Mitchell v. United States

Decision Date08 January 2016
Docket NumberCRIMINAL. NO. 12-00299-KD-N,CIVIL. ACT. NO.: 14-0574-KD-N
CourtU.S. District Court — Southern District of Alabama

Scottie Mitchell ("Mitchell"), a federal prisoner proceeding pro se, has filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (Doc. 58)1 (the "§ 2255 Motion") challenging his sentence in the above-styled criminal action. The United States of America ("Respondent") has timely filed a response in opposition (Doc. 62) to the § 2255 Motion, and Mitchell has filed a reply (Doc. 64) in support of his § 2255 Motion. The § 2255 Motion is now under submission and is ripe for adjudication.

This matter has been referred to the undersigned United States Magistrate Judge for entry of a report and recommendation in accordance with 28 U.S.C. § 636(b)(1)(B)-(C), Rule 8(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts, and SD ALA LR 72.1(c). Upon consideration, and for the reasons stated herein, it is RECOMMENDED that Mitchell's § 2255 Motion (Doc. 58) be DENIED and that the claims therein be DISMISSED. It is further RECOMMENDED that Mitchell be found not entitled either to a Certificate of Appealability or to proceed in forma pauperison appeal.

I. Background.

On July 20, 2011, deputies with the Baldwin County, Alabama Sheriff's Office responded to a report of a suspicious vehicle in the area. (Doc. 47 at 3). The deputies located the vehicle at a gas station just off Interstate 10 (I-10). (Id.). The occupants of the vehicle, Scottie Mitchell and his girlfriend, observed the patrol car and fled eastbound on I-10. (Id.). The deputies activated their lights and siren and gave chase to Mitchell's vehicle. In attempt to elude the deputies, the vehicle traveled at speeds in excess of 110 miles per hour and weaved in and out of traffic. (Id.). The chase ended when Mitchell's vehicle crashed into a ditch at the Florida state line. (Id.). The deputies detained Mitchell, while his girlfriend was taken to the emergency room for injuries sustained. Upon search of the vehicle, the deputies located a bag of marijuana and various stolen items. A Smith and Wesson model CTG, .38-caliber revolver was found in the woods beside the vehicle. (Id. at 4). Mitchell was advised his Miranda rights and confessed that the items found in his vehicle, including the revolver were stolen from a residence in Baldwin County, Alabama that he and his girlfriend burglarized. (Id.). Mitchell was found guilty of theft of property in violation of § 13A-7-7 of the Code of Alabama2 and sentenced pursuant to the Habitual Offender Act after the court found that Mitchell was previously convicted of one prior adult felony, a 1997 third-degree burglary conviction in Pearl River County, Mississippi. (Id. at 10-11).

On August 2, 2011, the case was referred to an Alcohol Tobacco and Firearms specialist for possible federal firearms violations. (Id. at 4). It was determined that the Smith and Wesson revolver recovered from the search of Mitchell's vehicle was manufactured outside the state of Alabama, thereby affecting interstate commerce, and Mitchell was indicted on two counts of firearm violations in the Southern District of Alabama on December 27, 2012. (Id.). Count one charged that on or about July 20, 2011, Mitchell having been convicted of a crime punishable by imprisonment for a term exceeding one year (that being commercial burglary on November 26, 1997, in the Circuit Court of Pearl River County, Mississippi) did knowingly possess, in and affecting commerce, a firearm in violation of 18 U.S.C. § 922(g)(1). (Doc. 1 at 1). Count two charged that on or about July 20, 2011, Mitchell did receive, possess, conceal, store, barter, sell and dispose of a stolen firearm, which Mitchell knew and had reasonable cause to believe had been stolen and which had been previously shipped and transported in interstate commerce, in violation of 18 U.S.C. § 922(j). (Id.). On February 13, 2013, a federal warrant was issued for Mitchell's arrest. (Doc. 4).

However, in the time between the July 20, 2011, Baldwin County offense and the federal firearm offense subject of this petition, Mitchell accrued four other criminal charges:

1. On November 1, 2011, in Baldwin County, Alabama, Mitchell was charged with and found guilty of third-degree assault. He was sentenced on December 15, 2011. (Doc. 47 at 11)
2. On December 7, 2011, in Baldwin County, Alabama, Mitchell was charged with and found guilty of third-degree burglary. He was sentenced on February 16, 2012. (Id.).
3. On February 24, 2012, in Houma, Louisiana, Mitchell was charged with and found guilty of theft over $1,500. He was sentenced on May 24, 2012. (Id. at 12).
4. On February 24, 2012, in Houma, Louisiana, Mitchell was charged with and pled guilty to the unauthorized use of an access card. He was sentenced on May 24, 2012. (Id.).

