Cooke v. United States
| Decision Date | 06 August 2020 |
| Docket Number | CIVIL ACTION NO. 1:20-00031-KD,CRIMINAL ACTION NO. 1:08-00010-KD-N |
| Court | U.S. District Court — Southern District of Alabama |
| Parties | CLIFFORD SCOTT COOKE, Movant, v. UNITED STATES OF AMERICA, Respondent. |
Clifford Scott Cooke, the defendant in the above-referenced criminal action, filed pro se a superseding Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 dated January 23, 2020 (Doc. 1371) challenging the judgment entered against him in that criminal action.2 The assigned District Judge has referred said motion to the undersigned Magistrate Judge for appropriate action. See S.D. Ala. GenLR 72(b); (1/27/2020 electronic reference). Under S.D. Ala. GenLR 72(a)(2)(R), the undersigned is authorized to require responses, issue orders to show cause and anyother orders necessary to develop a complete record, and to prepare a report and recommendation to the District Judge as to appropriate disposition of the § 2255 motion, in accordance with 28 U.S.C. § 636(b)(1) and Rules 8(b) and 10 of the Rules Governing Section 2255 Proceedings for the United States District Courts.
After preliminary review of Cooke's superseding § 2255 motion under Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, the undersigned found that at least one of Cooke's claims was without merit, and that his other claims were time-barred under the one-year statute of limitations for bringing § 2255 motions. The undersigned explained those determinations to Cooke and permitted him a reasonable period to show cause why his superseding § 2255 motion should not be denied for those reasons. (See Docs. 149, 155). Cooke timely filed a brief and objections in response (Docs. 157, 158, 159).3
Having considered Cooke's superseding § 2255 motion, the record of prior proceedings, and Cooke's responses to the undersigned's show-cause order, the undersigned finds under Rule 4(b) of the Rules Governing Section 2255 Proceedings that it plainly appears Cooke is not entitled to relief, and that his motion is therefore due to be DISMISSED.
Cooke argues that his original sentence should be vacated because his prior Alabama 3rd-degree burglary convictions no longer qualify as predicate offenses for applying the Armed Career Criminal Act to his original sentence, under the reasoning of the United States Supreme Court's decisions in Descamps v. United States, 570 U.S. 254 (2013), and Johnson v. United States, 135 S. Ct. 2551 (2015). He also appears to argue, as an additional ground for relief, that his appointed counsel provided ineffective assistance by failing to file a § 2255 motion on Cooke's behalf requesting relief on the basis of Descamps and Johnson within the 1-year statute of limitation to do so, see 28 U.S.C. § 2255(f).
Cooke's claim for relief based on ineffective assistance of post-conviction counsel can easily be rejected on the merits. "The Supreme Court has long held that there is no constitutional right to counsel in post-conviction proceedings, even in capital cases, which necessarily means that a habeas petitioner cannot assert a viable, freestanding claim for the denial of the effective assistance of counsel in such proceedings." Chavez v. Sec'y, Fla. Dep't of Corr., 742 F.3d 940, 944 (11th Cir. 2014). Accordingly, that claim is due to be DISMISSED with prejudice as meritless. The undersigned now turns to Cooke's Descamps and Johnson claims.
"The Armed Career Criminal Act (ACCA...), 18 U.S.C. § 924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a 'violent felony,' including 'burglary, arson, or extortion.' " Mathis v. United States, -- U.S. --, 136 S. Ct. 2243, 2247, 195 L. Ed. 2d 604 (2016). Cooke's presentence investigation report stated that he was subject to the ACCA's enhancement (see Doc. 40, PageID.112), and the Court so found at Cooke's September 22, 2009 sentencing hearing. (See Doc. 54, PageID.200). However, after granting the Government's motion for a downward departure based on Cooke's cooperation, the Court sentenced him to a term of imprisonment of 160 months-below the ACCA mandatory minimum-to be followed by a 5-year term of supervised release, with credit for time served in state custody. (See id., PageID.207-209; Docs. 43, 44, 45). On the Government's filing of a post-judgment motion to reduce Cooke's sentence under Federal Rule of Criminal Procedure 35, the Court further reduced Cooke's term of imprisonment to 128 months. (See Docs. 59, 62, 63).4
Cooke was subject to the ACCA at sentencing because he was found to have "at least three prior convictions for a violent felony." (Doc. 40, PageID.113). For purposes of the ACCA, a "violent felony" is statutorily defined as "any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that-- (i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or (ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another..." 18 U.S.C. § 924(e)(2)(B). "The first prong of this definition is sometimes referred to as the 'elements clause,' while the second prong contains the 'enumerated crimes' and, finally, what is commonly called the 'residual clause.' " In re Thomas, 823 F.3d 1345, 1347 (11th Cir. 2016) (per curiam).
