United States District Court, W.D. Pennsylvania
R. HORNAK, CHIEF UNITED STATES DISTRICT JUDGE
Atiba Warren ("Mr. Warren"), brings a motion to
vacate his sentence pursuant to 28 U.S.C. § 2255. Among
other things, Mr. Warren alleges that he was misclassified as
an armed career criminal under the Armed Career Criminal Act
("ACCA"), 19 U.S.C. § 924(e), that his
attorney was ineffective by not adequately arguing that Mr.
Warren was not an armed career criminal, and that the
warrantless search of his residence violated the Fourth
Amendment. The Government opposes Mr. Warren's motion.
reviewed the filings of Mr. Warren and the Government, as
well as the record in the case, the Court concludes that no
evidentiary hearing will be held on the matters asserted in
Mr. Warren's original and amended motions to vacate
because the filings and record of the case conclusively
demonstrate that Mr. Warren is not entitled to relief on
these grounds. These grounds will be denied with prejudice.
However, the Court will grant Mr. Warren's request to
amend his petition in light of Rehaif v. United
States, 139 S.Ct. 2191 (2019), which was decided after
Mr. Warren filed his first amended petition. The Federal
Public Defender shall be appointed to represent Mr. Warren as
to this claim.
a jury trial in 2015, Mr. Warren was convicted of possession
of a firearm by a convicted felon in violation of 18 U.S.C.
§ 922(g)(1). Based on the presentence investigation
report prepared by the United States Probation Office, and
upon consideration of the objections raised by Mr.
Warren's attorney and the responses by the Government,
the Court concluded that Mr. Warren's prior convictions
qualified him as an armed career criminal under the Armed
Career Criminal Act ("ACCA"), 18 U.S.C. §
924(e), which subjected him to ACCA's mandatory
sentencing enhancement. (Am. Tentative Findings at 3, ECF No.
206). Mr. Warren was sentenced to a prison term of 192 months
on September 12, 2016, (Judgment, ECF No. 208), and he timely
appealed his conviction to the Third Circuit. United
States v. Warren, 723 Fed.Appx. 155 (3d Cir. 2018). On
appeal, Warren contended that the search of his home violated
the Fourth Amendment and that two of his three prior
convictions should not have been considered predicate
offenses under ACCA. The Third Circuit rejected each of these
contentions and upheld Warren's conviction and sentence.
Warren, 723 Fed.Appx. at 166. Mr. Warren petitioned
for rehearing en banc, and his petition was denied
on July 3, 2018. (Order, United States v. Warren,
No. 16-3604 (3d Cir. July 3, 2018)). Mr. Warren did not file
a petition for writ of certiorari in the Supreme
Court of the United States.
before the Court is Mr. Warren's Motion to Vacate under
28 U.S.C. § 2255 (ECF No. 245), Mr. Warren's Motion
to Appoint Counsel (ECF No. 250), Mr. Warren's Amended
Motion to Vacate under 28 U.S.C. § 2255 (ECF No. 251),
and Mr. Warren's Motion to Amend/Correct his Motion to
Vacate (ECF No. 255). Mr. Warren filed all of these motions
receipt and review of Mr. Warren's original Motion to
Vacate (ECF No. 245), the Court issued Mr. Warren a Notice
pursuant to United States v. Miller, 197 F.3d 644,
649 (3d Cir. 1999), on January 22, 2019. (ECF No. 247). The
Court notified Mr. Warren that the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub.
L. No. 104-132, 110 Stat. 1214, amended 28 U.S.C. § 2255
so as to bar "second or successive habeas petitions
absent exceptional circumstances and certification by the
appropriate court of appeals." (ECF No. 241 at 1-2)
(quoting Miller, 197 F.3d at 649). The Court further
notified Warren that 28 U.S.C. § 2255 now requires all
petitioners to raise all claims for relief and materials to
be considered in support thereof within the one-year
statutory period in 28 U.S.C. § 2255. (ECF No. 241 at
2). Accordingly, the Court instructed Mr. Warren to elect
whether to 1) withdraw the pending § 2255 motion in
order to file a new § 2255 motion within the statutory
term; 2) amend his § 2255 motion within 120 days after
Warren informs the Court that he wishes to amend; or 3) have
the Court adjudicate the § 2255 motion as then-filed.
Warren timely responded to the Miller notice by
filing a motion in which he asked the Court to appoint an
attorney to "help" him with the § 2255 motion
and in which he stated that he "elect[s] to present an
amendment to the 2255 on record." (ECF No. 248). The
Court denied Warren's Motion to Appoint Counsel without
prejudice because the facts and allegations raised in his
Motion to Vacate (ECF No. 245), as then-filed, facially did
not appear to entitle him to relief. (ECF No. 249 at 2-3).
