WL 4639068, at *1 (W.D. Pa. Nov. 8, 2010), aff'd, 518 F.Appx. 125 (3d Cir. 2013). According to Detective Love, they stopped to investigate because the Subaru and a woman near the driver's side door were blocking them from passing, and the Detective also saw Mr. Terry holding an open alcohol container. Id. at *1-2. Detective Love also testified that after the unmarked police vehicle stopped, Mr. Terry made several suspicious movements, including bending inside the passenger's side door of the Subaru and making a shoving motion into his waistband, which Detective Love believed were done to conceal a weapon in his waistband. Id. at *2. Mr. Terry denied making any such movements. Id. As a result of these movements, Detective Love ordered Mr. Terry to the rear of the vehicle (Mr. Terry complied with that and other commands), performed a pat down of Mr. Terry, and found a gun. Id. Mr. Terry then attempted to flee, but Detective Love tackled him, and the other officers assisted in placing Mr. Terry under arrest. Id. at *3. At the time of the incident, Mr. Terry was on state parole. ECF No. 38, at 71:23-24. He was later indicted by a federal grand jury for Possession of a Firearm by a Convicted Felon. ECF No. 94, at 4.

At the pre-trial stage, Mr. Terry moved to suppress the firearm, arguing that police obtained it after an unlawful stop and an unlawful search. ECF No. 24. The Court[3] held an evidentiary hearing at which it heard testimony from Detective Love, the arresting officer, as well as three defense witnesses including Mr. Terry himself. ECF No. 38. After hearing all the testimony, the Court denied Mr. Terry's Motion to Suppress, making the requisite findings of fact and conclusions of law. Terry, 2010 WL 4639068, at *5. Finding Detective Love's testimony more credible on disputed issues, the Court held that both the initial stop and the subsequent pat down were lawful. Id. at *4.

Among the evidence presented at trial was testimony by the arresting officers, notably Detective Love, and most importantly, the firearm seized from Mr. Terry. On December 14, 2011, a jury convicted Mr. Terry of the offense. ECF No. 89. At sentencing, Chief Judge Lancaster found that Mr. Terry was an armed career criminal under the Armed Career Criminal Act ("ACCA"). 18 U.S.C. § 924(e); ECF No. 116, at 4:13-18. Under the Sentencing Guidelines, Mr. Terry's Total Offense Level was 33, and his Criminal History Category was VI.[4] ECF No. 116, at 4:23-25. The advisory Sentencing Guidelines ("Guidelines") recommended a sentence of 235 to 293 months, but the court sentenced Mr. Terry to 180 months in prison, the mandatory minimum statutory sentence after application of the ACCA. Id. at 5: 4-7; id. at 6:24-7:4; id. at 13:18-21; ECF No. 107, at 2.

Mr. Terry appealed his conviction, arguing the district court erred by (1) declining to suppress the firearm as fruit of an unlawful search, and (2) overruling Mr. Terry's objection to a jury instruction on evidence of flight as consciousness of guilt, which the United States requested. United States v. Terry, 518 F.Appx. 125, 127-29 (3d Cir. 2013). The Third Circuit affirmed Mr. Terry's conviction, id. at 129, and Mr. Terry did not petition for rehearing en banc, nor did he file a petition for certiorari in the Supreme Court, ECF No. 127, at 2.

On July 28, 2014, Mr. Terry filed this timely pro se Motion to Vacate, Set Aside, or Correct a Sentence pursuant to 28 U.S.C. § 2255.[5] ECF No. 127. Specifically, Petitioner argues that his Sixth Amendment right to counsel was violated because his attorney (1) failed to argue the application of Alleyne v. United States, 133 S.Ct. 2151 (2013), ECF No. 127 at 4, (2) failed to effectively plea bargain for Mr. Terry, ECF No. 127 at 5, and (3) failed to adequately cross-examine or argue inconsistencies in the arresting officer's testimony, id. at 6-7. Mr. Terry also argues that the Supreme Court's opinion in Descamps v. United States, 133 S.Ct. 2276, reh'g denied, 134 S.Ct. 41 (2013), created a "new rule of law" that justifies vacating his ACCA sentence because two of the underlying crimes do not qualify as "serious drug offenses." ECF No. 127 at 8. The United States opposes Mr. Terry's Motion in its entirety on substantive grounds. See generally ECF No. 140.[6]


