Moultrie v. United States, CRIM. CASE NO. 15-20262

• Decision Date: 26 May 2017
• Docket Number: CRIM. CASE NO. 15-20262
• Parties: CORTEZ DEONTE MOULTRIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Eastern District of Michigan

CORTEZ DEONTE MOULTRIE, Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CRIM. CASE NO. 15-20262

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

May 26, 2017

HON. SEAN F. COX

OPINION & ORDER

DENYING PETITIONER'S § 2255 MOTION TO VACATE SENTENCE AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

In Criminal Case No. 15-20262, Petitioner Cortez Deonte Moultrie ("Petitioner") pleaded guilty, pursuant to a Rule 11 Plea Agreement, to three counts of bank robbery, in violation of 18 U.S.C. § 2113(a); and two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). (Doc. # 52, Rule 11 Plea Agreement). This Court sentenced Petitioner to a total term of 471 months' imprisonment. (Doc. # 65).

The matter is now before the Court on Petitioner's pro se Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence. (Doc. # 73, Pet.'s Mo.). Petitioner asserts several grounds in support of his motion, all of which challenge his conviction or sentence. The Government has filed a response opposing Petitioner's motion, (Doc. # 78, Gov't Resp.), and Petitioner has filed a reply (Doc. # 80). In his reply, Petitioner raises an ineffective assistance of counsel claim in addition to the claims raised in his initial petition.

Because the files and records of the case conclusively establish that Petitioner is not entitled to relief as to any of the claims set forth in this § 2255 motion, an evidentiary hearing is not necessary and the decision is therefore ready for a decision by this Court. For the reasons set forth below, Petitioner's motion to vacate will be DENIED. Moreover, the Court declines to issue a certificate of appealability.

BACKGROUND

Plea Agreement

On February 24, 2016, Petitioner pleaded "guilty to Counts 1, 3, 4, 5, and 6 of the First Superseding Indictment, which charges three counts of bank robbery, in violation of 18 U.S.C. § 2113(a); and two counts of brandishing a firearm during and in relation to a crime of violence, in violation of 18 U.S.C. § 924(c). The Rule 11 Plea Agreement provided the following factual basis for Petitioner's guilty plea:

Count 1

On or about January 20, 2015, in the Eastern District of Michigan, the defendants, CHARLES ALBERT WALKER and CORTEZ DEONTE MOULTRIE, while aiding and abetting each other, by force, violence and intimidation did take from the person or presence of another, money, namely $42,947.96, belonging to and in the care, custody, control, management, and possession of the Key Bank, 23116 Telegraph Road, Brownstown, Michigan, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation.

Defendants came into the bank brandishing their handguns. They ordered everyone to the floor. They located the bank manager and demanded that he open the vault. After stealing cash, the defendants ordered everyone into the vault, andshut the door behind them.

Counts 3 and 4

On or about March 25, 2015, in the Eastern District of Michigan, the defendants CHARLES ALBERT WALKER and CORTEZ DEONTE MOULTRIE, while aiding and abetting each other, by force, violence, and intimidation did take from the person or presence of another, money, namely $17,443.00, belonging to and in the care, custody, control, management, and possession of the Huntington National Bank, 1821 North Perry, Pontiac, Michigan, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation.

Defendants came into the bank brandishing their handguns. They took cash out of a drawer, then racked their guns, ordering the bank employees to go into the vault area. They stole cash from the safe, ordered everyone to the floor, and shut them in the vault, taking the employee's keys.

Counts 5 and 6

On or about April 20, 2015, in the Eastern District of Michigan, the defendants CHARLES ALBERT WALKER and CORTEZ DEONTE MOULTRIE, while aiding and abetting each other, by force, violence, and intimidation did take from the person or presence of another, money, namely $132,449.00, belonging to and in the care, custody, control, management, and possession of the Comerica Bank, 35320 Jefferson Avenue, Harrison Township, Michigan, a bank whose deposits were then insured by the Federal Deposit Insurance Corporation.

Defendants, wearing security guard jackets, entered the bank, brandishing their handguns at employees and visitors. They ordered everyone to the ground and demanded that someone open the vault and warned them not to pull any alarms. Walker threatened to kill the manager.

