Randolph v. U.S., Criminal No. 3:08-1265-MJP

CourtUnited States District Courts. 4th Circuit. United States District Court of South Carolina
Writing for the CourtMATTHEW J. PERRY, JR.
PartiesAltorre Randolph, Petitioner, v. United States of America, Respondent.
Decision Date06 May 2011
Docket NumberCriminal No. 3:08-1265-MJP

Altorre Randolph, Petitioner,
United States of America, Respondent.

Criminal No. 3:08-1265-MJP


Dated: May 6, 2011


This case is before the Court pursuant to a motion by Petitioner, Altorre Randolph ("Petitioner"), proceeding pro se, for relief under 28 U.S.C. § 2255. The United States of America ("Respondent") opposes the petition and moves for summary judgment in its favor pursuant to Rule 56(b) of the Federal Rules of Civil Procedure.


The record shows that on July 13, 2008, Petitioner was arrested in Columbia, South Carolina after law enforcement officials performed a "Terry Frisk" on him and found him to be in possession of a loaded.357 revolver,.357 caliber ammunition, and.38 caliber ammunition. Petitioner was prohibited from legally possessing firearms or ammunition because he had been previously convicted of prior felony offenses. Thereafter, on July 16, 2008, Petitioner was named in a one-count Indictment charging him with being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Indictment, Docket Entry No. 1.) On January 6, 2009, the Respondent's attorney filed an Information notifying Petitioner he was subject to increased penalties pursuant to 18 U.S.C. § 924(e) because of his prior state convictions for assault and battery of a high and aggravated nature, trafficking crack cocaine, and four convictions for strong arm

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robbery. (Information, Docket Entry No. 10.) On March 17, 2009, in accordance with the terms of a written plea agreement, Petitioner pled guilty to the aforementioned one-count Indictment. On June 9, 2009, this Court sentenced Petitioner to a term of imprisonment for the statutory mandatory minimum sentence of one hundred eighty (180) months. (Judgment, Docket Entry No. 42.) Petitioner did not file a notice of appeal regarding the sentence he received.

On June 21, 2010, Petitioner filed the instant petition to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. Petitioner contends that § 2255 relief is appropriate because his court-appointed attorney was ineffective for failing to contest his status as an armed career criminal and his sentence was issued in violation of the Sixth Amendment and United States v. Booker, 543 U.S. 220 (2005). Respondent filed opposition to Petitioner's petition and a motion for summary judgment on July 26, 2010.


A. Standard

Section 2255 requires a petitioner to prove by a preponderance of the evidence that his "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...." 28 U.S.C. § 2255(a). If this showing is made, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as may appear appropriate." Id If, on the other hand, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court may summarily deny the petition without holding a hearing. Id.

Generally, when a petitioner attacks his sentence based upon errors that could have been but

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were not pursued on direct appeal, the movant must show cause and actual prejudice resulting from the errors of which he complains or he must demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir.1994)). However, where, as here, Respondent has not contended that Petitioner's claims are procedurally defaulted, the court need not determine whether cause and prejudice excuse any default before deciding the merits. See Trest v. Cain, 522 U.S. 87, 89 (1997) ("procedural default is normally a defense that the State is obligated to raise and preserve if it is not to lose the right to assert the defense thereafter."). Moreover, this Petitioner alleges ineffective assistance of counsel and such a claim generally cannot be raised on direct appeal and is properly addressed on collateral review. Massaro v. United States, 538 U.S. 500, 504 (2003) (holding that federal habeas petitioner may bring ineffective assistance claim in § 2255 proceedings whether or not he could have raised the claim on direct appeal).

B. Designation as Armed Career Criminal

The Sixth Amendment requires that, "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Petitioner asserts that his designation as an armed career criminal is in violation of the Sixth Amendment and the Supreme Court's rulings in United States v. Booker, 543 U.S. 220 (2005), Shepard v. United States, 544 U.S. 13 (2005), and Almendares-Torres v. United States, 523 U.S. 224 (1998), which he argues prohibit sentencing him as an armed career criminal unless a jury finds (or he admits) the facts required by the statute. Petitioner further argues that the Court erred in finding

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that his prior state court conviction 'are violent'" or "that they should be treated 'separately when the state in which they originated treated them jointly.'" (Petition, Docket No. 48, p. 10.) Petitioner concludes that since he has not admitted facts to establish that he was convicted of three or more violent felonies or serious drug offenses committed on separate occasions, nor were these facts found by a jury, an enhanced sentence is not justified.

The armed career criminal enhancement that Petitioner complains of is found in the Armed Career Criminal Act ("ACCA"), which provides that a defendant convicted of a weapon offense under 18 U.S.C. § 922(g)(1) shall receive a mandatory minimum fifteen year sentence if he has "three previous convictions by any court... for a violent felony or a serious drug offense, or both, committed on occasions different from one another." 18...

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