United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE
the court for disposition is Defendant Kareem Shabazz's
motion to vacate and correct his sentence under 28 U.S.C.
§ 2255. Defendant seeks relief from a sentence imposed
under the Armed Career Criminal Act (hereinafter
“ACCA”) and federal “Three Strikes
Law” (hereinafter “TSL”). The applicability
of these statutes, and their mandatory minimum sentences,
hinges on whether defendant's prior robbery convictions
from New York state amount to “violent felonies”
under federal law. The motion has been fully briefed and is
ripe for disposition.
United States brought charges against Defendant Shabazz
related to a robbery at the M&T Bank in Hanover Township,
Pennsylvania. At the conclusion of a four-day trial, on May
4, 2012, a jury convicted defendant of the following charges:
Count 1 -Brandishing a Firearm During and in Relation to a
Crime of Violence, 18 U.S.C. § 924(o); Count 2 - Bank
Robbery, 18 U.S.C. § 2113(d) and 2; Count 3 - Using a
Firearm in Furtherance of a Crime of Violence, 18 U.S.C.
§ 924(c) and 2; Count 4 - Possession of Firearm by a
Person Convicted of a Crime Punishable by Imprisonment
Exceeding One Year, 18 U.S.C. § 922(g)(1) and §
924(e); and Count 5 - Transportation of a Firearm in
Interstate Commerce, 18 U.S.C. § 924(b) and 2. (Doc.
court sentenced defendant to a term of life imprisonment on
Counts 1, 2, and 5, and one hundred eighty (180) months (that
is fifteen years) on Count 4 to run concurrently with the
sentences on Counts 1, 2 and 5. On Count 3, the court imposed
another life sentence to be served consecutively to the terms
imposed on Counts 1, 2, 4, and 5. (Doc. 133, Judgment). The
court imposed the life sentences pursuant to the TSL and the
fifteen-year sentence as a mandatory minimum under the ACCA.
These statutes were invoked due to the defendant's prior
state court criminal convictions. Defendant now argues that
the sentences are unconstitutional under the Supreme
Court's decision in Johnson v. United States, __
U.S. __, 135 S.Ct. 2551 (2015).
appealed his conviction to the United States Court of Appeals
for the Third Circuit. (Doc. 139, Notice of Appeal). The
Third Circuit affirmed his conviction on August 8, 2013.
(Doc. 163, Doc. 164, Judgment and Mandate of the United
States Court of Appeals); 533 Fed.Appx. 158 (3d Cir. 2013).
Defendant then filed a petition for a writ of certiorari with
the United States Supreme Court, which was denied on December
16, 2013. Shabazz v. United States, 134 S.Ct. 832
then filed a pro se motion under 28 U.S.C. §
2255 to vacate, set aside or correct sentence. We denied that
motion on February 17, 2016. (Doc. 177). On June 24, 2016,
the defendant filed a counseled motion to vacate, set aside
or correct sentence under 28 U.S.C. § 2255. This motion
raised arguments based upon the Supreme Court decision in
Johnson v. United States, - - U.S. - -, 135 S.Ct.
2551 (2015). Defendant also filed a motion with the Third
Circuit Court of Appeals pursuant to 28 U.S.C. § 2244 to
file a second or successive motion under 28 U.S.C. §
2255. We stayed his motion in this court, until the Third
Circuit ruled upon his motion to file a second or successive
section 2255 motion. (Doc. 192).
Third Circuit granted defendant leave to file a second or
successive section 2255 motion on August 11, 2016, and we
lifted the stay on September 2, 2016. (Doc. 195). Because the
appeals courts were clarifying aspects of the law involved in
this case, we granted several stays. The parties then completed
briefing the issues, and the matter is now ripe for decision.
defendant brings his motion under section 2255 with
permission from the Court of Appeals to file a second or
subsequent 2255 motion, we have jurisdiction under 28 U.S.C.
§ 1331 (“The district courts shall have original
jurisdiction of all civil actions arising under the
Constitution, laws, or treaties of the United
States.”). We also have jurisdiction under 28 U.S.C.
§ 2241 (“Writs of habeas corpus may be granted by
. . . the district courts[.]”).
Generally, a federal prisoner in custody under the sentence
of a federal court may, within one year from when the
judgment becomes final, move the sentencing court to
“vacate, set aside, or correct” a sentence
“imposed in violation of the Constitution or laws of
the United States.” 28 U.S.C. § 2255(a). A federal
prisoner may also file a section 2255 motion within one year
from “[t]he date on which the right asserted was
initially recognized by the Supreme Court, if that right was
newly recognized by the Supreme Court and made retroactively
applicable to cases on collateral review.” 28 U.S.C.