Therefore, the Court concluded that the interests of justice
did not require the appointment of counsel at that time.
See 18 U.S.C. § 3006A(a)(2)(B). The Court also
construed Mr. Warren's filing as an election to amend his
Motion to Vacate, and instructed Mr. Warren to "file any
amendment and/or supplemental materials to his § 2255
Motion on or before June 4,
2019" (ECF No. 249 at 3) (emphasis in
Warren timely submitted an amended Motion to Vacate (ECF No.
251) and renewed his Motion to Appoint Counsel (ECF No. 250).
The Court directed the Government to respond to Warren's
amended Motion to Vacate and the Court deferred ruling on his
renewed Motion to Appoint Counsel pending the
Government's response. (ECF No. 252). The Government
responded on August 14, 2019. (ECF No. 259). Prior to the
Government filing its Response, Mr. Warren filed a Motion to
Amend/Correct his Motion to Vacate, (ECF No. 255), in light
of Rehaif v. United States, 139 S.Ct. 2191 (2019),
which was decided by the Supreme Court on June 21, 2019.
Mr. Warren has been proceeding pro se in this
matter, the Court will liberally construe his pleadings and
filings. See Estelle v. Gamble, 429 U.S. 97, 106
(1976). As part of this liberal construction, the Court will
consider all of the arguments and grounds raised in Mr.
Warren's filings at ECF No. 245 and ECF No. 251 to
constitute one comprehensive Motion to Vacate under §
2255. As such, any reference to the "Motion to
Vacate" herein shall be understood to collectively refer
to Mr. Warren's original Motion to Vacate (ECF No. 245)
and his amended Motion to Vacate (ECF No. 251), unless the
original Motion to Vacate or the amended Motion to Vacate is
specifically referenced by its ECF number on the docket.
reviewed the materials of record and the filings in this
matter, the Court concludes that the facts and allegations
raised in Mr. Warren's Motion to Vacate, taken as true,
would not entitle Mr. Warren to relief. For this reason and
the reasons that follow, the grounds raised Warren's
Motion to Vacate (ECF No. 245) and amended Motion to Vacate
(ECF No. 251) will be denied with prejudice.
Court will also, however, grant Mr. Warren's Motion to
Amend/Correct at ECF No. 255 and consider his additional
ground for relief, premised on Rehaif v. United
States, 139 S.Ct. 2191 (2019), to be timely raised. Mr.
Warren's Motion to Appoint Counsel (ECF No. 250) will be
granted in part and denied in part. The Federal Public
Defender will be appointed to represent Mr. Warren in this
matter, and will be granted leave to supplement and expand
upon his claims based on Rehaif. The Government will
be granted leave to respond to Mr. Warren's counseled
STANDARD OF REVIEW
28 U.S.C. § 2255, a prisoner in federal custody may
collaterally attack a sentence if "the sentence was
imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to
impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to
collateral attack." 28 U.S.C. § 2255(a). An
evidentiary hearing is required for a § 2255 motion
unless the filings and record of the case conclusively
demonstrate that the petitioner is not entitled to relief. 28
U.S.C. § 2255(b); see also Gov't of the Virgin
Islands v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). It is
a relatively light burden for a petitioner to demonstrate
that an evidentiary hearing is warranted. See United
States v. Askew, No. 09-64, 2010 WL 324447, at *5 (W.D.
Pa. Jan. 21, 2010). In determining whether an evidentiary
hearing is required, "the court must accept the truth of
the movant's factual allegations unless they are clearly
frivolous on the basis of the existing record."
United States v. Booth, 432 F.3d 542, 545 (3d Cir.
Warren raises four grounds for relief in his original Motion
to Vacate (ECF No. 245). Warren further briefed three of
these grounds in his supplemental/amended Motion to Vacate
(ECF No. 251). The Court will address these grounds
seriatim, and then take up Mr. Warren's
additional pending motions.
Ground I: ACCA Predicate (Distribution of Heroin)
Warren argues that his prior conviction for distribution of
heroin under Maryland law does not qualify as a "serious
drug offense" under 19 U.S.C. § 924(e)(2)(A)(ii)
for ACCA purposes. If an element of a prior crime of
conviction reaches more broadly and covers more conduct than
the analogous generic offense under federal law, that prior
conviction cannot be a predicate offense under ACCA.
