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United States v. Marrero

United States District Court, W.D. Pennsylvania

December 22, 2017

UNITED STATES
v.
RICARDO MARRERO

          OPINION AND ORDER

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

         SYNOPSIS

         In this action, Defendant pleaded guilty, without a plea agreement, to two Counts of bank robbery. On May 2, 2011, Defendant was sentenced to a term of imprisonment of 96 months, followed by a term of supervised release. His sentence was based, in part, on the career offender provisions of the Sentencing Guidelines, due to prior convictions for simple assault and third-degree murder.[1] His sentence was affirmed on appeal. United States v. Marrero, 677 F.3d 155 (2012). The United States Supreme Court granted his subsequent petition for certiorari. The Supreme Court then vacated the decision of the Court of Appeals, and remanded the case for further consideration in light of Descamps v. United States, 133 S.Ct. 2276 (2013). Marerro v. United States, 133 S.Ct. 2732 (2013). On remand, the Court of Appeals upheld Defendant's career offender designation. United States v. Marrero, 743 F.3d 389 (3d Cir. 2014). The mandate issued on June 12, 2014. Defendant filed a petition for writ of certiorari from that decision, which was denied on January 12, 2015.

         On January 8, 2016, Defendant filed a Motion to Vacate pursuant to 28 U.S.C. § 2255. In his Motion, Defendant argued that his sentence was invalid pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015), and argued that counsel was ineffective for failing to advise the Court of Appeals, while his direct appeal was pending, that Johnson could impact his appeal. Counsel was appointed, and filed a brief in support of Defendant's Motion. The counseled brief argued Defendant's position based on Johnson. The Motion was then stayed several times: first pending Welch v. United States, 136 S.Ct. 1257 (2016), then Beckles v. United States, 137 S.Ct. 886 (2017), and most recently pending the appeal, as yet unresolved, of United States v. Stanton, No. 11-57, 2016 U.S. Dist. LEXIS 186714 (W.D. Pa. Nov. 4, 2016). On October 13, 2017, the stay was lifted. The parties have filed supplemental briefs. Acknowledging that Beckles has nullified his initial claim, Defendant now argues that Mathis v. United States, 136 S.Ct. 2243 (2016), entitles him to relief.

         OPINION

         I. SECTION 2255 MOTION

         A. Applicable Standards

         Relief is available under Section 2255 only under exceptional circumstances, when the claimed errors of law are "a fundamental defect which inherently results in a complete miscarriage of justice, " or "an omission inconsistent with the rudimentary demands of fair procedure." Hill v. United States, 368 U.S. 424, 428 (1962). A district court need not hold an evidentiary hearing on a Section 2255 motion if the motion, files, and records show conclusively that the defendant is not entitled to relief. United States v. Ritter, 93 F. App'x 402 (3d Cir. 2004). Although a defendant bears the burden of demonstrating entitlement to Section 2255 relief, in this context, the Government bears the burden of demonstrating that career offender status is appropriate. United States v. Smith, No. 92-146, 2016 U.S. Dist. LEXIS 113484, at *6 (W.D. Pa. Aug. 25, 2016). A hearing is unnecessary in this case, and the Motion will be disposed of on the record.

         B. Defendant's Motion

         “Absent an intervening change in the governing substantive law or other exceptional circumstances, Section 2255 generally ‘may not be employed to relitigate questions which were raised and considered on direct appeal.'" United States v. Gagliardi, No. 10-480, 2010 U.S. Dist. LEXIS 53739, at *7 (E.D. Pa. June 1, 2010) (quoting United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d Cir. 1993) (citations omitted)). This rule is based on strong policies favoring finality in judicial proceedings, as well as economy of judicial resources. United States v. Orejuela, 639 F.2d 1055, 1057 (3d Cir. 1981). It is common sense that those policies might give way when a direct appeal was decided without the benefit of a subsequent change in substantive law.

         Recently, the Court of Appeals for the Eleventh Circuit considered “whether an intervening decision of the United States Supreme Court…permits Appellant…to establish, through a [2255] proceeding, that the district court erred at sentencing when it determined that he qualified as a career offender under [the Guidelines].” Brown v. United States, 688 Fed.Appx. 644, 645 (11th Cir. 2017). The Court observed:

An intervening change of law can provide a basis for relief under § 2255 if the change in law has a constitutional dimension or if it involves a change in the interpretation of a law of the United States. Where an intervening change of law involves the interpretation of a law of the United States, the intervening change in law only provides a basis for relief on collateral review if not applying the change constitutes a "fundamental defect which inherently results in a complete miscarriage of justice." An error at sentencing rises to the level of a "fundamental defect" and "results in a complete miscarriage of justice" if the prisoner "is either actually innocent of his crime or . . . a prior conviction used to enhance his sentence has been vacated." Conversely, a misapplication of the Guidelines does not constitute a "fundamental defect" or "result[] in a complete miscarriage of justice" ….Accordingly, even assuming that [Defendant's]…offense does not qualify as a “crime of violence” under the analysis employed in the [allegedly intervening case law], any change in the law with respect to the applicability of the career offender provision does not provide a basis for relief through a…2255 proceeding.

Id. at 651 (citations omitted).

         In the context of this particular case, I am constrained to find that Defendant has not established an exception to the general rule barring relitigation of issues, via ...


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