Dinkins v. United States
| Decision Date | 03 October 2016 |
| Docket Number | Cr. No. 3:11-2061-CMC |
| Citation | 213 F.Supp.3d 784 |
| Parties | Deon DINKINS, Defendant-Petitioner v. UNITED STATES of America, Plaintiff-Respondent. |
| Court | U.S. District Court — District of South Carolina |
Jean M. Popowski, US Attorneys Office, Columbia, SC, for Plaintiff-Respondent.
Defendant, through his attorney, seeks relief pursuant to 28 U.S.C. § 2255. ECF No. 116. The Government filed a response in opposition on June 26, 2016. ECF No. 120. On July 5, 2016, Defendant filed a response in support. ECF No. 121.
On August 17, 2011, Defendant was indicted for felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e). ECF No. 2. On February 17, 2012, Defendant entered into a written conditional plea agreement to plead guilty to the charge. ECF No. 50. The same day, Defendant appeared before the court and after a thorough Rule 11 hearing, entered a guilty plea to felon in possession.
A Pre-Sentence Report (PSR) concluded Defendant was an armed career criminal under the Armed Career Criminal Act ("ACCA") and faced a mandatory minimum term of imprisonment of fifteen (15) years and a maximum term of life imprisonment. The PSR found that Defendant's prior convictions for Possession with Intent to Distribute Cocaine (1992), distribution of crack cocaine/distribution of crack cocaine near a school (1994), and assault and battery with intent to kill ("ABWIK"), qualified as predicate convictions for ACCA purposes. See ECF No. 60, PSR ¶¶ 24, 26, 27. No objections were made to the PSR regarding Defendant's ACCA predicate convictions.
On April 25, 2012, Defendant appeared for sentencing. The court varied from the guideline range of 188-235 months based on Defendant's "history of mental illness and treatment and his strong family support." ECF No. 64. Defendant was sentenced to 180 months' imprisonment and five years' supervised release. Defendant appealed the denial of a motion to suppress and the Fourth Circuit affirmed the judgment on October 22, 2012. ECF No. 78.
Defendant filed a § 2255 motion on January 10, 2013, arguing that his counsel was ineffective for several reasons, including because he failed to "thoroughly investigate and challenge" Defendant's prior convictions that were used as predicate offenses, and asserting that he was not an armed career criminal. ECF No. 80. Specifically, Defendant argued that his conviction for possession of "a small amount of drugs" was not sufficient to qualify as an ACCA predicate. ECF No. 80-1, at 39. The Government agreed that Defendant's conviction in Paragraph 25 of the PSR, possession of cocaine (1993), did not count as a predicate drug offense for the ACCA. However, the Government asserted, and the court adopted as its finding, that Defendant had other offenses that qualified him as an armed career criminal. ECF No. 93 (Government's Response in Opposition); ECF No. 99 (Order granting Government's Motion for Summary Judgment) ("[F]or the reasons argued by the Government in its response in opposition, which the court adopts as its findings, Defendant is not entitled to relief."). Therefore, the court dismissed Defendant's § 2255 motion with prejudice. ECF No. 99.
Defendant filed a second pro se motion under § 2255 on May 16, 2014, arguing again that he was improperly enhanced under the ACCA because his conviction for possession of cocaine in 1993 was not for a serious drug offense. ECF No. 102. The court dismissed this motion as successive on May 19, 2014. ECF No. 212.
Prior to filing the instant motion, Defendant filed a § 2244 motion with the Fourth Circuit. No. 16–853. On June 2, 2016, he received permission to file a second or successive motion under § 2255. ECF No. 115. The instant motion under § 2255 was filed the same day. ECF No. 116.
A conviction for felon in possession typically carries a statutory maximum sentence of ten years in prison. See 18 U.S.C. § 924(a)(2). However, if the accused has three or more previous convictions for certain types of felonies, he is subject to an enhanced minimum sentence of fifteen years imprisonment with a maximum term of life imprisonment. Title 18 U.S.C. § 924(e)(1) provides:
18 U.S.C. § 924(e)(2)(B). The first clause, § 924(e)(2)(B)(i), is typically referred to as the "use of force" clause ("has as an element the use, attempted use, or threatened use of physical force against the person of another."). The first part of the second clause, § 924(e)(2)(B)(ii), lists specific offenses—burglary, arson, extortion, offenses involving use of explosives—and is commonly denoted the "enumerated offense" clause. Finally, the portion of § 924(e)(2)(B)(ii) covering a conviction that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is generally referred to as the "residual clause."
