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Cook v. United States

United States District Court, N.D. Alabama, Southern Division

May 23, 2018




         This case is before the court on Petitioner's Motion to Vacate. (No. 2:16-cv-08158-RDP (“Habeas Docket”), Doc. # 1). Petitioner's appointed habeas counsel filed a supplemental brief on his behalf. (Id., Doc. # 5). Respondent has responded to the Motion to Vacate and asks the court to deny relief on the merits. (Id., Doc. # 9). And, Petitioner's habeas counsel replied to the Respondent's brief. (Doc. # 10).

         Petitioner's motion seeks review of the sentence enhancement applied during Petitioner's March 2005 sentencing, pursuant to the Armed Career Criminal Act (“ACCA”). The Eleventh Circuit has granted Petitioner leave to file a second or successive motion to vacate regarding this enhancement in light of the Supreme Court's opinion in Johnson v. United States, 135 S.Ct. 2551 (2015). The court has carefully reviewed Petitioner's arguments for relief, and concludes that his arguments fail because he has not shown that the court utilized the ACCA's residual clause to enhance his mandatory minimum sentence. Therefore, Petitioner's Motion to Vacate (Habeas Docket, Doc. # 1) is due to be dismissed with prejudice.

         I. Factual and Procedural Background

         In 2003, a grand jury indicted Petitioner on one charge of being a felon in possession of a firearm, in violation 18 U.S.C. § 922(g)(1). (No. 2:03-cr-00545-RDP-TMP (“Criminal Docket”), Doc. # 1). In 2004, a jury convicted Petitioner of the offense. (Id., Doc. # 44).

         Petitioner's presentence investigation report (“PSR”) discussed eight criminal convictions, three of which are relevant to this motion. (Criminal Docket, Doc. # 56 at ¶¶ 27-34). First, in 1972, Petitioner pled guilty in Alabama state court to assault with intent to murder and assault with intent to ravish. (Id. at ¶ 28). The PSR explained that Petitioner assaulted one victim with intent to commit murder and “forcibly ravished” a second victim. (Id.). The PSR indicated that both criminal acts occurred on March 6, 1970. (Id.). Second, in 1974, Petitioner pled guilty to robbery in Alabama state court. (Id. at ¶ 29). The PSR stated that he took money against the victim's will “by violence.” (Id.). Third, in 1983, Petitioner pled guilty to first degree assault. (Id. at ¶ 33). The PSR explained that he had “engaged in sexual intercourse . . . by forcible compulsion” with the victim. (Id.).

         The PSR classified the 1972, 1974, and 1983 convictions as violent felonies under 18 U.S.C. § 924(e)(2)(B). (Id. at ¶¶ 23, 28, 29, 33). It utilized this form language to explain the reasons for classifying these assault and robbery convictions as violent felonies:

NOTE: This is a violent felony necessary for application of the enhanced penalties at 18 U.S.C. § 924(e)(1). This conviction meets the criteria for “violent felony” within the meaning of 18 U.S.C. § 924(e)(2)(B) because it is a crime punishable by imprisonment for a term exceeding one year, and it was committed on an occasion different from others, i.e., the offense was separated by a meaningful opportunity to desist activity before committing the other offense; it has, as an element, the use, attempted use, or threatened use of physical force against the person of another; and it otherwise involves conduct that presented a serious potential risk of physical injury to another. See also 4B1.4, comment. (n.1) regarding time periods.

(Id. at ¶¶ 28, 29, 33) (emphasis in original). The PSR stated that Petitioner had “three felonies which were committed on occasions different from one another for purposes of 18 U.S.C. § 924(e)(1).” (Id. at ¶ 23). Because Petitioner was an armed career criminal under U.S.S.G. § 4B1.4, the PSR increased his offense level from 16 to 33. (Id. at ¶¶ 22-23). And, it asserted that Petitioner faced a mandatory minimum sentence of fifteen years' imprisonment under 18 U.S.C. § 924(e)(1). (Id. at ¶ 75).

         At sentencing, Petitioner's trial counsel challenged another aspect of the PSR's guidelines calculation, but did not object to its armed career criminal enhancement or its recommendation of a fifteen year mandatory minimum sentence. (See Criminal Docket, Doc. # 64 at 3-11). The prosecutor submitted certified copies of the four criminal convictions against Petitioner in 1972, 1974, and 1983. (Id. at 11-14). Petitioner's trial counsel did not object to their admission. (Id. at 14). The court adopted the PSR's factual statements regarding the guidelines calculation and its recommended guidelines range of 188 to 235 months' imprisonment. (Id. at 16-17). The court sentenced Petitioner to 200 months' imprisonment. (Id. at 25-26).

         On direct appeal, Petitioner's appointed counsel moved to withdraw from representing him, pursuant to Anders v. California, 386 U.S. 738 (1967). United States v. Cook, 175 Fed.Appx. 273, 273 (11th Cir. 2006). The Eleventh Circuit independently reviewed the trial court's record and found no arguable issues of merit. Id. at 273-74. Accordingly, in March 2006, the Eleventh Circuit granted counsel's motion to withdraw and affirmed Petitioner's conviction and sentence. Id. at 274.

         In May 2007, Petitioner filed his initial motion to vacate and challenged the ACCA enhancement. (No. 2:07-cv-08015-RDP-TMP, Doc. # 1 at 7-8). In that motion to vacate, Petitioner summarily argued that he had not committed a violent crime “which would justify a conviction and sentence as an ‘armed career criminal.'” (Id. at 7). A Magistrate Judge recommended denying the ACCA claim because Petitioner had procedurally defaulted the claim when he failed to raise it on appeal. (Id., Doc. # 7 at 7-8). In addition, the Magistrate Judge recommended denying the ACCA claim on the merits because Petitioner did “not dispute that his criminal history included the requisite prior convictions.” (Id. at 8). The court adopted the Magistrate Judge's recommendations and denied Petitioner's motion to vacate with prejudice. (Id., Docs. # 9 & 10). In April 2010, the Eleventh Circuit denied Petitioner a certificate of appealability to contest the denial of his initial motion to vacate. (Id., Doc. # 16).

         In July 2016, following the Supreme Court's Johnson opinion, the Eleventh Circuit granted Petitioner leave to file a second or successive motion to vacate. (Criminal Docket, Doc. # 79). The Eleventh Circuit discussed at length the merits of Petitioner's ACCA challenge, and the additional inquiries that this court would need to conduct.

It appears to us that Cook's conviction for first degree assault likely qualifies as a violent felony without regard to the ACCA's residual clause. In Alabama, one commits first degree assault by: (1) causing serious physical injury to any person by means of a deadly weapon or dangerous instrument (with intent to cause such injury); (2) causing serious and permanent disfigurement or destroying, amputating or permanently disabling a member or organ of any person (with intent to cause such injury); (3) causing serious physical injury to another person by recklessly engaging in conduct creating a grave risk of death to another person, under circumstances manifesting extreme indifference to the value of human life; or (4) causing serious physical injury to another person in the course of and in furtherance of the commission of certain enumerated crimes or while driving under the influence of alcohol or ...

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