Dubose v. United States
| Decision Date | 23 September 2011 |
| Docket Number | Related to C.A. 11-11249-PBS,CR. No. 07-10313-PBS |
| Parties | JAMONT DUBOSE, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — District of Massachusetts |
SARIS, D.J.
Now pending before this Court is defendant Jamont F. Dubose's ("Dubose") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 (Docket No. 62), and the Government's Initial Request for Summary Dismissal (Docket No. 64).
On September 19, 2007, an Indictment was returned charging Dubose with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g). During the criminal proceedings, an evidentiary hearing was held on Dubose's motion to suppress evidence, and on March 31, 2008, this Court denied the motion. See Memorandum and Order (Docket No. 27).
On June 10, 2008, Dubose entered a change of plea and pled guilty. On October 2, 2008, a sentencing hearing was held. This Court found the Armed Career Criminal Act ("ACCA"), 18 U.S.C.§ 924(e)(1), applied to Dubose, and sentenced him to a term of imprisonment of 180 months. See Judgment (Docket No. 39). Dubose filed a Notice of Appeal (Docket No. 40) on October 8, 2008. Thereafter, an Amended Judgment (Docket No. 47) entered.
On September 1, 2009, the United States Court of Appeals for the First Circuit ("First Circuit") affirmed this Court's denial of Dubose's motion to suppress. See Judgment (Docket No. 56); Mandate (Docket No. 59, entered Oct. 20, 2009)(denying petition for rehearing and petition for rehearing en banc); United States v. Dubose, No. 08-2382 (1st Cir. 2009). On November 1, 2010, Dubose's petition for writ of certiorari to the United States Supreme Court was denied. See DuBose v. United States, 131 S.Ct. 536 (2010)(No. 10-6629).
On April 25, 2011, Dubose filed a pleading entitled "Affidavit to Vacate A.C.C.A. Enhancement" (Docket No. 60). In that pleading, Dubose requested this Court consider his motion for relief from his enhanced sentence, pursuant to 18 U.S.C. § 3582. He alleged that his ACCA sentence was imposed in error because one of the predicate offenses, a Massachusetts assault and battery on a police officer ("ABPO") was based, improperly, on a plea colloquy from this prior conviction.1 He maintainedthat the Government had not met its initial burden of proving the predicate conviction. In addition, Dubose argued that this Court erred in concluding that every ABPO qualified as a "violent felony" under the ACCA.
On May 13, 2011, this Court issued a Memorandum and Order (Docket No. 61) construing Dubose's "Affidavit to Vacate A. C.C.A. Enhancement" (Docket No. 60) as a motion to modify the judgment of conviction pursuant to 18 U.S.C. § 3582. This Court denied the motion because none of Dubose's arguments fell within the three narrow exceptions for modification set forth in 18 U.S.C. § 3582(c).2 See United States v. Dubose, 2011 WL 1842825, *2 (D. Mass. 2011).
After the denial of the § 3582 motion, on July 15, 2011, Dubose filed the instant § 2255 motion, along with an incorporated Memorandum in support (Docket No. 62). This Court directed service of the motion and a response by the respondent. See Service Order (Docket No. 64).
In Dubose's § 2255 motion, he seeks relief from his conviction and/or sentence, either by dismissal of the Indictment, or the grant of a new trial. He raises four grounds in support, although he discusses two of these grounds together as Ground Two. Additionally, he raises other grounds in the Memorandum in Support that are not contained in the § 2255 motion itself. These grounds, considered together, are as follows.
Dubose also presents a separate challenge to the use of another state conviction as a prior violent felony conviction under the ACCA. He claims that his Resisting Arrest charge out of the Dorchester District Court (Docket No. 0307-7480H), for which he received six months in the House of Correction on June 22, 2004, was not a "crime of violence." Id. at 2.4
Next, Dubose contends that his prior state convictions arising out of Massachusetts District Court cases do not amount to felonies; rather, they are misdemeanor offenses only. Dubose argues in his Memorandum in Support that the state district courts do not have jurisdiction to sentence prisoners to a state prison. Since he was tried in the district court, -- and not the state superior court -- he contends that his offenses may not be considered as felonies. Thus, he asserts that his drug offenses (Docket No. 0307-cr-7001D), which ran concurrent with other charges, cannot be used to enhance his sentence under the ACCA.5 Dubose does not address specifically the concurrent ResistingArrest charge (Docket No. 0307-cr-7001E).6
Second, Dubose asserts an ineffective assistance of counsel claim against his defense counsel, Attorney Daniel J. Cloherty, both as trial counsel and as appellate counsel.7 He claims that counsel failed to object to the plea colloquy with respect to the assertion that the ACCA applied to Dubose. Id. at 5.8 He also asserts counsel failed to investigate his version of the facts and/or failed to investigate properly his past criminal history or present evidence about this, and failed to object to the PSR conclusion that he falls under the ACCA.
In the same paragraph, Dubose asserts a third ground for relief -- that this Court improperly relied on the U.S. ProbationOffice's "misinformation" in the PSR with respect to the charging documents, in order to find Dubose eligible for an enhancement under the ACCA. He asserts the PSR mischaracterized his past criminal history and offense conduct, leading this Court to find prior convictions constituted "violent felonies." He further claims this Court failed to review properly his criminal record de novo. Section 2255 Motion (Docket No. 62 at 5).
Dubose's fourth ground for relief challenges the validity of his conviction rather than his enhanced sentence. He contends
that his constitutional rights were violated when the Police Officers concluded they had a reasonable suspicion to stop him as they observed him approach and lean into a car in the mid-afternoon in a neighborhood that was not a high crime area.9 The next allegation concerning the Officers' conduct regarding a pat frisk of Dubose after the stop is not set forth clearly; however, it appears he also contends that the Officers did not have reasonable suspicion to pat frisk him because Dubose had complied with the order to remove his hands from his pocket.10 In his Memorandum in Support, Dubose contends that the Police Officers did not observe any kind of interaction, exchange, or involvement of Dubose with the occupants of the motor vehicle, that the occupants were not known to them, and that there were no reports of any criminal activity involving him, the vehicle, or the area.11 He further contends that the Police Officersharassed and intimidated him by following him in their vehicle, and then, later, grabbing him by the elbow and demanding he take his hands out of his pockets, and barring him from leaving. After Dubose fled the scene and was caught a half a block away after a foot chase, he was questioned and placed in the back of the police cruiser. Dubose claims that while being held in the cruiser, he was never given his Miranda rights.
In the body of the Memorandum in Support of his § 2255 petition, Dubose seeks appointment of counsel.
On July 21, 2011, the Government responded to the § 2255 petition by seeking summary dismissal. See Response (Docket No. 64). As grounds for dismissal, the Government contends that: (1) Dubose seeks to relitigate issues previously raised and decided against him both in this Court and on direct appeal;12 (2) Dubose's assertions are contradicted by the PSR, as well by recent decisions of the First Circuit in United States v.Holloway, 630 F.3d 252, 252 (1st Cir. Jan. 21, 2011) and United States v. Dancy, 640 F.3d 455 (1st Cir. Apr. 13, 2011);(3) even if Holloway applied in this case (to exclude the Assault and Battery offense from ACCA consideration), Dubose would still be considered an Armed Career Criminal because he has three other ACC predicate offenses; and (4) knowing the problems with his criminal record, Dubose has attempted to transform his ACC claim into one involving ineffective assistance of counsel, but he has failed to provide any information as to what any investigation by defense counsel would have...
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