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United States v. Griffin

United States District Court, N.D. Florida, Tallahassee Division

February 9, 2018

UNITED STATES OF AMERICA,
v.
TERRY CONRAD GRIFFIN

          REPORT AND RECOMMENDATION

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court upon Petitioner's Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a person in Federal Custody and Memorandum in Support (ECF Nos. 78 & 79); the Government's Response (ECF No. 84); and Petitioner's Reply (ECF No. 88.) The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the Court concludes that Petitioner has not raised any issue requiring an evidentiary hearing and that the § 2255 Motion should be denied. See Rules 8(a) and (b) Governing § 2255 Cases.

         I. BACKGROUND

         On December 4, 2013, a grand jury returned a one-count indictment charging Petitioner with possession with intent to distribute cocaine and twenty-eight grams or more of a mixture and substance containing cocaine base, commonly known as “crack cocaine, ” in violation of Title 21, United States Code, Sections 841(a)(1), 841(b)(1)(B)(iii), and 841(b)(1)(C). (ECF No. 1.) On December 11, 2013, Petitioner appeared before the Court and was arraigned on the charges and detained pending trial. (ECF Nos. 6-12.)

         Petitioner pleaded guilty pursuant to a plea bargain agreement, which United States District Judge Mark E. Walker accepted on January 28, 2014. (ECF Nos. 16-18.) Upon entry of the guilty plea, the United States Probation Office prepared a Presentence Investigation Report (“PSR”). (ECF No. 29.) The PSR reflected that Petitioner had a base-offense level of 26. Id. at ¶ 19. The PSR further applied a career-offender enhancement under § 4B1.1 because the offense was a felony controlled-substance offense, and Petitioner has at least two prior felony convictions that qualify as either a crime of violence or a controlled-substance offense: a 2004 conviction for sale of cocaine within 1, 000 feet of a church in Cause No. 04- CF-177; a 2010 conviction for possession of cocaine with intent to sell or deliver in Cause No. 09-CF-437; and a 2011 conviction for sale of cocaine in Cause No. 10-CF-446. Id. at ¶ 25. After adjustments for acceptance of responsibility, Petitioner's total-offense level was 31. Id. at ¶ 28. Petitioner's criminal history category was VI. Id. at ¶ 38. Pursuant to 21 U.S.C. § 841(b)(1)(B)(iii), Petitioner had a mandatory minimum term of imprisonment of five years and a maximum term of forty years. Id. at ¶ 65. The applicable Guidelines range was 188 to 235 months of imprisonment. Id. at ¶ 66.

         On July 10, 2014, Judge Walker sentenced Petitioner to 120 months of imprisonment, a four-year term of supervised release, and a $100 Special Monetary Assessment. (ECF No. 44.) The Court entered the judgment against Petitioner on July 14, 2014. (ECF No. 45.) Petitioner did not appeal his conviction to the Eleventh Circuit Court of Appeals, however, he did file a series of post-conviction motions.

         First, Petitioner filed a “Motion for Modification Of Sentence Because Defendant Was Only Branded a Career Criminal But Not Sentenced As Such and the Government Failed to Include In The Indictment Defendant's Prior Three Felony Convictions.” (ECF No. 51.) The Court denied the Motion on November 3, 2014 (ECF No. 54), and Petitioner appealed the Court's ruling to the Eleventh Circuit Court of Appeals. The Eleventh Circuit dismissed the appeal for failure to prosecute on March 11, 2016. (ECF No. 77.)

         Next, Petitioner filed a “Second Motion for Reduction of Sentence Under The Fair Sentencing Act (FSA)” on November 30, 2015. (ECF No. 61.) However, the Court denied the motion on December 15, 2015, having found that the FSA was properly applied in this case. (ECF No. 65.)

         Petitioner then filed a Motion for Rehearing on December 22, 2015, which the Court construed as a Motion for Reconsideration of its denial of Petitioner's Second Motion for Reduction of Sentence Under The FSA. (ECF No. 68.) The Court denied the Motion for Reconsideration by order dated December 31, 2015. (ECF No. 69.) Petitioner appealed the denial of the Motion for Reconsideration to the Eleventh Circuit Court of Appeals (ECF No. 74), however the Eleventh Circuit dismissed the appeal for want of prosecution on February 19, 2016. (ECF No. 76.)

         On April 20, 2016, Petitioner filed the instant pro se Motion pursuant to § 2255. In his sole ground for relief, Petitioner argues that his career-offender sentence enhancement pursuant to § 4B1.1 of the Sentencing Guidelines is unlawful after Descamps v. United States, 133 S.Ct. 2276 (2013), Donawa v. United States Attorney General, 735 F.3d 1275 (11th Cir. 2013), and Mays v. United States, 817 F.3d 728, 730-31 (11th Cir. 2016), because his prior convictions-violations of Fla. Stat. § 893.13-are not “controlled-substance offense[s]” within the meaning of § 4B1.2(b).

         II. ANALYSIS

         A. General Legal Standard

         Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to Section 2255 are extremely limited. A prisoner is entitled to relief under Section 2255 if the court imposed a sentence that: (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 'is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.”Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation Ahas probably resulted in the conviction of one who is actually innocent . . . .”

         An evidentiary hearing is unnecessary when Athe motion and files and records conclusively show that the prisoner is entitled to no relief.” See 28 U.S.C. § 2255(b); Rosin, 786 F.3d at 877; Gordon v. United States, 518 F.3d 1291, 1301 (11th Cir. 2008). Not every claim of ineffective assistance of counsel warrants an evidentiary hearing. Gordon, 518 F.3d at 1301 (citing Vick v. United States, 730 F.2d 707, 708 (11th Cir. 1984)). To be entitled to a hearing, a defendant must allege facts that, if true, would prove he is entitled to relief. See Hernandez v. United States, 778 F.3d 1230, 1234 (11th Cir. 2015). A hearing is not required on frivolous claims, conclusory allegations unsupported by specifics, or contentions that are wholly unsupported by the record. See Winthrop-Redin v. United States, 767 F.3d 1210, 1216 (11th Cir. 2014) (explaining that Aa district court need not hold a hearing if the allegations [in a ' 2255 motion] are . . . based upon unsupported generalizations” (internal quotation marks omitted); Peoples v. Campbell, 377 F.3d 1208, 1237 (11th Cir. 2004). Even affidavits that amount to nothing more than conclusory allegations do not warrant a hearing. Lynn, 365 F.3d at 1239. Finally, disputes involving purely legal issues can be resolved by the court without a hearing.

         B. ...


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