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United States v. Christian

United States District Court, W.D. Pennsylvania

April 13, 2017

UNITED STATES
v.
FRANK CHRISTIAN

          OPINION AND ORDER

          Donetta W. Ambrose Senior Judge, U.S. District Court.

         SYNOPSIS

         The Court of Appeals for the Third Circuit observed that this case had become like a jigsaw puzzle, though not planned as such. An equally apt sentiment, at this juncture, is attributed to Plato: “Then we got into a labyrinth, and, when we thought we were at the end, came out again at the beginning, having still to see as much as ever.” Thus, we proceed to wend our way back in.

         OPINION

         I. HISTORY IN THIS COURT

         To clarify the issues presently at stake, and for ease of reference to pertinent dates and events, I will once again recite the history of this matter.[1]

         In 2003, Defendant pleaded guilty to violating 21 U.S.C. § 841. He was sentenced in August, 2003, to a term of imprisonment of 262 months, followed by an eight-year term of supervised release. The sentence was, in part, based on a career offender enhancement premised on two simple assault convictions, in accordance with United States v. Dorsey, 174 F.3d 331 (3d Cir. 1999). On March 6, 2008, Defendant filed a pro se Motion to Vacate his sentence pursuant to 28 U.S.C. § 2255 (the “2008 Motion”), asserting that counsel was ineffective for failing to object to improper enhancements, and that his career offender enhancement was improper. The Government opposed that Motion as untimely. I scheduled an evidentiary hearing and appointed counsel for Defendant. At the hearing, which ultimately occurred on April 16, 2009, counsel withdrew the 2008 Motion. At the hearing, the parties addressed other grounds for resentencing, and Defendant was resentenced on those other grounds. That day marked the one-year anniversary of Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008), and consequently the expiration of the one-year time limitation for raising a Section 2255 claim based on that case.

         Defendant appealed the resentencing, and sought and received from the United States Court of Appeals for the Third Circuit a stay pending the outcome of United States v. Johnson, 587 F.3d 203 (3d Cir. 2009). Johnson bore on the continued viability of Dorsey after the Supreme Court's April 16, 2008 decision in Begay. In turn, the continued viability of Dorsey would impact whether simple assault qualified as a “crime of violence” for the purposes of career offender sentencing enhancements.

         The Court of Appeals decided Johnson in November, 2009, effectively overruling Dorsey. The Court of Appeals then lifted the stay in Defendant's case. In its Opinion, it affirmed Defendant's conviction and sentence; denied his motion to remand for resentencing based on Johnson;[2] and suggested that he might seek habeas relief in this Court based on Johnson. United States v. Doe, No. 9-2265 (May 10, 2012). On December 6, 2012, Defendant filed in this Court a counseled Motion to Vacate pursuant to Section 2255 (the “2012 Motion”), arguing that Johnson and Begay justified resentencing. I denied the Motion by Order dated March 14, 2013. United States v. Christian, No. 2-191, 2013 U.S. Dist. LEXIS 35156 (W.D. Pa. Mar. 14, 2013). In doing so, I concluded that the Motion was barred by the applicable one-year statute of limitations. Secondarily, I addressed the Government's contention that the withdrawn 2008 Motion “counted” as a first petition, for purposes of the ban on second or successive petitions. I concluded that it did, and that the 2012 Motion must be denied on those additional grounds.[3]

         Then, on April 17, 2013, Defendant filed a pro se Motion for Reconsideration pursuant to Fed.R.Civ.P. 59(e). In that Motion, Defendant asserted that counsel had advised him that due to Dorsey, his career offender argument was without merit. He further asserted that counsel's misrepresentation of the argument's merit precluded him from asserting Begay within the one-year limitations period, and sought equitable tolling on that basis. Allegedly ineffective counsel withdrew, and I appointed new counsel to pursue Defendant's allegations that prior counsel had been ineffective with regard to Begay and the 2008 Motion, and to address the substance of the Begay-based argument.[4]

         Accordingly, on August 7, 2013, Defendant filed a counseled supplemental Motion to Vacate pursuant to Section 2255, in connection with the earlier pro se Motion for Reconsideration. In the supplemental filing, Defendant argued that prior counsel was ineffective in failing to keep abreast of Begay challenges, and in otherwise failing to preserve Defendant's Begay claim.[5] On those grounds, he sought resentencing, or to revive either his 2008 Motion or 2012 Motion. Specifically, Defendant's supplemental brief contended that because of the alleged ineffectiveness, either the 2008 Motion should be reinstated, or the statute of limitations equitably tolled on the 2012 Motion. By Order dated October 3, 2013, I denied Defendant's requests for relief. United States v. Christian, No. 2-191, 2013 U.S. Dist. LEXIS 142924 (W.D. Pa. Oct. 3, 2013). Because Defendant's submissions presented the matter solely through the lens of counsel's ineffectiveness in withdrawing the 2008 Motion and failing to pursue Begay, I considered the matter solely through that lens. In so doing, I considered the pertinent legal landscape at the time of prior counsel's allegedly ineffective conduct. Based on then-existing law, I concluded that prior counsel was not ineffective when he withdrew the Motion, and failed to prophesy a future change in the law. Finally, I rejected Defendant's contention that the one-year limitation period should be equitably tolled.[6]

