Blake v. United States, Case No. 2:17-cv-04595

• Decision Date: 22 July 2019
• Docket Number: Criminal Case No. 2:17-cr-00107,Case No. 2:17-cv-04595
• Citation: Blake v. United States, Case No. 2:17-cv-04595, Criminal Case No. 2:17-cr-00107 (S.D. W.Va. Jul 22, 2019)
• Court: U.S. District Court — Southern District of West Virginia
• Parties: EDWARD WILLIAM BLAKE JR., Movant, v. UNITED STATES OF AMERICA Respondent.

EDWARD WILLIAM BLAKE JR., Movant, v. UNITED STATES OF AMERICARespondent.

Case No. 2:17-cv-04595

Criminal Case No. 2:17-cr-00107

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION

July 22, 2019

PROPOSED FINDINGS AND RECOMMENDATIONS

Pending before the Court are Movant's pro se Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255, (ECF No. 35), and Respondent's Response and Motion to Dismiss.(ECF No. 44).¹This matter is assigned to the Honorable Joseph R. Goodwin, United States District Judge, and by Standing Order has been referred to the undersigned United States Magistrate Judge for the submission of proposed findings of fact and recommendations for disposition pursuant to 28 U.S.C. § 636(b)(1)(B).Having determined from a thorough review of the record that Movant clearly is not entitled to relief under 28 U.S.C. § 2255, the undersigned FINDS no basis for an evidentiary hearing.Accordingly, the undersigned respectfully RECOMMENDS that the presiding District Judge DENY the Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255,(ECF No. 35);GRANT the Motion to Dismiss, (ECF No. 44); DISMISS this action, with prejudice; and REMOVE this matter from the docket of the Court.

I.Factual and Procedural Background

In June 2017, a federal grand jury sitting in the Southern District of West Virginia returned an indictment which charged Movant, Edward William Blake Jr.("Blake"), with possessing a firearm after being convicted of a crime of domestic violence in violation of § 922(g)(9)and§ 924(a)(2).(ECF No. 1).On August 15, 2017, Blake entered into a plea agreement with the United States and pled guilty in open court to the charge contained in the indictment.(ECF Nos. 24, 27).In the plea agreement, Blake stipulated that on April 18, 2016, he was arrested after law enforcement officers responded to a domestic violence report at Blake's residence.(ECF No. 28at 8).Blake's wife was placed in the hospital following his arrest.Law enforcement officials later returned to Blake's residence with Blake's wife, and she revealed where Blake had hidden a firearm prior to the arrival of law enforcement officers earlier that day.(Id.).Blake admitted that the firearm in question, a Bryco Arms 9mm caliber pistol, was manufactured in the State of California and had traveled in or affected interstate commerce.(Id. at 9).Blake additionally admitted that, at the time he possessed the firearm, he had previously been convicted of two crimes of domestic violence.Specifically, on September 12, 2005 in Nicholas County, West Virginia, he was convicted of Domestic Battery in violation of West Virginia Code § 61-2-28(a), and on March 7, 2005 in Nicholas County, West Virginia, he was convicted of Domestic Battery, Second Offense, in violation of West Virginia Code § 61-2-28(a).(Id. at 8).The Plea Agreement contained a waiver clause whereby Blake agreed to "knowingly and voluntarily" waive his right to appeal his conviction, or attack its validity through a habeas petition "on any ground whatsoever," except for a claim that his sentence exceeded thestatutorily permitted amount, or for claims based on ineffective assistance of counsel.(ECF No. 28at 5).

On November 6, 2017, the District Court for the Southern District of West Virginia("District Court") sentenced Blake to 21 months imprisonment and 3 years of supervised release.(ECF Nos. 31, 32).Blake did not appeal his sentence and instead filed the instant § 2255 petition in December 2017.(ECF No. 35).In the petition, Blake advances two grounds for relief.First, he argues that his conviction is invalid as the statutehe was convicted under exceeds the authority granted to Congress by the United States Constitution.(Id. at 4).This is so, Blake contends, because "[t]here is no mention in the Commerce Clause of firearms possession for Congress to regulate such commerce..."(Id.).Second, Blake believes that the District Court lacked jurisdiction over his criminal case as the Constitution prohibits federal district courts from being vested with "'judicial [p]ower' over any unenumerated criminal conduct."(Id. at 5).Blake filed a contemporaneous memorandum in support of his petition in which he expounds upon these grounds for relief.(ECF No. 36).