A federal prisoner may collaterally attack an otherwise final sentence if (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court lacked jurisdiction to impose the sentence; (3) the sentence was imposed in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). A petitioner bears the burden of demonstrating his right to relief under § 2255. Randle v. United States, 954 F.Supp.2d 339, 349 (E.D. Pa. 2013). A district court may deny a § 2255 motion without an evidentiary hearing when "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b); United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).


A. Ineffective Assistance of Counsel Claims

Petitioners claiming ineffective assistance of counsel "must prove both incompetence and prejudice." Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). Specifically, they must demonstrate that (1) "counsel's representation fell below an objective standard of reasonableness" under prevailing professional norms and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). A court's evaluation of the attorney's actions "must be highly deferential, " and those actions must be assessed under the circumstances at the time of representation without the benefit of hindsight. Id. at 689. Moreover, the prejudice analysis requires a petitioner to show a "reasonable probability" that the result of the proceeding would have been different, or one that is "sufficient to undermine confidence in the outcome." Id. at 694. This requires a court to conclude there is "a substantial, not just conceivable, likelihood of a different result." Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011) (internal quotation marks and alterations omitted). Counsel's failure to raise a meritless argument cannot constitute ineffective assistance of counsel. United States v. Bui, 769 F.3d 831, 835 (3d Cir. 2014). An ineffective assistance of counsel claim fails if a petitioner cannot demonstrate either prong of the test, Strickland, 466 U.S. at 700, meaning that the Court does not need to address both deficiency and prejudice-if either element is not satisfied, the analysis may end there, Booth, 432 F.3d at 546.

Mr. Terry's claims that his counsel rendered ineffective assistance fail because he has not adequately averred or demonstrated that his counsel's actions fell below an objective standard of reasonableness and that, but for counsel's alleged errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 687. The Court will address each of Petitioner's ineffective assistance of counsel claims in turn.[7]

1. Alleged Failure to Raise the Implications of Alleyne v. United States

In Alleyne v. United States , the Supreme Court held that "any fact that increases the mandatory minimum [sentence for an offense] is an element' that must be submitted to the jury" rather than determined by a judge by a preponderance of the evidence at sentencing.[8] 133 S.Ct. 2151, 2155 (2013).

Mr. Terry admits that he "was found guilty by a federal jury [beyond a reasonable doubt] of a § 922(g) offense, being a felon in possession of a firearm." ECF No. 128, at 19. He further explains that his "sentence was enhanced beyond the statutory maximum for the § 922(g) offense, to a mandatory minimum term of 15 years under 18 U.S.C. § 924(e)." Id. Mr. Terry argues that because the sentencing judge determined his eligibility for the mandatory minimum sentence under § 924(e) (rather than submitting that question to the jury), his sentence was "clearly impermissible under Alleyne. " Id. at 20. This argument essentially boils down to the contention that a court must submit to a jury the question of whether the "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" before finding they are predicate offenses and imposing the mandatory minimum term of imprisonment (fifteen (15) years) under the statute. 18 U.S.C. § 924(e).

Although Mr. Terry's argument is not without some facial logic, it fails for two reasons: first, the Third Circuit has explicitly held that " Alleyne cannot be applied retroactively to cases on collateral review, "[9] United States v. Winkelman, 746 F.3d 134, 136 (3d Cir. 2014)[10]; second, both Supreme Court and Third Circuit precedent are contrary to Mr. Terry's argument on its merits. As the United States points out in its Response with regard to the second point, ECF No. 140, at 5, Alleyne did not modify Almendarez-Torres v. United States, 523 U.S. 224 (1998), which "held that the fact of a prior conviction is not an element of a crime and therefore may be found by a judge rather than a jury, " Sacksith v. Warden Canaan USP, 552 F.Appx. 108, 109 n.1 (3d Cir. 2014), cert. denied sub nom. Sacksith v. Ebbert, 134 S.Ct. 1915 (2014).[11] Citing Almendarez-Torres in a footnote, the Supreme Court remarked only that the parties did not raise the "vitality" of that decision (this Court notes that Almendarez-Torres was decided 5-4) and that the Court would "not revisit it for purposes of [its] decision." Alleyne, 133 S.Ct. at 2160 n.1.