§ 2255(f)(3). A section 2255 motion may attack a federal
prisoner's sentence on any of the following grounds: (1)
the judgment was rendered without jurisdiction; (2) the
sentence imposed was not authorized by law or otherwise open
to collateral attack; or (3) there has been such a denial or
infringement of the Constitutional rights of the prisoner as
to render the judgment vulnerable to collateral attack. 28
U.S.C. § 2255(b).
2255 does not, however, afford a remedy for all errors that
may have been made at trial or sentencing. United States
v. Essig, 10 F.3d 968, 977 n. 25 (3d Cir. 1993). Rather,
section 2255 permits relief for an error of law or fact
constituting a “fundamental defect which inherently
results in complete miscarriage of justice.” United
States v. Eakman, 378 F.3d 294, 298 (3d Cir. 2004)
(citing United States v. Addonizio, 442 U.S. 178,
185 (1979)). If the court determines that the sentence was
not authorized by law, was unconstitutional, or is otherwise
open to collateral attack, the court may vacate the judgment,
resentence the prisoner, or grant the prisoner a new trial as
appropriate. See 28 U.S.C. § 2255(b).
noted above, the defendant received mandatory sentences under
the ACCA and the TSL. The sentencing is at issue currently,
thus, we will describe with more particularity the sentence
in this case.
jury found defendant guilty of the following:
Count 1 - Brandishing a Firearm During and in Relation to a
Crime of Violence, 18 U.S.C. § 924(o);
Count 2 - Bank Robbery, 18 U.S.C. § 2113(d) and 2;
Count 3 - Using a Firearm in Furtherance of a Crime of
Violence, 18 U.S.C. § 924(c) and 2;
Count 4 - Possession of Firearm by a Person Convicted of a
Crime Punishable by Imprisonment Exceeding One Year 18 U.S.C.
§ 922(g)(1) and § 924(e); and
Count 5 - Transportation of a Firearm in Interstate Commerce,
18 U.S.C. § 924(b) and 2.
federal TSL provides for mandatory life imprisonment upon the
third conviction of a serious violent felony. 18 U.S.C.
to trial the United States filed an “Information of
Prior Convictions Notifying Defendant of Intention to Seek
Mandatory Life Imprisonment, ” which informed the
defendant that the government would seek mandatory life
imprisonment under the TSL on Counts 1, 2, 3 and 5. (Doc.
95). The information indicated that defendant had been
convicted of the following prior charges:
1) Robbery 1 and Criminal Possession of Stolen Property, New
York state, 1976;
2) Robbery 1, Grand Larceny 3, Escape 1 and Criminal
Possession of a Weapon 4, New York state, 1983;
3) Criminal Possession of a Weapon 2nd Degree,
Robbery 1st degree, Robbery 1st degree,
attempted murder 2nd degree, attempted murder
2nd degree, criminal possession of a Weapon
2nd Degree, Criminal Possession of a Weapon
2nd Degree, 1988.
(Doc. 95, Govt's Information of Prior Convictions).
Presentence Report used the second and third of these three
prior offenses as a justification to impose the TSL and its
mandatory life sentence. (PSR ¶ ¶ 38, 51, 52). The
Presentence Report also suggested that defendant is an armed
career criminal due to three prior convictions for violent
felonies under 18 U.S.C. § 924(c). (PSR ¶ 76). The
defendant's motion challenges all of these findings. We
will address them all in turn.
court sentenced the defendant as a “career
criminal” under the United States Sentencing Guidelines
(hereinafter “USSG”) § 4B1.2(a)(2). The
instant petition originally argued that defendant's
classification as a “career criminal” is not
proper, and therefore, his sentence should be vacated. In his
reply brief, however, the defendant concedes that he is not
entitled to any relief on this issue.
court also sentenced the defendant under the ACCA. The ACCA
mandates a minimum fifteen-year prison sentence for a
defendant who possessed a firearm after three prior
convictions for serious drug offenses or violent felonies
committed on different occasions. 18 U.S.C. § 924(e).
These prior convictions are termed “predicate
offenses.” The court applied this enhancement to Count
4 - Possession of Firearm by a Person Convicted of a Crime
Punishable by Imprisonment Exceeding One Year, 18 U.S.C.
§ 922(g)(1) and § 924(e).
attacks this sentencing enhancement on the basis that,
although he has several New York state robbery convictions,
they do not amount to predicate offenses under the ACCA.
After a careful review, we agree in that the New York robbery
statute does not categorically ...