The Eleventh Circuit has held that, "[i]n light of the Descamps decision, ... a conviction under Alabama Code § 13A-7-7[, burglary in the third degree,] cannot qualify as generic burglary under the ACCA." United States v. Howard, 742 F.3d 1334, 1348-49 (11th Cir. 2014).5 The Eleventh Circuit has also held that, because "Descamps did not announce a new rule[, but] merely clarified existing precedent[,]" it applies retroactively on collateral review. Mays v. United States, 817 F.3d 728, 734 (11th Cir. 2016) (per curiam). See also Greer v. United States, 749 F. App'x 887, 889(11th Cir. 2018) (per curiam) (unpublished) (). The Eleventh Circuit has also held that the ACCA's "elements clause clearly is inapplicable" to an Alabama 3rd-degree burglary conviction. Mays, 817 F.3d at 733 n.5.
Johnson held that the "residual clause" of § 924(e)(2)(B)(ii) - the part defining "violent felony" as crime that "otherwise involves conduct that presents a serious potential risk of physical injury to another" - was void for vagueness, and the Supreme Court has since held that Johnson is also retroactive on collateral review. See Welch v. United States, 136 S. Ct. 1257 (2016). Accordingly, because none of the ACCA's three "violent felony" clauses apply to an Alabama 3rd degree burglary conviction, it is no longer a qualifying predicate offense under the ACCA. See Mays, 817 F.3d at 737.
The presentence investigation report did not specify which prior convictions it deemed "violent felonies." The section listing Cooke's adult criminal convictions (Doc. 40, PageID.116-124) noted two Alabama 3rd degree burglary convictions, which, as stated above, are no longer ACCA "violent felonies." Though Cooke does not address whether any of the numerous other convictions noted in the report qualify as ACCA predicate offenses, the undersigned notes one Alabama 2nd degree robbery conviction, which qualifies as a "violent felony" under the "elements clause," see United States v. Hunt, 941 F.3d 1259, 1261-62 (11th Cir. 2019), and Florida convictions for burglary of an occupied dwelling and burglary of an unoccupied conveyance, which do not qualify as ACCA predicate offenses. See United States v. Esprit, 841 F.3d 1235 (11th Cir. 2016).6
"[L]ike any other § 2255 movant, a Johnson § 2255 claimant must prove his claim." Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017). In Beeman, the Eleventh Circuit held that, "[t]o obtain relief based on Johnson, a postconviction movant must prove that his sentence 'enhancement was due to use of the residual clause.' " Tribue v. United States, 929 F.3d 1326, 1331 (11th Cir. 2019) (quoting Beeman, 871 F.3d at 1222).
"In other words, he must show that the clause actually adversely affected the sentence he received." [Beeman, 871 F.3d] at 1221. A Johnson § 2255 movant must prove two things: (1) that "the sentencing court relied solely on the residual clause, as opposed to also or solely relying on either the enumerated offenses clause or elements clause," and (2) that "there were not at least three other prior convictions that could have qualified under either of those two clauses as a violent felony, or as a serious drug offense." Id.
Tribue v. United States, 929 F.3d 1326, 1331 (11th Cir. 2019). However, because Cooke's Descamps and Johnson claims are time-barred, the Court need not inquire whether Cooke can satisfy the Beeman test.
The Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA") "imposes a one-year statute of limitations for filing a § 2255 motion." Outler v. United States, 485 F.3d 1273, 1278 (11th Cir. 2007) (per curiam). "For federal prisoners filing§ 2255 motions, the statute of limitations runs from the latest of the following trigger dates: (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially...
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