Even though this footnote may not amount to a ringing endorsement of Almendarez-Torres 's continued vitality, our Court of Appeals has concluded in both published and unpublished opinions that the case remains binding and determinative in cases similar to this one. See United States v. Blair, 734 F.3d 218, 227 (3d Cir. 2013), cert. denied, 135 S.Ct. 49 (2014), reh'g denied, 135 S.Ct. 743 (2014) (" Almendarez-Torres has not been narrowed and remains the law."); Sacksith, 552 F.Appx. at 109 n.1 ("Contrary to Sacksmith's contention, the Supreme Court's decision in Alleyne did not undermine Almendarez-Torres in any way.").

Indeed, the court in Blair rejected a challenge somewhat similar to Mr. Terry's: Mr. Blair had contended that although the sentencing court could take into account his convictions themselves for purposes of the ACCA, the court improperly "looked at the non-elemental facts of date, location, and victim to determine that the felonies were committed on different occasions."[12] Blair, 734 F.3d at 227. Concluding that such argument lacked merit, our Court of Appeals held that the district court properly considered the documents relating to Mr. Blair's prior convictions in concluding that he committed the crimes on occasions different from one another within the meaning of the ACCA. Id. " Descamps and Alleyne do nothing to restrict the established exception under Almendarez-Torres that allows judges to consider prior convictions. When the pertinent exposed' are elements of the crime." Alleyne, 133 S.Ct. at 2160 (further internal quotation marks and citation omitted). In a footnote, the Court explained: "In Almendarez-Torres v. United States ... we recognized a narrow exception to this general rule for the fact of a prior conviction. Because the parties do not contest that decision's vitality, we do not revisit it for purposes of our decision today." Id. at 2160 n.1. documents show, as they do in this case, that the prior convictions are for separate crimes against separate victims at separate times, Alleyne does not somehow muddy the record and convert the separateness issue into a jury question." Id. Just as courts may consider the documents related to the underlying convictions to establish that the previous conviction were "committed on occasions different from one another" for purposes of the ACCA, they may also recognize that the underlying convictions qualify as "violent felon[ies] or [] serious drug offense[s], or both." 18 U.S.C. § 924(e)(1); see Blair, 734 F.3d at 226-29 (citing many cases with similar holdings, including United States v. Hendrix, 509 F.3d 362, 376 (7th Cir. 2007), which stated that "the district court's determination from the PSR that [the defendant] had three previous convictions to satisfy the Armed Career Criminal Act is not impermissible factfinding, and [the defendant's] sentence does not violate the Sixth Amendment").

What this all means is that the sentencing court in Mr. Terry's case properly considered his three (3) qualifying convictions to find that he was an armed career criminal under the ACCA and that recognizing the fact of those prior convictions was a sentencing factor, not an element of the offense which required its submission to a jury under Alleyne. Mr. Terry's claim for ineffective assistance of counsel on this ground therefore must fail: first, not raising a meritless claim on appeal is not objectively deficient performance, [13] see Bui, 769 F.3d at 835 (quoting United States v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999)) ("T]here can be no Sixth Amendment deprivation of effective counsel based on an attorney's failure to raise a meritless argument.'"); second, even assuming any failure of Mr. Terry's counsel to raise this case on appeal could constitute deficient performance, Mr. Terry did not suffer prejudice because Alleyne would not have changed the result of those proceedings, Strickland, 466 U.S. at 694.

