U.S.A v. Pettiford

• Decision Date: 21 July 2010
• Docket Number: No. 09-4119.,09-4119.
• Citation: 612 F.3d 270
• Parties: UNITED STATES of America, Plaintiff-Appellant,v.Antoine Jerome PETTIFORD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

612 F.3d 270

UNITED STATES of America, Plaintiff-Appellant,v.Antoine Jerome PETTIFORD, Defendant-Appellee.

No. 09-4119.

United States Court of Appeals Fourth Circuit.

Argued: March 24, 2010.

Decided: July 21, 2010.

COPYRIGHT MATERIAL OMITTED

ARGUED: Sujit Raman, Office of the United States Attorney, Baltimore, Maryland, for Appellant. Paresh S. Patel, Office of the Federal Public Defender, Greenbelt, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Michael J. Leotta, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellant. James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellee.

Before TRAXLER, Chief Judge, and WILKINSON and DUNCAN, Circuit Judges.

Reversed and remanded with instructions by published opinion. Judge DUNCAN wrote the opinion, in which Chief Judge TRAXLER and Judge WILKINSON joined.

OPINION

DUNCAN, Circuit Judge:

Appellee Antoine Jerome Pettiford pleaded guilty to one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g), and received an enhanced sentence of 188 months' imprisonment, in part because he had five prior convictions which qualified him as a career criminal under the provisions of the Armed Career Criminal Act (the “ACCA”), 18 U.S.C. § 924(e). Two of the five state court convictions were subsequently vacated, and Pettiford brought a petition under 28 U.S.C. § 2255 for post-conviction relief from the enhanced federal sentence. The district court granted Pettiford's petition, holding that as a result of the vacatur of the two state convictions, Pettiford was entitled to relief. The district court then resentenced Pettiford to a term of 100 months' imprisonment. For the reasons that follow, we reverse the district court's order and remand with instructions to reinstate Pettiford's original sentence.

I.

On November 21, 2002, a grand jury charged Pettiford with one count of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). The grand jury determined that on July 4, 2002, Pettiford, “having been convicted of a crime punishable by imprisonment for a term exceeding one year, did knowingly and unlawfully possess ... a Smith & Wesson .40 caliber semi-automatic pistol.” J.A. 11.

On April 1, 2003, the United States Probation Office issued a criminal history report (the “Special Report”), in which it considered whether Pettiford was subject to an enhanced criminal sentence under the ACCA. The ACCA provides that if a person who violates § 922(g) has “three previous convictions ... for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years.” 18 U.S.C. § 924(e)(1). Because Pettiford had eight prior violent and serious drug felonies, the United States Probation Office concluded that he qualified for an enhanced sentence under the ACCA.

In a May 28, 2003, letter, Pettiford contested the validity of three of the eight convictions as ACCA predicates, and the Special Report was revised to eliminate them on July 9, 2003. Thereafter, on October 6, 2003, the government filed a Notice/Information of Enhanced Penalties, in which it explained that Pettiford was subject to the enhanced penalty provisions of § 924(e)(1), based in part on the following five state convictions: (1) a 1993 conviction for possession with intent to manufacture narcotics; (2) a 1994 conviction for breaking and entering a dwelling, battery, malicious destruction, and assault; (3) a 2001 conviction for second-degree assault; (4) a 2002 conviction for possession with intent to distribute cocaine; and (5) a 2002 conviction for conspiracy to distribute and possession with intent to distribute cocaine.

Pursuant to a written plea agreement, signed on January 16, 2004, Pettiford pleaded guilty to the charged offense. In that agreement, Pettiford stipulated that he was “an Armed Career Criminal subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).” J.A. 18. He further stipulated that

based on the Notice/Information of Enhanced Penalties filed by the United States on October 6, 2003, and as found by the U.S. Probation Office in its pretrial criminal history report, Mr. Pettiford has three or more prior convictions which qualify him as a Armed Career Criminal subject to an enhanced sentence under the provisions of 18 U.S.C. § 924(e).

J.A. 19. The district court confirmed that Pettiford agreed that he was subject to an ACCA enhanced sentence in its plea colloquy, and again at sentencing.¹ Thereafter, the district court sentenced Pettiford to 188 months' imprisonment, and Pettiford did not appeal this sentence.