Mathis v. United States, 136 S.Ct. 2243, 2248
(2016). If the statute is indivisible, the facts of
the defendant's prior conviction are immaterial-only the
elements are to be considered. Id.
state conviction qualifies as a "serious drug
offense" under ACCA if it involves "manufacturing,
distributing, or possessing with intent to manufacture or
distribute, a controlled substance ... for which a maximum
term of imprisonment of ten years or more is prescribed by
law." 19 U.S.C. § 924(e)(2)(A)(ii). Mr. Warren argues
that Maryland's "distribute" element is broader
than the comparable federal element, and that this portion of
the statute is indivisible. In support, Petitioner cites to a
Maryland treatise with pattern jury instructions,
see David E. Aaronson, Maryland Criminal Jury
Instructions and Commentary § 7.46 (2017 ed.), and one
intermediate appellate decision from the Maryland Court of
Special Appeals, see Rosenberg v. State, 276 A.2d
708, 710 n.1(Md. Ct. Spec. App. 1971). In Warren's
view, both of these authorities establish that, under
Maryland law, mere offers to deliver a controlled substance
satisfy the "distribute" element of Article 27
section 286 of the Maryland Criminal Code, the statute under
which Warren was convicted.
are a number of independent bases for the Court to reject
this contention. First, this very same argument was raised
before, and rejected by, the Third Circuit on Mr.
Warren's direct appeal of his conviction.
Warren, 723 Fed.Appx. at 165-66. "[I]ssues
resolved in a prior direct appeal will not be reviewed again
by way of a § 2255 motion." United States v.
Travillion, 759 F.3d 281, 288 (3d Cir. 2014) (citing
United States v. DeRewal, 10 F.3d 100, 105 n.4 (3d
Cir. 1993)); United States v. Sanford, No. 03-cr-15,
2010 WL 11507821, at *4 (W.D. Pa. Sept. 30, 2010) ("It
has long been settled under Third Circuit law that a
petitioner generally cannot use 28 U.S.C. § 2255 to
relitigate an issue litigated on direct appeal.")
(citing DeRewal, 10 F.3d at 105 n.4; Sonneberg
v. United States, No. 01-2067, 2003 WL 1798982, (3d Cir.
Jan. 14, 2003); Gov't of the Virgin Islands v.
Nicholas, 759 F.2d 1073, 1074 (3d Cir. 1985)). This
ground for relief is thus barred as such an attempt to
relitigate a settled issue.
Warren did not raise this particular argument before
this Court during his sentencing, but this does not disturb
the Court's conclusion here. First, Mr. Warren did raise
the issue by challenging the applicability of his
heroin conviction as an "serious drug offense"
under other theories, and the Court considered and rejected
these contentions in the Court's Amended Tentative
Findings. (Am. Tentative Findings at 12-13). Second, and more
importantly, Warren could have raised this argument
during his sentencing. A § 2255 petitioner will
ordinarily procedurally default on claims that could have
been raised on direct review unless the petitioner can
demonstrate that he is actually innocent or that there was a
valid cause for, and actual prejudice resulting from, the
procedural default. Hodge v. United States, 554 F.3d
372, 378-79 (3d Cir. 2009) (citing Bousley v. United
States, 523 U.S. 614, 621 (1998)).
Warren does not claim that he is actually innocent, nor does
he assert that there was a valid cause for neglecting to
raise these arguments during his sentencing. And, in any
event, the Court would conclude that Warren would not have
been prejudiced by a failure to raise this argument on
review. The Third Circuit reviewed Mr. Warren's arguments
regarding his heroin distribution conviction under the plain
error standard, but nonetheless considered the merits of his
arguments. Warren, 723 Fed.Appx. at 165-66. The
Third Circuit analyzed the Maryland case that Warren cited in
support, Rosenberg, and concluded that its
"convoluted and attenuated reasoning reaches the wrong
result at least in extending the definition of
"distribute" to include an "offer.""
Warren, 723 Fed.Appx. at 165 (discussing
Rosenberg, 276 A.2d at 710 n.1). And, as the Third
Circuit observed, the jury instructions treatise that Warren
relied on derived its instruction from Rosenberg,
"rendering it just as problematic as a source." 723
Fed.Appx. at 166. So, the only independent source of judicial
authority for Mr. Warren's argument came from a single
intermediate appellate court decision from nearly fifty years
ago that employed "convoluted and attenuated"
reasoning. Id. For these reasons, and after sound
independent analysis, the Third Circuit predicted that the
Maryland Court of Appeals would conclude that
"distribution" of heroin under Maryland law would
not include an "offer to deliver." Id.
Court concludes that there is no basis to now vary from the
Third Circuit's analysis and conclusions. Mr. Warren
could not have been prejudiced by any failure to raise this