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United States v. London

United States District Court, W.D. Pennsylvania

December 19, 2019

UNITED STATES
v.
ANTHONY LONDON

          OPINION AND ORDER

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

         SYNOPSIS

         On January 21, 2014, a jury convicted Defendant of violating 21 U.S.C. § 846. On January 8, 2015, he was sentenced to a term of imprisonment of 240 months, followed by a term of supervised release. Defendant appealed; the Court of Appeals affirmed by Judgment dated August 31, 2018. The mandate and opinion were filed on the District Court docket on January 7, 2019.[1] On December 6, 2018, Defendant filed a pro se Motion to Vacate pursuant to 28 U.S.C. § 2255 (“Section 2255”). Defendant asserts that his sentence was enhanced, based on an Information filed pursuant to 21 U.S.C. § 851 (“Section 851”) that failed to allege a qualifying felony drug offense. Defendant also challenges the sentencing Court's failure to conduct a colloquy required by Section 851. In addition to challenging the Court's actions in that regard, Defendant claims that his counsel was ineffective in dealing with these matters. For the following reasons, Defendant's Motion will be denied, and no certificate of appealability shall issue.

         OPINION

         A. SECTION 2255 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, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). The standard of proof in a Section 2255 proceeding is by a preponderance of the evidence. United States v. Ballard, No. 03-810, 2017 U.S. Dist. LEXIS 105766, at *10 n.5 (E.D. Pa. July 7, 2017). 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 Fed.Appx. 402 (3d Cir. 2004). Further, pro se pleadings are to be liberally construed, and I have considered Defendant's submissions accordingly. In this case, a hearing is unnecessary, and the Motion will be disposed of on the record.

         B. BACKGROUND

         On May 29, 2013, the Government filed an Information Charging Prior Offense (“Information”) pursuant to Section 851. Therein, the Government asserted that Defendant was previously convicted of a “felony drug offense, namely possession of cocaine for sale, section 11377, at court No. 184402A in the Superior Court of California.” The prior conviction at issue stemmed from a guilty plea entered on August 28, 1981, in Alameda County Superior Court. The plea resulted in a suspended sentence and three years' probation, entered on October 5, 1981. The Presentence Investigation Report prepared in the instant matter on April 23, 2014, referred to this prior conviction as “possession for Sale-Cocaine/Alameda County Superior Court, Oakland, CA.”

         Attached to the Information were a California criminal Complaint from the Municipal Court for the Oakland-Piedmont Judicial District, County of Alameda, dated May 12, 1981. The Complaint charged Defendant and two co-defendants with violating the Health and Safety Code of California § 11351 (“Section 11351”), “in that said defendants did then and there possess for sale a controlled substance, to-wit: COCAINE.”[2] Section 11351, entitled “Unlawful possession for sale, ” provided for a term of imprisonment of more than one year.[3]

         Also attached to the Information were a Minute Order re: Probation (“Minute Order”) and Certificate of Magistrate and Commitment (“Certificate”). The Certificate is dated August 28, 1981. The Certificate form provided a space following “defendant pleaded guilty to felony offense(s), to wit:”; the subsequent handwritten notation states, “section 11377 of the California Health and Safety Code.” The Minute Order, dated October 5, 1981, states that Defendant was convicted on August 28, 1981. The offense description is typed onto the form: “a felony, to wit, a violation of Section 1137 of the Health and Safety Code of California as charged in the Complaint - Oakland-Piedmont Judicial District.” The Certificate states, “defendant pleaded guilty to a felony offense(s) to wit: section 11377 of the California Health Safety Code.” The Minute Order reflects that the imposition of sentence was suspended for three years, during which time Defendant was placed on probation.[4]

         A. DEFENDANT'S MOTION

         As discussed supra, Defendant claims that the conviction relied on in the Information does not qualify as a “felony drug offense, ” and thus his sentence should not have been enhanced. Relatedly, Defendant challenges the sentencing Court's failure to conduct a colloquy pursuant to Section 851. Although Defendant's challenges rest, in part, on allegations of ineffective assistance of counsel, I will first address the underlying issues.

         1. PRIOR CONVICTION

         After a prior conviction for a “felony drug offense, ” Sections 841 and 851 may subject a defendant to an enhanced sentence. Federal law, which looks to the maximum penalty allowed by the state statute rather than the terminology used by the state, dictates whether a prior conviction qualifies under Section 841. See, e.g., United States v. Mitchell,625 ...


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