On June 26, 2015, the Supreme Court held that the residual clause of the ACCA violates due process as it "denies fair notice to defendants and invites arbitrary enforcement by judges." Johnson v. United States , 576 U.S. ––––, ––––, 135 S.Ct. 2551, 2557, 192 L.Ed.2d 569 (2015). By holding the residual clause unconstitutionally vague, the Court narrowed the predicate offenses that could serve to enhance a sentence to those that qualify under the enumerated or force clauses. The residual clause can no longer support a defendant's classification as an armed career criminal.
On April 18, 2016, the Supreme Court decided Welch v. United States , 578 U.S. ––––, 136 S.Ct. 1257, 194 L.Ed.2d 387 (2016), which held that the newly established right recognized in Johnson is retroactive to cases on collateral review, such as Defendant's case. Therefore, Defendant's § 2255 motion, filed within one year of the Johnson decision, is timely1 and ripe for resolution.
a. ACCA Discussion
At the time of his sentencing, Defendant had three predicate South Carolina convictions which served to qualify him for the ACCA enhancement: Possession with Intent to Distribute Cocaine (1992), distribution of crack cocaine/distribution of crack cocaine near a school (1994), and assault and battery with intent to kill ("ABWIK"). See ECF No. 60, PSR ¶¶ 24, 26, 27.
Defendant's two serious drug offenses are unaffected by Johnson and its progeny. Therefore, the issue at hand is whether the ABWIK conviction qualifies as an ACCA predicate conviction under the force clause, or only qualified under the now-defunct residual clause, in which case Defendant is no longer an armed career criminal.
ABWIK was a South Carolina common law offense before it was abolished in 2010. As Defendant was sentenced in 2004, South Carolina common law applies.2 ABWIK is defined as an "unlawful act of a violent nature to the person of another with malice aforethought, either express or implied." State v. Foust , 325 S.C. 12, 479 S.E.2d 50, 51 (1996). ABWIK also requires an intent to kill; however, this intent need not be a specific intent to kill, but may be a general intent "so long as there is intent to commit grievous bodily injury such that, had death occurred, the offense would have been murder." Id. at 51–52.
In order to decide whether Defendant's conviction qualifies under the ACCA force clause, this court must use the categorical approach3 to determine whether ABWIK "has as an element the use, attempted use, or threatened use of physical force against the person of another." § 924(e)(2)(B)(i). An attempted or threatened use of force would constitute assault with intent to kill, but actual use of force is required for ABWIK, due to the requirement of a battery.4 As defined by the Supreme Court, "the phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person." Johnson v. United States , 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) ("Johnson 2010 "). Therefore, in order to qualify under the ACCA force clause, ABWIK must require the use of violent physical force—"unwanted touching" or slight intentional physical contact is not sufficient. See id. at 139, 130 S.Ct. 1265.
"In evaluating a state court conviction for ACCA predicate offense purposes, a federal court is bound by the [state supreme court's] interpretation of state law, including its determination of the elements of the potential predicate offense." Hemingway , 734 F.3d at 332. As precedent from South Carolina courts makes clear, assault and battery in South Carolina does not require the "violent physical force" necessary to satisfy the Johnson 2010 definition of force for the ACCA, as "any forcible contact, irrespective of its degree, will suffice." Mellen v. Lane , 377 S.C. 261, 659 S.E.2d 236, 244 (2008) ; see also State v. LaCoste , 347 S.C. 153, 553 S.E.2d 464, 471 (S.C. Ct. App. 2001) (). South Carolina courts have recognized that...
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United States v. Dinkins
...small a child to drink such a nauseous drug." It is not clear that Glover involved an ABIK conviction. See Dinkins v. United States, 213 F. Supp. 3d 784, 787 nn.2 & 4 (D.S.C. 2016). But even if it did, Glover does not assist Dinkins here because the Supreme Court has expressly held that poi......