McKinney v. Warden, FCC Coleman-Medium

• Decision Date: 04 May 2012
• Docket Number: Case Nos. 5:09–cv–163–Oc–10TBS, 5:11–cv–111–Oc–10TBS.
• Citation: 870 F.Supp.2d 1351
• Parties: Sedrick Latroy McKINNEY, Petitioner, v. WARDEN, FCC COLEMAN—MEDIUM, Respondent. Toddrick Williams, Petitioner, v. Warden, FCC Coleman—Medium, Respondent.
• Court: U.S. District Court — Middle District of Florida

870 F.Supp.2d 1351

Sedrick Latroy McKINNEY, Petitioner,

v.WARDEN, FCC COLEMAN—MEDIUM, Respondent.

Toddrick Williams, Petitioner,

v.Warden, FCC Coleman—Medium, Respondent.

Case Nos. 5:09–cv–163–Oc–10TBS, 5:11–cv–111–Oc–10TBS.

United States District Court,

M.D. Florida,

Ocala Division.

May 4, 2012.

James A. Wardell, Wardell & Quezon, PA, Tampa, FL, for Petitioner.

Peggy Morris Ronca, Orlando, FL, Colleen D. Murphy–Davis, U.S. Attorney's Office, Tampa, FL, for Respondent.

ORDER

WM. TERRELL HODGES, District Judge.

In Gilbert v. United States, 640 F.3d 1293 (11th Cir.2011)en banc, the court held that 28 U.S.C. §§ 2241 and 2255, properly construed under principles governing the finality of judgments, prevent a federal prisoner from maintaining a second or successive post conviction petition for a writ of habeas corpus claiming that an intervening change in the law has rendered his sentence illegal, unless, perhaps, the sentence as imposed exceeds the statutory maximum term of commitment applicable to the offense of conviction, or the petitioner can show that he is actually innocent. The court expressly left undecided the question whether a successive motion for habeas relief may be entertained where the asserted error in sentencing resulted in a term of commitment above the statutory maximum that would have applied but for the error. See Gilbert, 640 F.3d at 1306–1307; and 1319, n. 20.

The two cases sub judice involve federal prisoners seeking writs of habeas corpus under 28 U.S.C. § 2241 setting aside their respective sentences on the ground that the terms of commitment they received were above the statutory maximum that would have applied but for a sentencing error now recognized by more recent decisional authority. These cases squarely present, in other words, the issue not reached and not decided in Gilbert.

Because they do involve the same controlling issue of law, it is appropriate that these cases be considered and decided together.

The Court will begin by reviewing the en banc decision in Gilbert, will then take up the individual circumstances of the cases being decided, and will end by analyzingthe impact of Gilbert on these cases. The Court's conclusion is that Gilbert controls these cases and that the petitions under 28 U.S.C. § 2241 will be dismissed.

The Decision In Gilbert

Ezell Gilbert was convicted of a drug offense in violation of 21 U.S.C. § 841(a) punishable by a term of commitment of ten years to life under 21 U.S.C. § 841(b)(1)(A). At his sentencing in 1997 he was classified as a career offender under the United States Sentencing Guidelines. As a career offender his sentencing range under the then mandatory Guidelines was 292 to 365 months whereas his sentencing range absent career offender status was 151 to 188 months. See Gilbert, 640 F.3d at 1299–1300. Gilbert was sentenced to an enhanced term of 292 months—the low end of the enhanced Guidelines range but at least 104 months (8 1/2 years) more than he would have been eligible to receive but for the career offender classification.

At his sentencing hearing and on his direct appeal Gilbert contended than one of his prior state court convictions for carrying a concealed weapon should not be treated as a predicate crime of violence for purposes of triggering the career offender enhancement under the Guidelines. He lost that argument ( United States v. Gilbert, 138 F.3d 1371 (11th Cir.1998)), but his appeal preserved the issue against any future assertion of a procedural bar.¹

In 2008, Gilbert's position concerning his prior conviction was vindicated by Begay v. United States, 553 U.S. 137, 128 S.Ct. 1581, 170 L.Ed.2d 490 (2008) and United States v. Archer, 531 F.3d 1347 (2008). Carrying a concealed weapon should not be treated as a crime of violence under the Guidelines.

In 2009, twelve years after imposition of his sentence, Gilbert filed a motion under 28 U.S.C. § 2241 citing Begay and Archer for his reasserted claim that his sentence was illegal.² “The problem for Gilbert was that his Archer based claim clearly was barred by ... the second and successive petitions provision [of] 28 U.S.C. § 2255(h).” Gilbert, 640 F.3d at 1302. The issue, therefore, was whether the savings clause in § 2255(e) permitted resurrection of Gilbert's claim.³ The district court held that it did not, but on appeal a panel of the court of appeals held otherwise. Gilbert v. United States, 609 F.3d 1159 (11th Cir.2010).

