Carter v. U.S.

• Decision Date: 06 August 2010
• Docket Number: No. 3:07CV1477(EBB),3:07CV1477(EBB)
• Citation: 731 F.Supp.2d 262
• Parties: Kevin CARTER v. UNITED STATES of America.
• Court: U.S. District Court — District of Connecticut

731 F.Supp.2d 262

Kevin CARTER

v.UNITED STATES of America.

No. 3:07CV1477(EBB).

United States District Court, D. Connecticut.

Aug. 6, 2010.

Kevin Carter, Fairton, NJ, pro se.

Christopher W. Schmeisser, Peter S. Jongbloed, U.S. Attorney's Office, New Haven, CT, for United States of America.

RULING ON MOTION FOR RECONSIDERATION

ELLEN BREE BURNS, Senior District Judge.

Pending before the Court in this habeas corpus proceeding is Kevin Carter's ("Carter") motion for reconsideration ¹ of the Court's denial of his petition to vacatehis conviction and sentence [doc. # 22]. ² Specifically, Carter asks the Court to reconsider his claim that his counsel was ineffective in not contesting the sentence enhancements he received for being a career offender and armed career criminal.³ For the following reasons, the motion for reconsideration [doc. # 24] is granted. ⁴ Upon reconsideration, the Court finds that Carter's sentence enhancements under both the career offender guidelines and the Armed Career Criminal Act were not appropriate ⁵ and that his counsel's failure to object to those sentence enhancements constitutes ineffective assistance of counsel that caused Carter actual prejudice.

I. Pertinent Factual Background ⁶

On January 21, 2005, a jury convicted Carter on all counts of a three-count indictment that charged him with Hobbs Act Robbery, in violation of 18 U.S.C. § 1951 (count one), Using and Carrying a Firearm in Relation to a Crime of Violence, in violation of 18 U.S.C. § 924(c) (count two), and being a Prohibited Person in Possession of a Firearm, in violation of 18 U.S.C. 922(g) (count three). The three counts of conviction all stemmed from the same jewelry store robbery on March 20, 2003.⁷

Carter was subject to a mandatory seven-year consecutive sentence under 18 U.S.C. § 924(c) because the jury found that he brandished a firearm in relation to a crime of violence. In addition, because Hobbs Act Robbery is a crime of violence and because Carter was found to have at least two prior felony convictions for either a crime of violence or a controlled substance offense, he was subject to sentenceenhancement as a career offender under Section 4B1.1 of the United States Sentencing Guidelines ("U.S.S.G."). Carter was also subject to sentence enhancement under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), because he was convicted of being a felon in possession of a firearm, in violation of 18 U.S.C. § 924(g), and because he was found to have three prior predicate convictions of either a violent felony or serious drug offense. Accordingly, his guideline sentencing range was 360 months to life. U.S.S.G. §§ 4B1.1(c), 4B1.1(c)(3), 4B1.4(c).

Carter's pre-sentence report ("PSR") identified five prior felony convictions that purportedly qualified as a "crime of violence" or a "controlled substance offense" as defined in the career offender guidelines and also as a "violent felony" or "serious drug offense" under the ACCA. Specifically, (1) a June 10, 1985 conviction of robbery in the 3rd degree, (2) an August 11, 1988 conviction of risk of injury to a minor, (3) a January 2, 1992 conviction of sale of narcotics, (4) a January 2, 1992 conviction of possession of narcotics, and (5) a January 25, 1994 conviction of sale of narcotics.⁸ The PSR's factual descriptions of his 1985 robbery, 1988 risk of injury and 1994 narcotics convictions were taken from police reports. The PSR contained no information at all regarding the underlying facts of his two 1992 drug convictions, but merely reported the fact of those convictions and stated that "the police report[s] are no longer available."

Carter was sentenced on May 2, 2005. The Court adopted the guideline calculations set forth in Carter's PSR and sentenced him to a total term of imprisonment of 360 months.⁹ Carter's counsel did not object to any of the guideline calculations or to the propriety of using any of Carter's prior convictions as described in his PSR to support a sentence enhancement as a career offender or armed career criminal.

Carter appealed his conviction, but not his sentence. The Second Circuit affirmed his conviction on March 27, 2006. He did not petition for certiorari and his conviction thus became final on June 25, 2006. Burrell v. United States, 467 F.3d 160, 164 (2d Cir.2006) (holding that for the purposes of 28 U.S.C. § 2255, a conviction becomes final when, inter alia, the time for filing a certiorari petition expires). Carter was represented by the same attorney in both the district court and the court of appeals.