         II. DEFENDANT'S APPEAL

         Subsequently, as described by the Court of Appeals, Defendant appealed the denials of both the 2012 Motion and the “request made in 2013 to reopen” the 2008 Motion. United States v. Doe, 810 F.3d 132, 138 (3d Cir. 2015).[7] The Court of Appeals granted Defendant a certificate of appealability “on whether the District Court properly ruled that (1) his 2012 motion was his second, (2) he was not entitled to equitable tolling on his 2012 motion, and (3) he was not entitled to reinstate his 2008 motion.” Id. at 148. By Opinion dated December 9, 2015, the Court of Appeals vacated the denial of Defendant's request to reinstate his 2008 Motion, which presumably was implicit in this Court's Order denying him Section 2255 relief, and remanded the matter for consideration of all of the relevant factors. Id. at 153, 161.

         Before embarking on the applicable analysis, it is worthwhile to clarify what the Court of Appeals' decision left, and did not leave, at issue on remand. All of the Court of Appeals' substantive conclusions are in accord with those reached by this Court. For example, the Court of Appeals decided that had the 2012 Motion been Defendant's first, it would have been untimely under the one-year statute of limitations period, and that the statute of limitations should not be tolled. Id. at 150. In addition, the Court of Appeals observed that Defendant's initial habeas counsel “was not negligent at all, ” and, assuming that the failure to anticipate changes in the law could be deemed a mistake, that “mistake” did not justify equitable tolling. Id. at 151. In sum, the Court of Appeals noted that Defendant had “no legitimate Strickland claim.” Id. at 151 n. 10. Moreover, the Court of Appeals also addressed the state of the law in 2008, noting that “[w]hen [Defendant] first raised this [career offender] claim, our case law labeled it a loser, ” but that the claim gained strength after Begay. Id. at 142. In sum, both this Court and the Court of Appeals have concluded that defense counsel was not, at any pertinent point, constitutionally ineffective; that Defendant's career offender argument was meritless at the time that it was initially raised; and that Defendant's 2012 Motion, even if considered his first, was time-barred.

         Nonetheless, the Court of Appeals opined that I should have taken the following steps: 1) sua sponte treated as a Rule 60 motion Defendant's request, which appeared within his counseled brief in support of his August 7, 2013 supplemental Motion to Vacate, to reinstate his 2008 Motion;[8] 2) asked whether that Rule 60 Motion was a disguised second or successive Section 2255 Motion, and 3) if it was not so disguised, asked whether extraordinary circumstances justified relief. Id. at 151. Following remand, I directed the parties to brief these issues, as well as the next step if Defendant were to obtain Rule 60 relief.

         After those issues were fully briefed, Defendant requested and was granted leave to amend his Section 2255 Motion to raise an argument pursuant to Johnson v. United States, ___U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015) (“Johnson (U.S.)”).[9] Although an amended motion typically supplants a previous filing, given the procedural posture of this case and the lack of a clear statement of Defendant's intent to abandon his Rule 60 arguments, it would be inappropriate to disregard the Court of Appeals' instructions on remand, and consider only Defendant's argument under Johnson (U.S.). Accordingly, I will address both Defendant's Rule 60 and Section 2255 contentions.

         III. RULE 60

         A. Rule 60(b) Standards

         As directed, I will treat Defendant's request as though it had been made under Fed.R.Civ.P. 60(b)(6). That rule permits a party relief from any final judgment, order, or proceeding for “any...reason that justifies relief.” A “movant under Rule 60(b) bears a heavy burden, ” and Rule 60(b) motions are deemed to request “extraordinary relief which should be granted only where extraordinary justifying circumstances are present.” Oat v. Sewer Enters., 584 F. App'x 36, 41 (3d Cir. 2014). Accordingly, our Court of Appeals has warned that “courts are to dispense their broad powers under 60(b)(6) only in ‘extraordinary circumstances where, without such relief, an extreme and unexpected hardship would occur.'" Cox v. Horn, 757 F.3d 113, 120 (3d Cir. 2014). “[C]ourts must heed the Supreme Court's observation…that Rule 60(b)(6) relief in the habeas context…will be rare.” Id. at 125. Consistent with these principles, as our Court of Appeals noted in this case, “a change in the law ‘without more' is an inadequate basis for Rule 60 relief.” Doe, 806 F.3d at 750. It is for this Court to determine if that something "more" - indeed, “much more”-- exists. Id. Against these standards, I am mindful, too, that Rule 60(b) should be liberally construed in order to do justice. Lasky v. Continental Products Corp., 804 F.2d 250 (3d Cir. 1986).

         B. Second or ...


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