The Court of Appeals, sitting en banc, granted rehearing, vacated the panel opinion, and held (640 F.3d at 1324):

To put our reasoning and the result in the broader terms with which we began this opinion, a federal prisoner's right to have errors in the calculation of his sentence corrected is not without limits. After a case has passed the stage of a first § 2255 proceeding the right to error correction is narrowly limited by principles of policy that reside in the finality of judgment neighborhood of the law—principles which further critically important interests. The restrictions that those finality of judgment principles place on error correction have been reinforced and strengthened by AEDPA provisions such as § 2255(e) & (h), and they have been embodied in decisions of the Supreme Court and this Court. The result in this case is that Gilbert must serve the sentence that was imposed on him fourteen years ago.

The Cases at Bar

1. The McKinney Case

Sedrick Latroy McKinney was indicted (with co-offender Alonzo Hall) in the Tampa Division of the Middle District of Florida on October 28, 1992. McKinney was charged in Counts One and Two with separate violations of 18 U.S.C. § 922(g) committed on September 26, 1992, namely, possession of a firearm by a convicted felon (Count One), and possession of a quantity of ammunition by a convicted felon (Count Two). The penalty for those offenses pursuant to 18 U.S.C. § 924(a)(2) was a term of imprisonment of not more than ten years. However, under 18 U.S.C. § 924(e)(1), the Armed Career Criminal Act (“ACCA”), a person convicted of an offense prohibited by § 922(g) who has three previous convictions “for a violent felony or a serious drug offense” becomes subject to a sentence of not less than fifteen years and up to life imprisonment. McKinney had the requisite prior convictions including one for carrying a concealed weapon which was treated as a violent felony. His sentence was therefore enhanced to a term of 262 months (21.8 years). He appealed and the court of appeals held that “[t]he district court did not err in using McKinney's conviction for carrying a concealed weapon to enhance his sentence under the ACCA.” United States v. Hall, 77 F.3d 398, 401–402 (11th Cir.1996). However, the court of appeals did reverse the imposition of separate albeit concurrent sentences for Counts One and Two because “the simultaneous possession of a firearm and ammunition should be punished as one offense.” Id. at 402. The case was remanded for resentencing which occurred on August 13, 1996. The district court reimposed the sentence of 262 months as to Count One and, pursuant to the directions given by the court of appeals, the sentence as to Count Two was vacated and set aside. There was no appeal from that judgment; and, in a motion filed in 1997 under 28 U.S.C. § 2255, McKinney did not raise any issue about the use of his conviction for carrying a concealed weapon as an enhancer under ACCA.⁴

On April 16, 2009, almost thirteen years after his second and final sentencing hearing in 1996, McKinney filed his present petition under 28 U.S.C. § 2241 asserting that his sentence was illegal because his concealed weapon conviction was treated as a violent felony and used as an enhancer contrary to the intervening decisions in Begay and Archer, the same claim made in Gilbert. On April 30, 2010, this Court entered an order dismissing the petition without prejudice because it was his second petition for habeas relief and he had not obtained leave to file from the court of appeals as required by 28 U.S.C. § 2255(h) and 28 U.S.C. § 2244(b)(3). ⁵

McKinney appealed to the court of appeals, and the United States responded with a confession of error. The Court of Appeals then entered an order on July 29 2011, stating (Case No. 5:09–cv–163, Doc. 26):

The government has responded with a confession of error, conceding that the § 2241 petition has merit and should have been granted. The government's concession was not before the district court. Accordingly, this Court construes the government's response as a motion to remand for further proceedings in order to give the district court an opportunity to reconsider its denial of the § 2241 petition in light of the government's concession, and grants that motion.

The district court's order dismissing the Petitioner–Appellant's § 2241 petition is VACATED, and the case is REMANDED to the district court for further consideration in light of the government's concession that the petition should be granted.

As an aside, it is apparent that the Government overlooked the fact that this Court had dismissed the petition on procedural grounds—failure to secure permission from the court of appeals before submitting a second or successive petition. Nevertheless, the Government proceeded directly in the court of appeals to a concession of error concerning the merits. Still, the court of appeals has remanded the case to this Court for consideration of that concession so that any jurisdictional issue concerning the necessity of leave or permission to file a successive petition is rendered moot.⁶

2. The Williams Case

Williams and a co-offender were indicted in the Tampa Division of the Middle District of Florida on March 4, 2004. Williams was charged with three felon-in-possession of firearms offenses (Counts Four through Six) all committed on November 22, 2003, in violation of 18 U.S.C. § 922(g). He entered into a plea agreement and pleaded guilty to Count Four. The plea agreement stated—and the parties a...