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Phelps v. United States

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

May 3, 2019

JAMES L. PHELPS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS, UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Petitioner James L. Phelps' Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Doc. 168) and the Government's Motion to Dismiss in response thereto. (Doc. 174). This action was referred to the undersigned Magistrate Judge for report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration.[1] Having carefully reviewed the record, the undersigned finds that no evidentiary hearing is necessary for the disposition of this matter.[2] Upon consideration, the undersigned hereby recommends that Phelps' Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 168) be DENIED, that Respondent's Motion to Dismiss (Doc. 174) be GRANTED, that this action be DISMISSED, and that judgment be entered in favor of Respondent, the United States of America, and against Petitioner, James L. Phelps. The undersigned also recommends that should Phelps file a certificate of appealability, it should be denied as he is not entitled to appeal in forma pauperis.

         I. PROCEDURAL BACKGROUND

         Petitioner James L. Phelps was indicted on December 27, 2006, on three drug-related counts, namely: (1) conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846; (2) possession with the intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1); and (3) possession of pseudoephedrine with the intent to manufacture methamphetamine, in violation of 21 U.S.C. § 841(c)(1) . (Doc. 1). On March 19, 2007, Phelps entered a guilty plea to Count One of the indictment, conspiracy to manufacture methamphetamine, in violation of 21 U.S.C. § 846, pursuant to a plea agreement. (Doc. 32).

         On July 23, 2007, the United States Probation and Pretrial Services System generated a presentence investigation report detailing Phelps' criminal history. (Doc. 46). Included in that history were a 1993 conviction for conspiracy to possess with intent to distribute LSD in the Southern District of Alabama and a 2003 conviction for attempted unlawful possession of anhydrous ammonia in the Circuit Court of Baldwin County, Alabama. (Id. at 11-12). Based on his current and previous convictions, Phelps was designated a career offender pursuant to United States Sentencing Guidelines (“U.S.S.G.”) § 4B1.1. (Id. at 9, 14).

         On July 23, 2007, Phelps was sentenced to 188 months incarceration. (Doc. 47 at 2). He did not appeal his sentence.

         On September 10, 2010, Phelps filed his first motion seeking collateral relief under 28 U.S.C. § 2255. (Doc. 130). In that petition, Phelps argued that he was improperly sentenced as a career offender under the sentencing guidelines because his conviction in the Baldwin County Circuit Court should not have counted as one of the convictions that led to his career offender designation. (Id. at 2). After re-filing his petition on the Court's required forms on October 5, 2010, Phelps' first § 2255 motion was dismissed as time-barred pursuant to 28 U.S.C. § 2255(f). (Docs. 135, 137).

         On May 11, 2016, Phelps filed the instant petition, alleging that his sentence is unconstitutional for essentially two reasons: (1) the United States Supreme Court's ruling in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), that the residual clause of the Armed Career Criminal Act (“ACCA”) was unconstitutionally vague, should likewise apply to the sentencing guidelines used in this case and render those similar provisions unconstitutionally vague; and (2) his prior conviction in the Baldwin County Circuit Court should not have been used for purposes of designating him a career offender under the sentencing guidelines, as it did not involve a crime of violence or a “controlled substance” offense. (Doc. 168 at 3).

         In Respondent's motion to dismiss filed on June 14, 2016, the Government argued that Johnson was inapplicable to the instant case. (Doc. 174). On that same date, the Court issued an order directing Phelps to show cause why Johnson should apply to his case. (Doc. 175). In his response, Phelps essentially reiterated his previous grounds for relief. (Doc. 178 at 3). On July 7, 2016, the Court stayed Phelps' action pending the United States Supreme Court's ruling in Beckles v. United States, 2016 WL 1209080 (U.S. June 27, 2016), granting certiorari in Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), for a determination of whether the rule articulated in Johnson should apply to the sentencing guidelines at issue in the instant case. (Doc. 181).

         This motion is now ripe for review.

         II. HABEAS STANDARD

         The limited scope of habeas relief is well established, as this Court has recognized:

Collateral relief is an extraordinary remedy which “may not do service for a [] [direct] appeal.” United States v. Frady, 456 U.S. 152, 165, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see also Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (“Courts have long and consistently affirmed that a collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal.”). A defendant who has waived or exhausted his right to appeal is presumed to stand “fairly and finally convicted.” Frady, 456 U.S. at 164. Unless a claim alleges a lack of jurisdiction or constitutional error, the scope of collateral attack has remained extremely limited. United States v. Addonizio, 442 U.S. 178, 185, 99 S.Ct. 2235, 60 L.Ed.2d 805 (1979). Consequently, “[i]f issues are raised and considered on direct appeal, a defendant is thereafter precluded from urging the same issues in a later collateral attack . . . A defendant is, of course, entitled to a hearing of his claims, but not to duplicate hearings. The appellate process does not permit reruns.” Moore v. United States, 598 F.2d 439, 441 (5th Cir. 1979).

United States v. Evans, 2008 WL 3200694, *3, 2008 U.S. Dist. LEXIS 59836, *8-9 (S.D. Ala. Aug. 4, 2008).

         III. DISCUSSION

         As stated, Phelps claims in his motion to vacate that he is entitled to collateral relief because of the Supreme Court's ruling in Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and because his conviction in the Baldwin County Circuit Court for possession of anhydrous ammonia was neither a crime of violence nor a “controlled substance;” thus, it should not have been used to enhance his sentence as a career offender under the sentencing guidelines. For the following reasons, the Court finds that Phelps' arguments are without merit.

         A. Johnson and Beckles.

         In Johnson v. United States, ___ U.S. ___, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), the Supreme Court held that the residual clause of the ACCA, set forth in 18 U.S.C § 924(e), is unconstitutionally vague because it creates “uncertainty about how to estimate the risk posed by a crime[ ]” and also “leaves uncertainty about how much risk it takes for a crime to qualify as a violent felony.”[3]Id., 135 S.Ct. at 2557-58, 2563 (holding that the imposition of an enhanced sentence under the ACCA's residual clause with respect to an individual who pleaded guilty to 18 U.S.C. ยง 922(g), prohibiting a convicted felon from possessing a firearm, violated ...


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