2. Alleged Failure to Negotiate a Plea Deal

As the United States candidly acknowledges, ECF No. 140, at 7, the Supreme Court has held, and recently reaffirmed, that effective assistance claims may be asserted based on counsel's performance during the plea-bargaining process, Lafler v. Cooper, 132 S.Ct. 1376 (2012); Missouri v. Frye, 132 S.Ct. 1399 (2012).[14] Particularly in the plea context at issue, to prevail, Mr. Terry must demonstrate defective performance on his attorney's part in getting him a plea deal in the first instance that would have been better for him than how actual events unfolded ( Strickland Prong 1), Bui, 769 F.3d at 835, and must also show a reasonable probability that he would have accepted such a plea offer made if he received effective assistance of counsel (modified Strickland Prong 2 in the plea context), Frye, 132 S.Ct. at 1409.[15]

Mr. Terry contends that "[p]rior to, and after the conclusion of his Motion to Suppress Evidence hearing, Petitioner's defense counsel should have negotiated a favorable plea deal for Petitioner."[16] ECF No. 128, at 26-27. He goes on to argue that "[t]he government's borderline evidence (upon which the entire indictment rested) placed defense counsel in a prime position to negotiate a favorable Rule 11(c)(1)(C) binding plea agreement for Petitioner." Id. at 27. Specifically, Mr. Terry contends that "considering: (1) the government's arguably thin evidence in light of the [ Terry ] stop violation and the inconsistent testimony of the arresting officers; and (2) the severe penalty... which petitioner faced under the ACCA for [the] non-violent offense of merely possessing a weapon, " his defense counsel provided ineffective assistance when he did "not structure a Rule 11(c)(1)(C) agreement as a resolution to this matter." Id. at 31.

The Court concludes that notwithstanding the Supreme Court's recent opinions on the critical importance of effective assistance of counsel at the plea bargaining stage, this argument does not support relief here. Simply put, counsel cannot be ineffective for failing to negotiate a plea if there was no plea offer made by the United States to be negotiated. A plea offer is often a condition precedent to negotiation. As the Supreme Court has acknowledged, "[i]t is, of course, true that defendants have no right to be offered a plea nor a federal right that the judge accept it." Lafler, 132 S.Ct. at 1387 (internal quotation marks, citations, and alterations omitted); Frye, 132 S.Ct. at 1410. Where Mr. Terry does not contend that he even asked his attorney about attempting to solicit a plea offer, and separately and more importantly, when the record does not indicate that the United States made any plea offer (formal or otherwise[17]), there is no basis for this Court to find deficient lawyer performance or prejudice. See McClain v. United States, No. 12-2205, 2013 WL 1163562, at *4 (D.N.J. Mar. 19, 2013) ("Neither the Sixth Amendment or any relevant case law sets forth an obligation for defense counsel to seek a plea offer or to counsel his/her client of the benefits and obligations of a hypothetical offer.").

Mr. Terry's argument in this instance is "little more than an invitation for the Court to make speculation-fueled inferential leaps." Atkins v. Zenk, 667 F.3d 939, 946 (7th Cir. 2012) (finding the defendant's chain of inferences too attenuated to establish prejudice under Strickland ). For Mr. Terry's argument to succeed, the following things, at a minimum, would all need to be true: (1) the United States was willing to negotiate a plea deal[18]; (2) the United States offered a plea deal[19]; (3) Mr. Terry, with the advice of his counsel, determined it was in his interest to accept that specific plea deal[20]; and (4) the sentencing judge then would have accepted the plea agreement.[21] The Court simply cannot engage in such judicial hopscotch based on these purely speculative arguments. See also United States v. Gonzalez-Rivera, 217 F.Appx. 166, 170 (3d Cir. 2007) (holding a defendant's argument "that he would have accepted a plea agreement and that there [was] a reasonable probability that his sentence would have been more favorable had [his counsel] pursued a plea agreement" was "far too speculative" to show prejudice when the defendant did not point to specific benefit he would have received for his plea, and when the evidence contradicted his willingness to plead guilty).[22]