II. Discussion

Carter asserts that his counsel provided ineffective assistance in violation of the Sixth Amendment by failing to object to his classifications as a career offender and armed career criminal. According to Carter, he was erroneously determined to be a career offender and armed career criminal on the basis of prior convictions that were not proper predicate offenses under the career offender guidelines and the ACCA and that his counsel's failure to object to the use of those prior convictions resulted in erroneous sentence enhancements that caused him actual prejudice.¹⁰

In opposition, the government asserts that Carter was properly classified as a career offender and armed career criminal and that his guideline range was properly calculated to be 360 months to life; that his reliance on United States v. Savage is misplaced because it announced a new procedural rule that is not applicable retroactively to cases on collateral review; and that Carter is not entitled to resentencing because his substantive rights were not violated.

A. Career Offender & Armed Career Criminal Classifications

Carter asserts that he did not have the required two prior felony convictions to support a sentence enhancement under the career offender guidelines or the three prior predicate convictions that are required to support a sentence enhancement as an armed career criminal under the ACCA. Carter is correct.

To assess whether a prior conviction constitutes a predicate offense under the guideline provisions pertaining to career offenders or the statute governing armed career criminals, a court may not engage in an elaborate fact-finding process to determine the particular facts underlying those convictions, but must apply a "categorical approach" which requires it to look only to the fact of conviction and the statutory definition of the prior offense. Taylor v. United States, 495 U.S. 575, 600, 602, 110 S.Ct. 2143, 109 L.Ed.2d 607 (1990) ("[t]he court must consider whether the elements of a prior predicate offense are of the type that would justify its treatment as a violent felony or serious drug offense without inquiring into the specific conduct of the particular defendant."); United States v. Johnson, 616 F.3d 85, 87-88 (2nd Cir.2010) (explaining that under the categorical approach the court must consider the offense generically, i.e., examine it in terms of how the law defines it and not in terms of how an individual offender might have committed it on a particular occasion). If the statutory definition of a prior conviction plainly reveals that it is categoricallya crime of violence (or a controlled substance offense) then there is no problem because the conviction necessarily implies that the defendant was found guilty of all the elements of the predicate offense. Taylor, 495 U.S. at 599, 110 S.Ct. 2143; United States v. Brown, 52 F.3d 415, 426 (2d Cir.1995) (applying Taylor's categorical approach and concluding that a prior conviction under New York's robbery statute is per se a violent felony and thus that prior conviction was correctly regarded as a predicate offense for the purpose of sentence enhancement).

However, in a narrow range of cases where the statute of a prior conviction is broader than the federal definitions of violent felony or serious drug offense in that it criminalizes both predicate and non-predicate conduct, the sentencing court should use a modified categorical approach and go beyond the mere fact of conviction to determine whether the conviction necessarily rested on a fact identifying it as a predicate offense. Taylor, 495 U.S. at 602, 110 S.Ct. 2143; Shepard v. United States, 544 U.S. 13, 16, 26, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); ¹¹ United States v. Palmer, 68 F.3d 52, 59 (2d Cir.1995) (holding that where the statute of a prior conviction reaches both conduct that satisfies the guideline definition of a crime of violence and conduct that does not, and the conviction is the result of a guilty plea, the sentencing court may look to easily produced and evaluated documents that clearly establish the conduct of which the defendant was convicted, but may not consider the depiction of that conduct as set forth in the PSR prepared for the sentencing court); see also United States v. Rosa, 507 F.3d 142, 151-53 (2d Cir.2007); United States v. King, 325 F.3d 110, 113-15 (2d Cir.2003). Put another way, when the statute of the prior conviction contains phrases that cover several different generic crimes, some of which require, for example, violent force and some which do not, the modified categorical approach permits a court to determine which statutory phrase was the basis for the conviction by consulting the trial record. Johnson v. United States, --- U.S. ----, 130 S.Ct. 1265, 1273, 176 L.Ed.2d 1 (2010).

In the Second Circuit, courts apply the approach first endorsed in Taylor to determine whether a prior conviction is a proper predicate for purposes of a sentence enhancement under both the career offender guideline and the ACCA. Palmer, 68 F.3d at 55 (noting that because of thesubstantial similarity between the ACCA's definition of violent felony and the guideline definition of crime of violence, authority interpreting one phrase is found to be persuasive in interpreting the other); United States v. Pearson, 77 F.3d 675, 676 (2d Cir.1996) (noting that the Taylor analysis is equally applicable to the determination...