Abraham v. U.S.
| Citation | 477 F.Supp.2d 1232 |
| Decision Date | 12 March 2007 |
| Docket Number | No. 06-20786-CIV-HUCK/WHITE.,06-20786-CIV-HUCK/WHITE. |
| Parties | Nevia ABRAHAM, Movant, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Southern District of Florida |
Philip Robert Horowitz, Philip R. Horowitz, Miami, FL, for Movant.
Bruce Brown, United States Attorney's Office, Fort Lauderdale, FL, for Respondent.
ORDER GRANTING MOTION TO VACATE
This matter is before the Court on the Movant, Nevia Abraham's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (the "Motion"). Movant challenges his mandatory life sentence for conspiracy to kidnap a postal employee, kidnaping a postal employee, assault on a postal employee, two counts of carrying a firearm in relation to a crime of violence and possession of a firearm by a convicted felon. Central to the Motion is the Movant's life sentence imposed pursuant to 28 U.S.C § 3559(c), known as the federal three strikes act.
In sentencing Movant to a life sentence, the Court found that § 3559(c) applied because Movant's prior escape conviction qualified as one of the three required serious violent felony convictions under the statute. At the time of sentencing, the Court was not aware of, nor did Movant's trial counsel or the government make it aware of, § 3559(c)(3)(A), which provides a defendant the opportunity to prove the otherwise facially qualifying conviction does not, in fact, constitute a qualifying conviction.
The Motion was referred to Magistrate Judge Patrick A. White for his report and recommendations. After holding an evidentiary hearing, Magistrate Judge White issued his report on February 27, 2007. In that report, Magistrate Judge White' thoroughly reviewed the applicable law, made detailed findings of fact and recommended that the Motion be granted based on trial counsel's ineffectiveness for failing to raise and argue that Movant's prior escape conviction was not a qualifying serious violent felony conviction under § 3559(c) and the resulting prejudice.
In its de novo review, the Court has considered Magistrate Judge White's report and the Objection thereto timely filed by the Government on March 9, 2007. The Court agrees with the findings of fact and conclusions set forth in Magistrate Judge White's report. Therefore, the Court adopts the findings, conclusions and recommendation contained in the report. The Court further finds that if it had known of the exception provided in § 3559(c)(3)(A), there is a reasonable probability that the outcome of these proceedings would have been more favorable to Movant. Accordingly, the Motion is GRANTED and the judgment of conviction is vacated for resentencing.
DONE AND ORDERED.
REPORT OF MAGISTRATE JUDGE FOLLOWING EVIDENTIARY HEARING
Nevia Kevin Abraham has filed a pro se motion to vacate pursuant to 28 U.S.C. § 2255, attacking his convictions and mandatory life sentence for conspiracy to kidnap a postal employee, kidnapping a postal employee, assault on a postal employee, two counts of carrying a firearm in relation to a crime of violence, and possession of a firearm by a convicted felon entered August 7, 2003, following a jury trial in Case No.03-20129-Cr-HUCK.
This case has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. § 636(b)(1)(B) and Rules 8 and 10 of the Rules Governing Section 2255 Proceedings in the United States District Courts.
For its consideration of this motion, the Court has the response of the government to an order to show cause with exhibits, the Presentence Investigation Report (PSI), the underlying criminal file, a supplemental memorandum of law filed by appointed counsel, as well as testimony and exhibits from the February 8, 2007 evidentiary hearing.
Abraham raises the following claims:
1. His conviction was obtained by a violation of the protection against double jeopardy, and counsel was ineffective for failing to bring this to the Court's attention.
2. Counsel was ineffective for failing to research the controlling law under § 3559 and 924(c).
3 He is actually innocent of the sentence.
4. He received ineffective assistance of appellate counsel.
The charges against Abraham stemmed from the events of January 31, 2003, when he took a postal employee hostage in order to gain entry into his girlfriend's house. He had gotten the help of a co-defendant, who drove him to the postal truck, and planned on making the postal employee knock on his girlfriend's house and pretend to deliver a package, so that he could enter when she opened the door. However, the police had received a call about an unidentified male jumping into a mail truck, and subsequently saw the codefendant jump out. They apprehended him, and he ultimately confessed to the plan. The police followed the mail truck, which still had the movant and the mail carrier inside, and after shots were fired from the truck, were able to effectuate a stop. The movant then took the postal employee to the back of the truck with him, where he kept her for at least an hour before releasing her and surrendering. After waiving his Miranda1 rights, Abraham provided a confession, and the police recovered two firearms from the mail truck.
