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Warren v. United States

United States District Court, W.D. Pennsylvania

August 26, 2019

ATIBA WARREN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION

          MARK R. HORNAK, CHIEF UNITED STATES DISTRICT JUDGE

         Petitioner, 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.

         Having 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.

         I. BACKGROUND

         Following 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.

         Now 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 pro se.

         Upon 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. (Id.).

         Mr. 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 original).

         Mr. 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.

         Because 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.

         Having 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.

         The 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 filings.

         II. STANDARD OF REVIEW

         Under 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. 2005).

         III. ANALYSIS

         Mr. 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.

         a. Ground I: ACCA Predicate (Distribution of Heroin)

         Mr. 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.

         A prior 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).[1] 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).[2] 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.[3]

         There 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.

         Mr. 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)).

         Mr. 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.

         This 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 argument ...


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