Rhodes v. U.S.
| Decision Date | 02 August 2006 |
| Docket Number | No. 4:05-CV-2011.,4:05-CV-2011. |
| Citation | 443 F.Supp.2d 893 |
| Parties | Enrico RHODES, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Ohio |
Enrico Rhodes, FCI Schuylkill, Minersville, PA, Pro se.
Sharon L. Long, Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for Defendant.
Presently before the Court is Petitioner Enrico Rhodes' August 17, 2005 motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The United States opposes Rhodes' motion. On May 11, 2006, Magistrate Judge Limbert issued a report and recommendation, recommending that this Court dismiss the Petitioner's motion. On May 22, 2006, the Petitioner filed timely objections to the report and recommendation. For the reasons provided below, this Court ADOPTS the Magistrate Judge's report and recommendation and DENIES the Petitioner's motion to vacate, set aside, or correct his sentence.
On June 2, 2002, Youngstown, Ohio police officers responded to a report of gunshots fired from a car near a local tavern. In pursuing the car, the officers observed the Petitioner throw a firearm from the car window. The officers stopped the car and arrested the Petitioner. An additional officer arrived on the scene and retrieved the firearm from a nearby lawn. On November 5, 2002, after a trial before this Court, a jury found the Petitioner guilty of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). On January 22, 2003, this Court sentenced the Petitioner to eighty-six months in prison and three years supervised release.1 In calculating the sentencing range, this Court assessed a guideline base offense level of twenty and found a total of fifteen criminal history points.2 The Petitioner unsuccessfully appealed that conviction to the Sixth Circuit and to the Supreme Court. U.S. v. Rhodes, 102 Fed.Appx. 477 (6th Cir.2004), cert denied, 543 U.S. 949, 125 S.Ct. 365, 160 L.Ed.2d 265 (2004).
On August 17, 2005, the Petitioner filed the current motion generally alleging ineffective assistance of counsel at both the trial and appellate levels and trial court error with regard to sentencing. Specifically, the Petitioner alleges the following three grounds for relief under § 2255:
Supporting Facts: Counsel failed to research guideline issues, where clear errors were present and preserve them for direct review.
On October 26, 2005, this Court referred the petition to Magistrate Judge George S. Limbert, pursuant to Local Rule 72.1. On May 11, 2006, Magistrate Judge Limbert issued a report and recommendation, recommending that this Court dismiss the Petitioner's motion. The Petitioner timely objected. This Court reviews the Magistrate Judge's report de novo.
Section 2255 gives a federal prisoner post-conviction means of collaterally attacking a conviction or sentence that he alleges violated federal law. See In re Gregory, 181 F.3d 713, 714 (6th Cir.1999). Section 2255 provides four grounds upon which a federal prisoner may challenge his conviction or sentence:
1) that the sentence was imposed in violation of the Constitution or laws of the United States;
2) that the court was without jurisdiction to impose such sentence;
3) that the sentence exceeded the maximum authorized by law; or
4) that the sentence is otherwise subject to collateral attack.
Hill v. United States, 368 U.S. 424, 426-27, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962); 28 U.S.C. § 2255.
To prevail on a section 2255 motion alleging a constitutional error, the movant "must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999) (citing Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). Meanwhile, to prevail on a section 2255 motion alleging non-constitutional error, the movant must establish 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." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir.1990) (citing Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962)).
The Petitioner challenges his sentence on two basic grounds. First, the Petitioner argues that the Court incorrectly calculated the offense level and criminal history points. Second, the Petitioner claims that his counsel's failure to object to these calculations at the Petitioner's sentencing and to raise these issues on appeal amounts to ineffective assistance of counsel in violation of the Sixth Amendment. With his report and recommendation, Magistrate Judge Limbert found that the Court correctly calculated the offense level and criminal history points for the purpose of sentencing. Accordingly, the Magistrate also found that the Petitioner's counsel was not ineffective for failing to object to the Court's calculations. The Court reviews the Petitioner's motion for relief de novo.
At sentencing, the Court set the total offense level at twenty-two, after calculating a base offense level of twenty and adding a two level increase for obstruction of justice. The Petitioner challenges both the base offense level and the two-point enhancement.
