Shippy v. United States

• Decision Date: 16 June 2015
• Docket Number: Civil Case No. 1:13–cv–38–MR.,[Criminal Case No. 1:09–cr–23–MR–10].
• Citation: 112 F.Supp.3d 355
• Parties: Perry Roger SHIPPY, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Western District of North Carolina

112 F.Supp.3d 355

Perry Roger SHIPPY, Petitioner,

v.UNITED STATES of America, Respondent.

Civil Case No. 1:13–cv–38–MR.

[Criminal Case No. 1:09–cr–23–MR–10].

United States District Court, W.D. North Carolina, Asheville Division.

Signed June 16, 2015.

Perry Roger Shippy, Butner, NC, pro se.

MEMORANDUM OF DECISION AND ORDER

MARTIN REIDINGER, District Judge.

THIS MATTER is before the Court on the Petitioner's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255, [Doc. 1]; Petitioner's First Supplement to his 2255 Motion, [Doc. 2]; Petitioner's Second Supplement to his 2255 Motion, [Doc. 3]; Petitioner's First Supplement to his 2255 Memorandum,¹ [Doc. 4]; and Petitioner's Second Supplement to his 2255 Memorandum, [Doc. 5].

BACKGROUND

On April 7, 2009, the Petitioner was named in a Bill of Indictment along with nine other persons and charged with a drug conspiracy in one count and using a communications facility to commit the drug conspiracy in a second count. [Criminal Case No. 1:09–cr–23–MR ("CR") Doc. 1]. As to the charged conspiracy, the Indictment alleged that it involved 50 or more grams of cocaine base and more than 5 kilograms of cocaine hydrochloride thus subjecting Petitioner to imprisonment within a statutory range of not less than 10 years or more than life in accordance with (then applicable) 21 U.S.C. § 841(b)(1)(A). [Id. ]. Further, the Indictment alleged that the ten named defendants also conspired with Kenneth Lee Foster and Dennis Lamar Bruton to possess with the intent to distribute crack cocaine. These latter two persons were indicted in a separate case in this District under file number 1:09–cr–13. [Id. ].

Following Petitioner's arrest, he made his initial appearance before Magistrate Judge Dennis Howell on April 9, 2009. [CR Docket Sheet]. The Magistrate Judge found Petitioner to be indigent and appointed counsel. [CR Doc. 25]. During the week of May 4, 2009, Petitioner filed pro se motions to: compel discovery [CR Doc. 97], appeal his order of detention [CR Doc. 98], suppress evidence [CR Doc. 102], and dismiss the Indictment [CR Doc. 103]. The Court denied these motions without prejudice as the Petitioner was represented by counsel. [CR Doc. 115]. On May 18, 2009, Petitioner filed a pro se motion to sever his case from his codefendants. [CR Doc. 129]. Like before, the Court denied this motion without prejudice as the Petitioner was represented by counsel. [CR Doc. 132].

On May 11, 2009, the Government filed a 21 U.S.C. § 851 Information notifying Petitioner that he faced enhanced punishment due to his 1993 North Carolina felony drug conviction. [CR Doc. 112]. The Government then moved to join for trial the case involving Petitioner with cases filed under numbers 1:09–cr–13 and 1:09–cr–16 in this District. [CR Doc. 148]. The Court granted the Government's motion for joinder. [CR Doc. 168].

Petitioner's case came on for jury trial July 6, 2009. The jury returned guilty verdicts against Petitioner on both counts. [CR Doc. 173]. Further, the jury attributed "less than 50 grams of cocaine base" to Petitioner based upon his role in the drug conspiracy. [Id. ].

Prior to the Petitioner's sentencing, a United States probation officer prepared a Presentence Report. [CR Doc. 186]. Based upon the jury's drug finding and the evidence adduced at trial, and without objection by the Petitioner, the probation officer determined that Petitioner was responsible for between 5 and 20 grams of cocaine base, which yielded a Base Offense Level of 24 under the Guidelines. [Id. at 6]. There being no enhancements or deductions, 24 was his Total Offense Level as well. With regard to Petitioner's past record, the probation officer determined Petitioner had accumulated twelve criminal history points based on prior convictions placing him in Criminal History Category V. [Id. at 14]. Taking Petitioner's Total Offense Level of 24 together with his Criminal History Category of V, the Guidelines' sentencing table indicated a Guidelines range of imprisonment between 92 and 115 months. However, due to the Government's § 851 Information, in conjunction with the jury's drug finding of less than 50 grams of cocaine base attributable to Petitioner, the then-applicable version of 21 U.S.C. § 841(b)(1)(B) required a term of imprisonment of not less than 120 months for Petitioner's conviction on Count One. [Id. at 20]. Therefore, the Petitioner's Guidelines range for that offense became 120 months pursuant to U.S.S.G. § 5G1.1.