3. Alleged Failure to Effectively Cross Examine and Argue Inconsistencies in the Arresting Officer's Testimony

Mr. Terry also asserts that his conviction should be vacated because his attorney failed to expose and argue inconsistencies and omissions in Detective Love's testimony at both the suppression hearing and at trial, [23] specifically highlighting that (1) "Detective Love never mentioned Petitioner reaching into the vehicle and retrieving anything... [a]nd when confronted with this fact his reply was that he doesn't give every minute movement that was made in his police report, " (2) "Detective Love's testimony pertaining to Petitioner turning his back towards him repeatedly differs, " and (3) Detective Love's testimony changed between the suppression hearing and trial, most prominently with regard to whether he could see into the vehicle (and thus see Petitioner take anything out of it) or not. ECF No. 128, at 36-37. Mr. Terry also appears to take issue with (4) his counsel's failure to challenge the characterization of the neighborhood in which the police arrested Mr. Terry as a "high crime" area. Id. at 37-38.[24]

The United States responds by arguing that this claim is essentially an attempt to relitigate the issue of whether reasonable suspicion existed to justify the initial stop, which the trial court found at the suppression hearing, a conclusion the Third Circuit later affirmed. ECF No. 140, at 7-9. As to the ineffective assistance inquiry, the United States argues that Mr. Terry cannot show that he was prejudiced by any failures of his attorney to effectively cross examine the arresting officer or to make arguments about inconsistencies in the officer's testimony at either the suppression hearing or at trial. Id. at 8-9. The United States points out that the trial court was in a much better position to determine whether the testimony was credible, and that the Third Circuit left those determinations intact when it affirmed Mr. Terry's conviction. Id.

In reviewing his brief, it does appear that Petitioner is attempting to relitigate whether his suppression motion should have been granted, as he spends at least the first several pages of his argument pointing to perceived deficiencies in the trial court's decision not to suppress. ECF No. 128, at 32-35.[25] Such an attempt is impermissible except where the allegations support a claim for ineffective assistance of counsel. See United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014). Since Mr. Terry does reach that ground set forth in his Petition, albeit only intermittently throughout his argument, the Court will address those contentions only insofar as they speak to the ineffective assistance claim.

The Court first notes that this is not a case in which counsel failed to move to suppress, a situation which would present a different possible indication of deficient performance. See Thomas v. Varner, 428 F.3d 491, 500-02 (3d Cir. 2005) (holding Strickland 's deficiency prong satisfied when a central witness made a questionable identification of the defendant at a trial with little other evidence and counsel neither objected nor moved to suppress because he erroneously believed doing so was improper). More to the point on the deficiency prong, the record in this case belies at least the first, second, and fourth issues Mr. Terry raises as failures by his attorney to point out issues with Detective Love's testimony. In fact, it was Mr. Terry's attorney who drew out these issues on cross-examination during the suppression hearing-while pursuing the completely reasonable strategy of attempting to undermine a witness's credibility. See ECF No. 38, at 30:7-33:25 (cross-examination pertaining to omission of detail in the police report and differing testimony before magistrate judge); id. at 18:22-21:18 (cross-examination pertaining to whether the arrest location was actually in a high crime neighborhood).[26] Mr. Terry's claim as to those arguments, then, is essentially that, because his attorney did not win those arguments (because the court denied the motion to suppress), counsel was ineffective. To conclude as much would be to say that every attorney who has ever lost an argument ( i.e., every attorney), was thereby providing ineffective assistance of counsel in violation of the Sixth Amendment. Such accusations simply do not withstand scrutiny and must be rejected.

Then, with regard to the third issue raised, it was Mr. Terry's own attorney who elicited the alleged contradiction during trial. See ECF No. 147, at 75:24-76:7 (cross-examination regarding whether Detective Love could see into the vehicle, to which he answered he could not).[27] Whether or not counsel could have harped on that contradiction more during the course of trial, any alleged failure to do so simply does not render his performance deficient under Strickland. After all, it was defense counsel who in fact elicited the alleged contradictions both at the suppression hearing and at trial, and the Court cannot conclude that their performance in these regards was deficient.