Relying on the presentence investigation report ("PSR") prepared by United States Probation Office, this Court set the Petitioner's base offense level at twenty pursuant to U.S. Sentencing Guideline § 2K2. 1(a)(4)(A). Section 2K2.1 prescribes the base offense level for violations of 18 U.S.C. § 922(g)(1). According to § 2K2. 1(a)(4)(A), the Court must impose a base offense level of twenty for such a violation, where the defendant has a prior felony conviction for "either a crime of violence or a controlled substance offense." U.S. SETENCING GUIDELINES MANUAL § 2K2. 1(a)(4)(A) (2002).
In the instant case, the Petitioner claims that he does not have any prior convictions that would qualify him for a base offense level of twenty. In response, the government argues that the Petitioner's past conviction for escape qualifies as a crime of violence. The federal sentencing guidelines define "crime of violence" as:
any offense under federal or state law, punishable by imprisonment for a term exceeding one year, that
(1) has as an element the use, attempted use, or threatened use of physical force against the person of another, or
(2) is burglary of a dwelling, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
U.S. SENTENCING GUIDELINES MANUAL § 4B1.2(a) (2002).3 While § 4B1.2(a) does not include escape as one of the enumerated examples, the Sixth Circuit has held that escape carries a "serious potential risk of physical injury and thus constitutes a crime of violence under § 4B1.2." United States v. Harris, 165 F.3d 1062, 1068 (6th Cir.1999).
In November 2001, a Summit County, Ohio Grand Jury issued an indictment charging Petitioner Rhodes with one count of escape, a felony of the third degree, in violation of Ohio Rev.Code § 2921.34(A). On February 14, 2002, Rhodes pled guilty to a lesser included fourth degree felony offense of escape and the Summit County Court of Common Pleas sentenced him to a sixth-month term of imprisonment.
The Petitioner now argues that this conviction should not qualify as a violent crime because it was a mere "walk-away" escape and the incident did not involve a violent altercation or result in injury to anyone. According to the Petitioner, Harris commands this Court to examine a defendant's actual conduct at the time of his escape to determine whether or not his escape conviction qualified a crime of violence.
To the contrary, the Sixth Circuit in Harris, 165 F.3d at 1068, held that the crime of escape is categorically a crime of violence, stating as follows:
the district court was not free to conduct a "broad factual inquiry" into what Mr. Virges actually did in the course of his escape . . .. The approach to be followed by a sentencing court, rather, is "categorical" in nature; it requires the court to base its determination on the statutory definition of the crime.
(internal citations omitted). In holding as such, the Sixth Circuit adopted the Tenth Circuit's reasoning that "[e]very escape scenario is a powder keg, which may or may not explode into violence and result in physical injury to someone at any given time, but which always has the serious potential to do so" and that "even in a case where a defendant escapes from a jail by stealth and injures no one in the process, there is still a serious potential risk that injury will result when officers find the defendant and attempt to place him in custody." Id. (quoting United States v. Gosling, 39 F.3d 1140, 1142 (10th Cir. 1994)).
The Tennessee escape statute discussed in Harris is sufficiently similar to Ohio Rev.Code § 2921.34(A), which states in pertinent part that "[n]o person, knowing the person is under detention or being reckless in that regard, shall purposely break or attempt to break the detention, or purposely fail to return to detention, either following temporary leave granted for a specific purpose or limited...
To continue reading
Request your trial
-
Whitson v. United States
... ... Yet the AEDPA statute of limitations speaks of one ... “judgment, ” § 2244(d)(1)(A), not many. And ... Burton tells us the “judgment in a criminal ... case means sentence.” 549 U.S. at 156 []. Besides ... splitting each criminal judgment into two, the ... which counsel in his professional judgment decides not to ... present); see also Rhodes v. United States , 443 ... F.Supp.2d 893, 903-04 (N.D. Ohio 2006) (“Trial ... counsel's tactical decisions are not completely immune ... ...
-
Guzman v. United States
...appeal was not in error. Without first demonstrating error, the Petitioner cannot satisfy the Strickland test. Rhodes v. United States, 443 F. Supp. 2d 893, 901 (N.D. Ohio 2006). Accordingly, Petitioner's claims of ineffective assistance of counsel in this regard are without merit.III. TIME......