The Court conducted the Petitioner's sentencing hearing on August 25, 2009. [CR Doc. 225]. At the hearing, the Court adopted the facts contained in the PSR and determined that the Petitioner's applicable Guidelines range was 120 months. [CR Doc. 194]. After considering the 18 U.S.C. § 3553(a) factors and hearing from the parties, the Court sentenced Petitioner to a 120–month term of imprisonment on Count One, a 96–month term of imprisonment on Count Two to run concurrently with the sentenced imposed for Count One, as well as concurrent eight and three year terms of Supervised Release, respectively, on Counts One and Two, and a $200.00 Special Assessment. [CR Doc. 193].

The Court entered its Judgment on August 27, 2009. [Id. ]. Petitioner filed his notice of appeal the following day. [CR Doc. 195]. The United States Court of Appeals for the Fourth Circuit affirmed Petitioner's conviction and sentence in an unpublished opinion filed on April 24, 2012. [CR Doc. 330].

On February 11, 2013, Petitioner filed the instant motion pursuant to 28 U.S.C. § 2255. [Doc. 1]. In his motion, and his subsequent four supplements, the Petitioner's pro se filings contain many redundant arguments. Notably, some of the issues he has raised in this action were resolved in the appeal of his criminal case. The Court will list the Petitioner's claims in the order they were filed.

A. Original 2255 Motion. [Doc. 1].

In his original Motion, Petitioner attacks his conviction and sentence on four grounds.

1. Under "Ground one," Petitioner asserts his pro se pretrial motions were unlawfully denied. [Doc. 1 at 4].

2. Under "Ground two," Petitioner alleges insufficient evidence existed to support the jury's verdict finding Petitioner guilty of the drug conspiracy. [Id. ].

3. Under "Ground three," Petitioner alleges insufficient evidence existed to support the jury's verdict finding Petitioner guilty of using a communications facility to commit the drug offense. [Id. ].

4. Under "Ground four," Petitioner alleges his sentence should be reduced based upon the provisions of the Fair Sentencing Act, Pub.L. No. 111–220, 124 Stat. 2372 (effective Aug. 3, 2010, herein "FSA") (reducing drug quantity thresholds necessary to trigger mandatory minimum sentences). [Id. at 5].

B. Original Memorandum Accompanying 2255 Motion. [Doc. 1].

Attached to Petitioner's 2255 Motion was a "Memorandum of Law" wherein Petitioner argues issues entirely different from those set out in his 2255 Motion. The Court will thus treat this original Memorandum as simply a continuation of Petitioner's 2255 Motion. Petitioner's original Memorandum contains five arguments.

1. Petitioner begins his Memorandum contending that his base offense level under the Guidelines should have been calculated using a crack-to-powder cocaine ratio of 1:1 not 100:1. [Id. at 7–9, 11–13].

Petitioner next asserts that his 1993 felony drug conviction from North Carolina, the predicate offense listed by the Government in its § 851 Information, is invalid and thus inappropriate for use as an enhancement. He contends such conviction is simply too old, and further, that it was brought about by means of a coerced plea. [Id. at 9].

3. Petitioner claims the Court failed to consider the 18 U.S.C. § 3553(a) factors before imposing sentence upon him. [Id. at 9–10, 1113].

4. Petitioner follows with a claim asserting the ineffectiveness of this trial counsel for not contesting the Government's evidence introduced at trial connecting him to a cell phone monitored by law enforcement. [Id. at 10–11].

5. Finally, Petitioner ends his Memorandum with the assertion that certain convictions listed in his Presentence Report were erroneously assigned criminal history points for Guidelines calculation purposes. [Id. at 13–14].

C. First Supplement to 2255 Motion. [Doc. 2].

In his First Motion Supplement, Petitioner asserts two ineffective assistance of counsel claims.

1. Petitioner contends his trial counsel was ineffective for failing to seek the severance of his matter from his nine codefendants' matters in case number 1:09–cr–23. [Doc. 2 at 1].

2. In a related vein, Petitioner asserts his trial counsel was ineffective for failing to object to the Government's motion to join for trial Petitioner's criminal case file number 1:09–cr–23 with the criminal cases filed under numbers 1:09–cr–13 and 1:09–cr–16. [Id. at 1–2].

D. Second Supplement to 2255 Motion. [Doc. 3].

In his Second Motion Supplement, Petitioner reiterates that his Base Offense Level for sentencing under the Guidelines should have been calculated using a crack- to-powder cocaine ratio less than 100:1 or in conformity with the Fair Sentencing Act. [Doc. 3 at 1].

E. First Supplement to 2255 Memorandum. [Doc. 4].

In his First Memorandum Supplement, Petitioner submits the Supreme Court's decisions in Peugh v. United States, ––– U.S. ––––, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) and Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013), as additional authority for his argument that his mandatory minimum sentence is constitutionally infirm. [Doc. 4 at 1–2].

F. Second Supplement to 2255 Memorandum. [Doc. 5].

In his Second Memorandum Supplement, Petitioner reiterates that the Supreme Court's decisions in Peugh and Alleyne require that he be resentenced without the application of any statutory mandatory minimum. [Doc. 5 at 1]. Further, Petitioner submits the Supreme Court's decision in Descamps v. United States, ––– U.S. ––––, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), as...