He proceeded to trial, where his defense was that he felt compelled to break into his girlfriend's house in order to remove his children from his girlfriends because he was concerned by an alleged threat to their safety. Abraham was convicted as charged, and on August 5, 2003, he was sentenced to life imprisonment. During the sentencing hearing, counsel objected to the mandatory life imprisonment due to § 3559(c), the federal three strikes act, arguing that the escape conviction was not a serious violent felony, as defined by § 3559(c)(2)(F)(ii). The Court found that § 3559(c) did apply because the escape conviction qualified as a serious violent felony, and stated that it had no choice but to sentence him to life imprisonment.
Abraham prosecuted a direct appeal, arguing: (1) the court abused its discretion by denying his request for additional peremptory strikes during jury selection; (2) the court abused its discretion by admitting evidence of his prior bad acts under Fed.R.Crim.P. 404(b); (3) the court erred by not granting his motion for a mistrial following testimony attributing racist statements to him; (4) the prosecutor committed misconduct by misrepresenting the defendant's excuse and making inflammatory and prejudicial comments about the defendant to the jury; (5) the court erred by admitting into evidence the recording of a 911 call under the excited utterance exception to the hearsay rule; (6) his sentence was imposed in violation of the Ex Post Facto Clause; and (7) the court erred by denying him a reduction for acceptance of responsibility, and by enhancing his sentence because the victim was a government employee.
On September 30, 2004, the Court of Appeals affirmed the judgment, holding specifically that escape qualifies as a "serious violent felony," employing the reasoning found in United States v. Gay, 251. F.3d 950, 952 (11 Cir.2001), that the conduct of escaping presents a serious potential risk of physical injury to another. United. States v. Abraham, 386 F.3d 1033 (11th Cir.2004). His petition for writ of certiorari was denied on October 11, 2005. This timely motion to vacate pursuant to § 2255 ensued.
In his second claim, the subject of the evidentiary hearing, the movant asserts that counsel was ineffective for failing to research the controlling law under § 3559 and make the correct legal argument that the escape conviction should not be counted as one of the strikes against him. He argues but for counsel's deficient performance, he would not have received a mandatory life sentence.
To establish ineffective assistance of counsel, the movant must establish that 1) his counsel's representation fell below an objective standard of reasonableness; and 2) but for the deficiency in representation, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The standard is the same for claims of ineffective assistance on appeal. Matire v. Wainwright, 811 F.2d 1430, 1435 (11 Cir.1987). A court may decline to reach the performance prong of the standard if it is convinced that the prejudice prong cannot be satisfied. Id. at 697, 104 S.Ct. 2052; Waters v. Thomas, 46 F.3d 1506, 1510 (11 Cir.1995).
Review of counsel's conduct is to be highly deferential. Spaziano v. Singletary, 36 F.3d 1028, 1039 (11 Cir.1994), and second-guessing of an attorney's performance is not permitted. White v. Singletary, 972 F2d 1218, 1220 (11 Cir. 1992)("Courts should at the start presume effectiveness and should always avoid second-guessing with the benefit of hindsight."); Atkins v. Singletary, 965 F.2d 952, 958 (11 Cir.1992). Because a "wide range" of performance is constitutionally acceptable, "the cases in which habeas petitioners can properly prevail on the ground of ineffective assistance of counsel are few and far between" Rogers v. Zant, 13 F.3d 384, 386 (11th Cir.1994).
In this case, as stated, the movant asserts that counsel was ineffective for failing to make the proper objection under the federal three strikes law. The federal "three strikes" law under which the movant was sentenced mandates a sentence of life imprisonment for a defendant who has been convicted of a "serious violent felony" if he previously was convicted of "one or more serious violent felonies and one or more serious drug offenses." 18 U.S.C. § 3559(c)(1). In this case, Abraham's enhanced sentence was based on two prior convictions: (1) trafficking in cocaine, as the serious drug offense; and (2) escape, as the serious violent felony.
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