Mr. Terry's arguments about his trial counsel's alleged failure to point out and argue inconsistencies between Detective Love's suppression hearing testimony and his testimony at trial are also without merit because Mr. Terry fails to satisfy Strickland 's second prong. For instance, even assuming that Mr. Terry's attorney at trial did not cross examine Detective Love and argue inconsistencies in his testimony to the jury such that his performance was constitutionally deficient, [28] it is safe to say that the suppression issue was pretty much the whole ballgame. This is not a case in which the firearm was only loosely connected to the Petitioner ( e.g., found in his vicinity, under a seat in his car, etc.), but was in fact found on his person. Indeed, not one, not two, but three police detectives testified to that fact during trial. ECF No. 147, at 38:18-22; id. at 39:3-4; id. at 87:10-11; id. at 88:23-24; id. at 126:4-5.[29] Whether he had the gun on his person throughout the entire encounter with police or whether he armed himself after seeing them pull up makes no difference. This all means that once the trial court denied the motion to suppress, and said that the gun that was found on Mr. Terry's person was admissible at trial, not even the most stellar attorney's cross-examination and closing argument would have created "a substantial, not just conceivable, likelihood of a different result" at trial. Cullen, 131 S.Ct. at 1403 (internal quotation marks and citations omitted). After the initial stop and search was found lawful, [30] the evidence at trial undeniably demonstrated that Mr. Terry's conduct met the elements of the charged offense: (1) he had previously been convicted of a felony; (2) he knowingly possessed a firearm; and (3) the possession was in or affected interstate commerce. See 18 U.S.C. § 922(g)(1); ECF No. 146, at 17:5-14. Because Mr. Terry cannot show prejudice based on any alleged deficiencies by trial counsel, his claim for ineffective assistance of counsel on this ground also fails.

B. Review of ACCA Application in Light of Descamps v. United States

Lastly, Mr. Terry argues that this Court should review his sentence, particularly the ACCA's application in his case, because of the Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276, reh'g denied, 134 S.Ct. 41 (2013).[31] He contends that Descamps allows this Court to vacate his sentence and remand for resentencing without the ACCA's application because his "two prior conviction [sic] under Pennsylvania [S]tate [C]ode Section 780-113(a)(30) for controlled substance offenses do not (under [ Descamps ]) qualify as serious drug offenses' for [ACCA] purposes." ECF No. 128, at 41-42. Because Pennsylvania lists substances which are not included on federal controlled substances schedules, Mr. Terry argues the Pennsylvania statute under which he was convicted is overbroad, this statute may not serve as the basis for a predicate offense under the ACCA.[32] Id. at 42.

The United States counters that each of the prior convictions relied upon for the ACCA enhancement remain viable ACCA predicates. ECF No. 140, at 10-12. The United States argues that although the Pennsylvania statute at issue does in fact criminalize "the distribution of a slightly broader range of drugs than does the federal controlled substances schedule, " the Third Circuit has held that the statute is divisible, citing United States v. Abbott, 748 F.3d 154 (3d Cir. 2014), meaning courts may "employ the modified categorical approach to determine whether the defendant was convicted of a drug crime involving a substance criminalized under the federal code, " ECF No. 140, at 11-12. Because the Information filed by the United States as to each of Mr. Terry's underlying convictions specifically states that the drug at issue was heroin, the United States argues, they qualify as serious drug offenses under the ACCA. Id. at 11.

The sentencing court applied the ACCA enhancement in Mr. Terry's case based on his "three separate convictions for aggravated assault, delivery of controlled substance, [and] possession with the intent to deliver."[33] ECF No. 116, at 4:20-22. The applicable statute for the drug convictions prohibits "the manufacture, delivery, or possession with intent to manufacture or deliver, a controlled substance by a person not registered under this act." 35 Pa.C.S. § 780-113(a)(30). The ACCA defines a "serious drug offense" as:

an offense under State law, involving manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), for which a maximum term of imprisonment of ten years or more is prescribed by law[.]