On May 14, 2018, the United States submitted a Response arguing that Blake's § 2255 petition should be summarily dismissed as it contains "unmistakable procedural defects."(ECF No. 44at 1).The United States contends that the petition should be dismissed as Blake expressly waived in his plea agreement the right to contest the validity of his conviction by collateral attack.(Id. at 3-4).The United States also argues that Blake's claims are procedurally defaulted as he did not raise them on direct appeal.(Id. at 7-8).Finally, the United States asserts that, even in the absence of these fatal procedural defects, the petition should be dismissed, because the claims raised by Blake do not entitle him to relief.(Id. at 1).

On May 25, 2018, Blake filed a Reply to the United States' Response.(ECF No. 45).Blake argues that his claims are outside the scope of the waiver contained in his plea agreement given that he is contending that "not only this Court, but all district courts of the United States cannot be vested with general criminal jurisdiction over felonies in general at all..."(Id. at 2).Blake asserts that these types of constitutional arguments, which dispute the existence of subject matter jurisdiction, are not waivable; thus, his petition is not barred by the terms of his plea agreement.(Id. at 3).

II.Standard of Review

A motion made pursuant to 28 U.S.C. § 2255 is a collateral attack on a conviction or sentence that was entered in a separate proceeding.To succeed on such a motion, the movant must prove that the conviction or sentence was imposed in violation of the laws or Constitution of the United States; or the court imposing the sentence lacked jurisdiction; or the sentence exceeded the maximum authorized by law; or the sentence was otherwise subject to collateral attack.28 U.S.C. § 2255."A motion collaterally attacking a prisoner's sentence brought pursuant to § 2255 requires the petitioner to establish his grounds by a preponderance of the evidence."Sutton v. United States of America, No. CRIM.A.2:02CR65, Civ.A.2:05CV91, 2006 WL 36859, at *2(E.D. Va.Jan. 4, 2006).Pursuant to the Rules Governing Section 2255 Proceedings for the United States District Courts("Rules"), the court should conduct a preliminary review of the motion.SeeRule 4.The court may then order the respondent to answer the motion and may authorize the parties to conduct discovery; the court may also direct the parties to expand the record as necessary to properly assess the validity of the motion.SeeRules 5,6, & 7.Once these steps are completed, the court must review the answer, transcripts, records of prior proceedings, and any other materials submitted to determine whether anevidentiary hearing on the motion is warranted.SeeRule 8(a).If the movant is clearly unable to state a claim that entitles him to relief, the court may deny the motion without an evidentiary hearing.Raines v. United States, 423 F.2d 526, 529(4th Cir.1970).

III.Discussion

As an initial matter, the undersigned notes that, since the filing of his petition, Blake has served his term of imprisonment and is no longer incarcerated on the crime of conviction.(ECF No. 45).Although Blake is no longer serving the prison sentence to which he objects, his case has not been rendered moot, because he remains on supervised release.SeeUnited States v. Johnson, 729 F. App'x 229, 230(4th Cir.2018)("As an initial matter, we hold that [the petitioner's] release does not render this appeal moot as he remains on supervised release...").Accordingly, the undersigned FINDS that Blake's petition may be considered on the merits notwithstanding his release from prison.

1.Waiver and procedural defect

Blake does not dispute the factual basis for his conviction, or argue that there were any procedural defects in the legal proceedings.Instead, Blake's claim is premised on the argument that both the statute under which he was convicted, and the judicial apparatus which administered the conviction, are prohibited by the Constitution.The United States, in a somewhat cursory manner, states that Blake's claims do not entitle him to relief, and proceeds to focus the bulk of its argument on demonstrating that Blake's claims are waived and procedurally barred.(ECF No. 44).

The Fourth Circuit has recognized that a defendant may waive his right to collaterally attack his conviction.SeeUnited States v. Lemaster, 403 F.3d 216, 220(4th Cir.2005).There is, however, a narrow class of exceptions to a valid collateral attack waiver, such as claims that a petitioner is actually innocent of a conviction, that thesentence imposed was in excess of the maximum penalty allowed by statute, or was based on a constitutionally impermissible factor such as race.SeeSmith v. United States, No. 3:09-CR-00158-06, 2012 WL 5987526, at *22 n.13(S.D.W. Va.June 27, 2012), report and recommendation adopted, No. CIV.A. 3:10-1398, 2012 WL 5987543(S.D.W. Va.Nov. 29, 2012);see alsoWhitaker v. Dunbar, 83 F. Supp. 3d 663, 669(E.D.N.C.2014).

Blake argues that his waiver of the right to attack his sentence collaterally does not apply to this petition, because he is challenging the existence of the District Court's subject matter jurisdiction.(ECF No. 45at 3).Blake cites to a 2018 decision by the Supreme Court of the United States("Supreme Court"), Class v. United States, 138 S. Ct. 798, (2018), in support of that argument.(Id.).Blake contends that this decision stands for the proposition that a guilty plea will not bar a defendant from pursuing...