Kokoski v. United States
| Decision Date | 29 March 2013 |
| Docket Number | CIVIL ACTION NO. 5:12-2150 |
| Court | U.S. District Court — Southern District of West Virginia |
| Parties | MICHAEL KOKOSKI, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
Pending before the Court is Petitioner's written objections (ECF No. 203) to the Magistrate Judge's Proposed Findings and Recommendations (ECF No. 201). For the reasons stated below, Petitioner's written objections are DENIED, the Court ADOPTS in part the Magistrate Judge's Proposed Findings and Recommendations, DENIES the Petition, and DISMISSES this action from the docket of this Court. However, this Court denies the Petition on different grounds than those used in the Proposed Findings and Recommendations as outlined below.
In July 1994, Petitioner Michael Kokoski pled guilty to employing a person under eighteen years of age to distribute LSD, in violation of 21 U.S.C. §§ 841(a)(1) and 861(a)(1). United States v. Kokoski, No. 5:92-cr-0090 (S.D. W. Va.). He was later sentenced to 144 months' imprisonment and six years of supervised release, and was ordered to pay a $5,000 fine.On April 28, 1996, while serving his term of imprisonment at FCI Beckley's Satellite Prison Camp,1 he left the Camp without authorization:
Kokoski simply walked out of the camp. It is undisputed that Kokoski was not confronted during his escape, nor did he have to negotiate any physical barriers. Kokoski was arrested on unrelated charges in Montana in 1999, where he was living under a false name. A fingerprint analysis confirmed Kokoski's identity.
United States v. Kokoski, 238 F.3d 416, 2000 WL 1853389, at *1 (4th Cir. 2000), cert. denied, 121 S. Ct. 1665 (2001) (). He later pled guilty on February 3, 2000, to escape, in violation of 18 U.S.C. § 751(a). United States v. Kokoski, 5:96-cr-0064 (S.D. W. Va.). For sentencing purposes, this escape conviction was treated as a "crime of violence."2 Because Petitioner was also at least 18 years old and had at least two prior felony controlled substance convictions, he met the definition of "career offender" under the United States Sentencing Guidelines ("U.S.S.G." or "Guidelines"). Petitioner's classification as a career offender resulted in an increase in his Base Offense Level and Criminal History Category at sentencing.3 He was sentenced on May 9, 2000, to 37 months' imprisonment, to run consecutively with his earlier sentence, and three years of supervised release.
Petitioner appealed his sentence, arguing that his conviction did not constitute of a "crime of violence." On December 19, 2000, the Fourth Circuit affirmed the District Court's sentence.United States v. Kokoski, 238 F.3d 416, 2000 WL 1853389 (4th Cir. 2000), cert. denied, 121 S. Ct. 1665 (2001).4 Mr. Kokoski thereafter initiated habeas corpus proceedings under Section 2255 regarding his conviction for escape, but the District Court ultimately dismissed his petition in March 2005. Kokoski v. United States, No. 5:02-cv-0079, ECF Nos. 118, 139 (S.D. W. Va). He appealed the dismissal; the Fourth Circuit subsequently denied a certificate of appealability and dismissed the appeal in April 2006. Id., ECF No. 170.
On June 14, 2012, Petitioner filed the pending Petition for the Writs of Coram Nobis and of Audita Querela. Kokoski v. United States, 5:12-cv-2150, ECF No. 198 (hereinafter "Petition"); see also United States v. Kokoski, 5:96-cr-00064, ECF No. 198. In this petition, he sought immediate release from custody on the grounds that he should not have been categorized as a career offender.5 Magistrate Judge R. Clarke VanDervort issued Proposed Findings and Recommendations ("PF&R") on November 29, 2012, recommending that the District Court deny the Petition. ECF No. 201. Petitioner timely filed written objections to the PF&R on December 17, 2012. ECF No. 203. Petitioner objects to the recommendation that the Petition be denied,specifically the finding that the escape conviction constituted a "crime of violence" for purposes of the career offender definition. In support of his objections, he cites the same three cases cited in his Petition: Chambers v. United States, 555 U.S. 122 (2009); Begay v. United States, 553 U.S. 137 (2008); and United States v. Clay, 627 F.3d 959 (4th Cir. 2012).
This Court's review of the magistrate's proposed findings and recommendations to which Petitioner objects is de novo. 28 U.S.C. § 636(b)(1)(C) ( ). Therefore, this Court will review de novo the magistrate judge's determination that Petitioner's escape conviction was a "crime of violence" such that Petitioner was properly categorized as a career offender.6
Before discussing recent case law, the Court will turn to the applicable Guideline provisions in this case. "Career offender" is defined in the Guidelines as follows:
A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.
U.S.S.G. § 4B1.1(a). The Guidelines also define "crime of violence":
U.S.S.G. § 4B1.2(a). The Application Note for "crime of violence" elaborates on what qualifies as a crime of violence in pertinent part as follows:
"Crime of violence" includes murder, manslaughter, kidnapping, aggravated assault, forcible sex offenses, robbery, arson, extortion, extortionate extension of credit, and burglary of a dwelling. Other offenses are included as "crimes of violence" if (A) that offense has as an element the use, attempted use, or threatened use of physical force against the person of another, or (B) the conduct set forth (i.e., expressly charged) in the count of which the defendant was convicted involved use of explosives (including any explosive material or destructive device) or, by its nature, presented a serious potential risk of physical injury to another.
Application Note 1, U.S.S.G. § 4B1.2.
Petitioner's conviction for escape, which underlies the present Petition, was pursuant to the following statute:
Whoever escapes or attempts to escape from the custody of the Attorney General or his authorized representative, or from any institution or facility in which he is confined by direction of the Attorney General, or from any custody under or by virtue of any process issued under the laws of the United States by any court, judge, or magistrate judge, or from the custody of an officer or employee of the United States pursuant to lawful arrest, shall, if the custody or confinement is by virtue of an arrest on a charge of felony, or conviction of any offense, be finedunder this title or imprisoned not more than five years, or both; or if the custody or confinement is for extradition, or for exclusion or expulsion proceedings under the immigration laws, or by virtue of an arrest or charge of or for a misdemeanor, and prior to conviction, be fined under this title or imprisoned not more than one year, or both.
In Begay, the United States Supreme Court addressed whether driving under the influence of alcohol is a "violent felony" under the Armed Career Criminal Act ("ACCA"). 8 553 U.S. 137 (2008). In determining that it was not a "violent felony," the Court stated that "'to give effect . . . to every clause and word' of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves." Id. at 143 (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)). Therefore, because driving under the influence did not involve "purposeful, violent, and aggressive conduct," unlike the crimes listed by name in the definition of "violent felony,"the Court would not treat driving under the influence as a violent felony covered by the ACCA. Id. at 145-48.
In Chambers, the Supreme Court tackled the issue of whether failure to report for weekend confinement was a "violent felony" under the ACCA. The Court held that when the statute of conviction criminalizes multiple forms of conduct—such as escape from custody, failure to report for custody, and failure to follow home confinement—courts should not look at the statute as a whole to determine if it covers "violent felonies;" rather, courts should treat the failure to report as a distinct crime from the others listed in the statute, and then determine if failure to report alone is a "violent felony." 555 U.S. at 125-28. The Supreme Court found that failure to report is in a sense passive, does not pose a serious risk of physical injury to others, and is therefore not a "violent felony."
Courts since then have characterized the Chambers decision as utilizing a modified categorical approach. For example, the Fourth Circuit...
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