(Rule 11 Plea Agreement at pgs. 3-5) (emphasis in original). The Plea Agreement further provided that there were no sentencing disputes¹ and that Petitioner's guideline range was 121 -151 months' imprisonment + 505 - 535 months' imprisonment. Petitioner also agreed to waive any right he may have to appeal his conviction and sentence (if the sentence imposed did not exceed the maximum recommendation allowed by the agreement). (Rule 11 Plea Agreement at p. 12).

Sentencing

On June 22, 2016, this Court sentenced Petitioner to: 87 months on Counts 1, 3, and 5, to be served concurrently; to 84 months on Count 4, to run consecutive to Counts 1, 3, and 5; and to 300 months on Count 6, to run consecutive to Counts 1, 3, 4, and 5. (Doc. # 65). Petitioner did not file a direct appeal.

On October 28, 2016, Petitioner filed the instant pro se Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255. (Pet.'s Mo.). In it, Petitioner asserts four grounds for relief. First, Petitioner argues that his multiple § 924(c) convictions violate the double jeopardy clause because he used the same firearm in all three bank robberies, i.e., all three robberies constituted a "single crime" and Petitioner should have only received one § 924(c) conviction. Second, Petitioner argues that certain enhancements applied to his base offense level no longer apply because those enhancements only apply to crimes of violence and that bank robbery does not constitute a crime of violence under Johnson and Beckles. Third, Petitioner seeks relief from his § 924(c) convictions based on Johnson and Beckles. Fourth, Petitioner argues that his multiple § 924(c) convictions violate the double jeopardy clause and that § 924(c) is constitutionally vague in light of Johnson. In his reply, Petitioner asserts for the first time that he was denied effective assistance of counsel when his trial attorney failed "to object to his sentence under the principles of Johnson."

LEGAL STANDARD

Petitioner's motion is brought pursuant to 28 U.S.C. § 2255, which provides:

A prisoner in custody under a sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence imposed was in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such a 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.

28 U.S.C. § 2255. To prevail on a § 2255 motion, "a petitioner must demonstrate the existence of an error of constitutional magnitude which has a substantial and injurious effect or influence on the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a "fundamental defect which inherently results in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999).

ANALYSIS

As a threshold matter, the Government argues that Petitioner has procedurally defaulted his instant claims. Assuming, without deciding, that Petitioner has not procedurally defaulted his claims, he is still not entitled to the relief he seeks for the reasons below.

A. Petitioner's Bank Robbery and Firearms Convictions Do Not Violate The Double Jeopardy Clause

First, Petitioner argues that because he used the same firearm in each of the three charged robberies, his actions constitute a "single crime spree." (Pet.'s Mo. at Pg ID 422). As such,Petitioner concludes that "the imposition of consecutive sentence under subsection 924(c) for using multiple weapons during a single crime of violence would impinge on fundamental double jeopardy." (Id.). Petitioner's argument is misplaced.

The double jeopardy clause prohibits courts from imposing multiple punishments for the same offense. Whalen v. United States, 445 U.S. 684, 688 (1980). "The general test for compliance with the double jeopardy clause looks to 'whether each provision requires proof of a fact which the other does not.'" United States v. Gibbons, 994 F.2d 299, 301 (6th Cir. 1993) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). However, this test does not apply "where Congress has authorized punishments which would otherwise be inappropriately cumulative." Id. (citing Whalen, 445 U.S. at 688).

Here, Petitioner essentially argues that because he used the same firearm in the three armed robberies, he should only be convicted with one § 924(c) charge. Petitioner is wrong. As the Government correctly points out, each § 924(c) conviction attached to a separate armed robbery, and each robbery conviction required proof of different facts (i.e., dates, locations, circumstances, etc.). The fact that Petitioner allegedly used the same firearm for three separate robberies is of no import.

B. Petitioner May Not Rely on Johnson and Beckles to Collaterally Attack his § 2113(a) and § 924(c) convictions

In Ground Two, Petitioner appears to be relying on Johnson v. United States, 135 S.Ct. 2251 (2015) and Beckles v. United States, 197 L.Ed. 2d 145 (2017) to "challenge guidelines enhancements" he received under U.S.S.G. §2B3.1. Petitioner first argues that bank robbery under 18 U.S.C. § 2113(a)...