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Cooke v. United States

United States District Court, M.D. Pennsylvania

September 13, 2019

OMAR COOKE, Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          KANE JUDGE

         Presently before the Court is Petitioner Omar Cooke (“Petitioner”)'s motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. No. 1115), motion to withdraw his § 2255 motion (Doc. No. 1126), motion for clarification (Doc. No. 1127), an additional motion to vacate, set aside, or correct his sentence pursuant to § 2255 (Doc. No. 1129), memorandum and affidavit in support thereof (Doc. Nos. 1130, 1131), motion to appoint counsel (Doc. No. 1132), motion to amend his § 2255 motion (Doc. No. 1136), and Petitioner's response to the Court's June 28, 2019 Order directing him to show cause why his § 2255 motion should not be dismissed as untimely (Doc. No. 1153). For the reasons that follow, the Court will dismiss Petitioner's § 2255 motions as untimely and deny as moot Petitioner's remaining motions.

         I. BACKGROUND

         On July 25, 2012, a grand jury returned a second superseding indictment charging Petitioner with: conspiracy to distribute and possess with the intent to distribute cocaine hydrochloride, crack cocaine, and heroin; distribution and possession with the intent to distribute more than five (5) kilograms of cocaine hydrochloride and more than 280 grams of cocaine base; and conspiracy to possess firearms in furtherance of drug trafficking. (Doc. No. 102.) Paul J. Kovatch (“Attorney Kovatch”) represented Petitioner, who entered into plea negotiations with the Government, resulting in a plea agreement. (Doc. No. 590.) The agreement called for Petitioner to plead guilty to a superseding information (Doc. No. 591) charging him with conspiracy to distribute and possess with the intent to distribute cocaine hydrochloride (Doc. No. 590 ¶ 1). In the plea agreement, Petitioner and the Government agreed that Petitioner was responsible for more than five (5) kilograms and less than fifteen (15) kilograms of cocaine hydrochloride. (Id. ¶ 14.)

         On August 18, 2014, Petitioner appeared before Magistrate Judge Martin C. Carlson for a change of plea hearing. (Doc. No. 620.) Magistrate Judge Carlson concluded that Petitioner was fully competent to enter an informed plea, understood the consequences of his plea, that he was pleading guilty knowingly and voluntarily, and that the plea was supported by an independent basis in fact. (Id.) On that date, Magistrate Judge Carlson recommended that this Court accept Petitioner's guilty plea. (Id.) On September 8, 2014, the Court adopted Magistrate Judge Carlson's Report and Recommendation and accepted Petitioner's guilty plea. (Doc. No. 648.)

         The United States Probation Office prepared a Presentence Report (“PSR”), which concluded that Petitioner qualified as a career offender pursuant to § 4B1.1 of the Sentencing Guidelines because he had “at least two prior felony convictions of either a crime of violence or a controlled substance offense.” (PSR ¶ 23.) Specifically, the Probation Office noted that Petitioner had twice previously been convicted of a controlled substance offense. (Id. ¶¶ 31, 33.) With the career offender enhancement, Petitioner's offense level was 32, and he fell within criminal history category six (6). (Id. ¶¶ 23, 41.)

         The parties then appeared before the Court for Petitioner's sentencing on April 10, 2015. (Doc. No. 986.) The Court noted that Petitioner's total offense level of 32 and criminal history category of six (6) resulted in a Sentencing Guidelines range of 210 to 240 months of imprisonment. (Id. at 2.) Attorney Kovatch objected to the career offender calculation, arguing that Petitioner's criminal history category overrepresented his criminal history. (Id. at 2-4.) The Court overruled the objection, concluding that there was no question that Petitioner was a career offender. (Id. at 8.) Ultimately, the Court sentenced Petitioner to 188 months of incarceration. (Id. at 36; Doc. No. 819.) Petitioner did not appeal.

         On May 26, 2017, Petitioner, proceeding pro se, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 1115.) In that motion, Petitioner raises the following claims for relief:

Ground One: Petitioner's Fifth Amendment rights were violated when the Court applied the career offender provision without applying the categorical approach announced in Mathis v. United States, 136 S.Ct. 2243 (2016); Johnson v. United States, 135 S.Ct. 2551 (2015); and Descamps v. United States, 570 U.S. 254 (2013);
Ground Two: Trial and appellate counsel rendered ineffective assistance by failing to challenge the career offender classification; and
Ground Three: Petitioner's Fifth Amendment rights were violated when his base offense level was enhanced “by adding two levels for [his] placement [on] [p]robation in the [Commonwealth] of Pennsylvania.”

(Id. at 4-7.) Subsequently, on September 29, 2017, Petitioner filed a motion to withdraw his § 2255 motion, maintaining that he wished to file a new § 2255 motion and longer wished to rely upon his initial motion. (Doc. No. 1126.) On November 6, 2017, Petitioner filed a new § 2255 motion (Doc. No. 1129), asserting the following claims for relief:

Ground One: The Court did not “make a Rule 11 inquiry and did not tell [Petitioner he] had a right to a jury trial”;
Ground Two: Petitioner's attorney told him that he could not change his plea, and Petitioner learned that he could have under Rule 11;
Ground Three: Petitioner's attorney erroneously told him that he could not change his mind and go to trial; and
Ground Four: Petitioner's attorney failed to inform him that he had the right to be ...

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