Consequently, at the time the federal arrest warrant was issued for Mitchell, he was imprisoned in the State of Louisiana on the above-mentioned February 24, 2014 charges. The Southern District of Alabama petitioned for writ of habeas corpus ad prosequendum, which was granted, and the Louisiana Department of Corrections released Mitchell into federal custody on May 23, 2013, to face firearm charges. (Docs. 20-22).

On July 30, 2013, Mitchell pleaded guilty to count one of the indictment pursuant to a written plea agreement, and he executed a "Factual Resume," in which he admits the factual basis for his conviction. (Doc. 40). A Presentence Investigation Report ("PSI report") was prepared by the probation office. The PSI report utilized the 2012 Guidelines Manual to determine Mitchell's Offense Level for violation of 18 U.S.C. § 922(g)(1). (Doc. 47 at 5; see also U.S.S.G. § 2K2.1). Based on U.S.S.G. § 2K2.1(b)(4)(A), two levels were added to Mitchell's base offense level because the offense involved a stolen firearm and four levels were added, pursuant to U.S.S.G. § 2K2.1(b)(6)(B), because Mitchell possessed the firearm in connection with another felony offense, the July 20, 2011 burglary charge. (Doc. 47 at 5). An additional two levels were added because Mitchell recklessly created a substantial risk of death or seriously bodily injury to another person in the course of fleeing from a law enforcement officer. (Id.; see also U.S.S.G. § 3C1.2). The PSI reported an adjusted offense level of28 for Mitchell. (Doc. 47 at 5). However, due to Mitchell's acceptance of responsibility and timely plea of guilty, Mitchell's total offense level was decreased to 25. (Doc. 47 at 6). The PSI calculation of Mitchell's criminal history points was 20, placing him in Category VI for sentencing purposes;3 this included a two-point increase due to the fact that Mitchell was on probation on July 20, 2011 when he committed the offense in question. (Doc. 47 at 9-10, 12; see also U.S.S.G. § 4A1.1(d)).

Based upon Mitchell's total offense level of 25 and criminal history category of VI, the advisory guideline imprisonment range was 110 to 137 months, and the statutory provision of Mitchell's offense, § 922(g)(1), provided a maximum term of imprisonment of 10 years. (Doc. 47 at 17). Therefore, the sentencing guideline range for Mitchell was 110 months to 120 months, and the government recommended sentencing Mitchell at the low end of the range. (Id.). The Court followed the government's recommendation and imposed a 110-month sentence of imprisonment on December 11, 2013.4 (Doc. 52).

On December 5, 2014, Mitchell filed pro se the present § 2255 motion challenging the effectiveness of his counsel's failure to object to certain PSI enhancements that increased the length of his imprisonment sentence, and Mitchell seeksenforcement of the Court's recommendation to the Bureau of Prisons to run his state and federal imprisonment sentences concurrent. (Doc. 58).5

II. Applicable Law
A. General Standards Under § 2255

Title 28 U.S.C. § 2255 "permits a federal prisoner to bring a collateral challenge by moving the sentencing court to vacate, set aside, or correct the sentence." Winthrop-Redin v. United States, 767 F.3d 1210, 1215-16 (11th Cir. 2014). Section 2255 provides:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence ... If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

28 U.S.C. § 2255(a)-(b).

"Once the defendant's chance to appeal has been waived or exhausted," a court is "entitled to presume he stands fairly and finally convicted, especially when, as here, healready has had a fair opportunity to present his federal claims to a federal forum." United States v. Frady, 456 U.S. 152, 164, 102 S. Ct. 1584, 71 L. Ed. 2d 816 (1982). "[A] collateral challenge, such as a § 2255 motion, may not be a surrogate for a direct appeal." Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (per curiam) (citing Frady, 456 U.S. at 165 (collecting cases)). "Because collateral review is not a substitute for a direct appeal, the general rules have developed that: (1) a...

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