18 U.S.C. § 924(e)(2)(A)(ii).

Mr. Terry explicitly concedes that our Court of Appeals "rejected the argument that a conviction under Pennsylvania felony drug statute, 35 Pa.C.S. § 780-113(a)(30), is not a qualifying conviction under the [A]rmed [C]areer [C]riminal Act." ECF No. 128, at 47-48. However, he goes on to request that the Court not dispose of his Motion until after a "petition for rehearing [in Abbott ] has been resolved." Id. at 48. A review of the Third Circuit docket shows that no Petition for Rehearing has been filed in Abbott. See United States Court of Appeals for the Third Circuit Dkt. No. 13-2216. Moreover, the Third Circuit has recently applied Abbott in a non-precedential opinions. See United States v. Edmonds, ___ F.Appx. ___, No. 14-2695, 2015 WL 1680613, at *3 (3d Cir. Apr. 15, 2015) ("Edmonds also contends the District Court erred in concluding that his prior convictions for possession with intent to deliver a controlled substance under [35 Pa.C.S. § 780-113(a)(30)] qualified as predicate serious drug offenses' under the ACCA. However, as Edmonds acknowledges, this argument is squarely foreclosed by our recent precedential decision in United States v. Abbott . ").[34] The Court therefore concludes that Abbott stands as the law in this Circuit and will apply it to resolve Mr. Terry's Motion.

Our Court of Appeals held in Abbott that the exact statute at issue in this case is divisible, meaning that courts may apply the modified categorical approach (without running afoul of Descamps ) to determine whether a specific conviction qualifies as an ACCA predicate. 748 F.3d at 158-59. The court reasoned that the statute's specification of different punishments for different types of controlled substances indicates that each type of drug is an alternative element which courts can weigh using the modified categorical approach. Id. at 159. The Court of Appeals then affirmed the District Court's application of that method by reviewing "the charging document-the Bill of Information, " which indicated the relevant drug at issue in that case was crack cocaine. Id. Noting that the punishment for possession with intent to distribute cocaine under Pennsylvania law carries a maximum term of imprisonment of ten (10) years, and that cocaine is also a federal controlled substance, the court concluded the petitioner's prior conviction was a proper ACCA predicate. Id. at 159-60 (citing 35 Pa.C.S. § 780-113(f)(1.1)); 21 U.S.C. §§ 802(6), 812).

Although it is not readily apparent from the transcript what method the sentencing court used to find Mr. Terry eligible for the ACCA enhancement, a look at the charging documents (which is permissible under the modified categorical approach) in Mr. Terry's state court cases, ECF Nos. 140-1; 140-2, conclusively shows that the drug in Mr. Terry's prior convictions was heroin-a drug also criminalized under the Controlled Substances Act. 21 U.S.C. §§ 802(6), 812. In addition, the Pennsylvania statute at issue carries a maximum penalty of fifteen (15) years when heroin is the relevant drug. 35 Pa.C.S. §§ 780-113(f)(1), 780-104. Therefore, under Abbott, the sentencing court properly counted these convictions as ACCA predicates to determine that Mr. Terry was eligible for the enhancement. Because Descamps did not alter this analysis, as the Third Circuit explicitly held in a precedential opinion, Mr. Terry's argument in this regard must fail.

C. Certificate of Appealability

To pursue an appeal from a final order in a §2255 proceeding, a petitioner must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1)(B). A certificate of appealability "may issue only upon a substantial showing of the denial of a constitutional right.'" Michael v. Horn, 459 F.3d 411, 418 n.9 (3d Cir. 2006) (quoting 28 U.S.C. § 2253(c)(2)). When the denial of a § 2255 motion is based on the merits of the claims, the petitioner is required to show "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Id. (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). This showing could be made, for instance, when precedent clearly demonstrates that courts have arrived at divergent conclusions based on similar facts. Because Mr. Terry has not made a substantial showing of the denial of a constitutional right, and because the Court finds that reasonable jurists would not debate the denial of his motion, the Court declines to issue a certificate of appealability.


For the reasons set forth alone, Petitioner Andrew Terry's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255, ECF No. 127, will be denied. A separate Order consistent with this Opinion shall issue this date.

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