Before sentencing, Pettiford filed in state court a coram nobis petition for post-conviction relief, seeking to vacate his two 2002 convictions. On September 7, 2004, after Pettiford had been sentenced in federal court, the Circuit Court for Baltimore County vacated the two 2002 convictions, concluding that the sentences had been illegal because the court imposed an invalid period of incarceration as a condition of probation. Almost a year later, on August 15, 2005, Pettiford filed a petition under 28 U.S.C. § 2255 for post-conviction relief from the enhanced federal sentence in the District Court of Maryland.

In his pro se § 2255 petition, Pettiford contended that he was entitled to relief because as a result of the vacatur of the two 2002 drug convictions, he no longer qualified as an armed career criminal. Specifically, he argued that his 1993 drug conviction could not have been an ACCA predicate conviction because, he alleged, “the judgment and transcript do not show whether [he] was convicted of conspiracy to possess with intent to distribute a controlled substance or conspiracy to merely possess a controlled substance (which [was] Mr. Pettiford's recollection).” J.A. 193. Because his 1993 drug conspiracy conviction was merely a possession offense, Pettiford maintained that he had only two remaining convictions that qualified for ACCA purposes, not three.

On January 11, 2007, the district court issued an order appointing a Public Defender to represent Pettiford, and requiring the Public Defender to verify whether, in addition to the 1993 conviction, Pettiford wished to challenge any of the other non-vacated qualifying convictions. In response to this order, on June 15, 2007, the Public Defender filed a memorandum of law explaining that Pettiford challenged the use of all his predicate convictions. The government filed a response to this memorandum on July 6, 2007, arguing, inter alia, that Pettiford was procedurally barred from challenging the use of the three predicate convictions because these challenges “were not raised at trial or on direct appeal, and the defendant neither offer[ed] cause excusing this failure nor c[ould] he show prejudice from not having raised the arguments.” J.A. 232. As a result, in a reply, the Public Defender clarified that for § 2255 purposes, only the two 2002 vacated convictions should be considered, and that Pettiford's challenges to the three remaining predicates were “not [a] part of his habeas petition [but] instead[ ] they [were] relevant considerations at a resentencing following the grant of his habeas petition.” ² J.A. 250. In other words, Pettiford asked the district court to bifurcate the proceedings.

On November 24, 2008, the district court granted Pettiford's § 2255 petition and ordered that he be resentenced. The district court granted Pettiford habeas relief because “two of his qualifying convictions [had been] vacated after his initial sentence.” J.A. 263. The district court recognized that even with the two 2002 drug convictions vacated, Pettiford's record “retain[ed] three convictions that might enhance his sentence under § 924(e),” J.A. 266, but nevertheless granted Pettiford a resentencing based on an “examination of [Pettiford's] remaining ACCA qualifying convictions ... akin to what would occur at a re-sentencing proceeding,” J.A. 267.

In doing so, the district court decided that Pettiford's conviction for Maryland assault in 2001 was not a violent felony under the ACCA. Relying on Shepard v. United States, 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005), and United States v. Simms, 441 F.3d 313 (4th Cir.2006), the district court explained that when analyzing whether a conviction is a violent felony under the ACCA, courts cannot consider documents “that are not incorporated into the charging document.” J.A. 269. Because the only basis for concluding that Pettiford's 2001 assault might be a violent felony is found in a Statement of Probable Cause, which was not incorporated into the charging document, the district court concluded that the 2001 assault conviction was not a violent felony, and thus could not be counted. Disregarding both the 2001 assault conviction and the two sentences vacated by the Maryland state courts, the district court found “that Pettiford has two remaining ACCA qualifying convictions ... [and] no longer qualifies” for an enhanced sentence under the ACCA. J.A. 270.

On December 8, 2008, the government filed a motion for reconsideration, which the district court denied on January 7, 2009. Pettiford was subsequently resentenced on January 8, 2009 to 100 months in prison. This appeal followed.

II.

On appeal, the government contends that the district court erred in granting Pettiford's § 2255 petition, because even after the vacatur of Pettiford's two drug convictions, Pettiford still had three qualifying predicate convictions. Pettiford responds that a defendant need only show that some of his underlying predicate convictions were vacated to be entitled to § 2255 relief. However, in the event we find otherwise, he argues that his challenges to the other predicate convictions should be considered as part of his habeas claim, and that if he failed to challenge...