United States v. Campbell
| Decision Date | 20 December 2016 |
| Docket Number | No. 5:14–CR–83–DCR–REW, No. 5:16–CV–161–DCR–REW,5:14–CR–83–DCR–REW |
| Citation | 224 F.Supp.3d 549 |
| Court | U.S. District Court — Eastern District of Kentucky |
| Parties | UNITED STATES of America, Plaintiff/Respondent, v. Adrian Wesley CAMPBELL, Defendant/Movant. |
Cynthia T. Rieker, U.S. Attorney's Office, EDKY, Lexington, KY, for Plaintiff/Respondent.
RECOMMENDED DISPOSITION
Movant, Adrian Campbell, is a federal inmate. DE # 131 (Motion), at 1. On May 18, 2016,1 Campbell filed a pro se2 motion under 28 U.S.C. § 2255, as well as a memorandum of law. See id. ; DE # 131–1. The United States responded in opposition. DE # 139 (Response). Campbell replied. DE # 145 (Reply). The District Court found that Campbell waived attorney-client privilege as to the § 2255 issues, DE # 136 (Order), and later denied two efforts to add or supplement claims unrelated to the current merits. DE ## 148, 150 (Orders).3 The matter is ripe for consideration. Per normal practice, the District assigned the matter to the undersigned for a recommended disposition. For the following reasons, the Court RECOMMENDS that the District Judge GRANT DE # 131 to the extent Hon. Edward M. Thompson, Campbell's trial-level counsel, ineffectively assisted Movant regarding sentencing, otherwise DENY DE # 131, appoint Campbell counsel, schedule resentencing, and issue no Certificate of Appealability on the unsuccessful claims.
On August 7, 2014, a grand jury charged Campbell, among others, with one count of conspiring to distribute 50 kilograms or more of marijuana and three counts of using a communication facility in committing a felony. DE # 1 (Indictment). Campbell pleaded guilty to Count 1, pursuant to a plea agreement, on February 4, 2015. DE ## 64 (Rearraignment Minute Entry); 87 (Plea Agreement); 88 (Sealed Supplement). Judge Reeves sentenced Campbell on May 20, 2015. DE # 86 (Sentencing Minute Entry). Movant received a total prison sentence of 190 months, followed by 6 years of supervised release. DE # 89 (Judgment). Campbell appealed, and the Sixth Circuit dismissed the case on February 4, 2016, based on an appellate-review waiver in the Plea Agreement. DE # 121 (Sixth Circuit Order). On May 18, 2016, Campbell filed the § 2255 motion, purportedly in part (though not in reality) premised on Johnson v. United States , ––– U.S. ––––, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). DE # 131. The United States responded. DE # 139. Campbell replied. DE # 145. The motion stands ripe for review.
Under 28 U.S.C. § 2255, a federal prisoner may obtain post-conviction relief if his sentence violates the Constitution or federal law, the federal court lacked jurisdiction to impose such sentence, or the sentence exceeds the maximum authorized by law. 28 U.S.C. § 2255(a) ; Mallett v. United States , 334 F.3d 491, 496–97 (6th Cir. 2003) ("In order to prevail upon a § 2255 motion, the movant must allege as a basis for relief: ‘(1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.’ " (quoting Weinberger v. United States , 268 F.3d 346, 351 (6th Cir. 2001) ). A defendant alleging a constitutional basis must establish "an error of constitutional magnitude" and show that the error had a "substantial and injurious effect or influence on the proceedings" in order to obtain § 2255 relief. Watson v. United States , 165 F.3d 486, 488 (6th Cir. 1999) (citing Brecht v. Abrahamson , 507 U.S. 619, 113 S.Ct. 1710, 1721–22, 123 L.Ed.2d 353 (1993) ). When alleging a non-constitutional error, a defendant must prove that the error constituted 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) (quoting Hill v. United States , 368 U.S. 424, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) ); see also Watson , 165 F.3d at 488. In making a § 2255 motion, a movant generally bears the burden of proving factual assertions by a preponderance of the evidence. McQueen v. United States , 58 Fed.Appx. 73, 76 (6th Cir. 2003) (per curiam ) ().
In the instant motion, Campbell presents three interconnected grounds for relief, centered on Johnson and the career offender predicate status of his 2007 Kentucky assault third conviction: that (1) his appellate-review waiver is unenforceable insofar as Johnson "is beyond the scope of the appellate waiver"; (2) his appellate counsel was ineffective for failing "to argue Johnson ... in [the] reply brief as requested"; and (3) his sentencing counsel was ineffective for failing to make a meaningful argument against applying the career offender Guideline enhancement. DE # 131–1, at 2. The core of Campbell's motion, however, is attempted relitigation of whether his Kentucky assault third conviction properly qualified as a career offender Guideline predicate.
The Court perceives the motion to not actually raise a Johnson issue at all. The motion is timely under § 2255(f)(1) and simply seeks to challenge Judge Reeves's prior finding (not under the invalidated residual clause, contained in U.S.S.G. § 4B1.2(a)(2) ) that Campbell's Kentucky assault third conviction properly counted as a career offender predicate. Judge Reeves, at sentencing, did not in any way utilize the Guidelines' residual clause in the analysis, instead staking the predicate finding on § 4B1.2(a)(1). See DE # 114 (Sentencing Transcript), at 6–11.4 Accordingly, Johnson has no impact on the case. However, because Campbell raises Johnson , the Court will nevertheless set out some necessary general background.
Johnson held unconstitutional the residual clause of the Armed Career Criminal Act (ACCA) (). 135 S.Ct. at 2563. " Johnson is retroactive in cases on collateral review [.]" Welch v. United States , ––– U.S. ––––, 136 S.Ct. 1257, 1268, 194 L.Ed.2d 387 (2016). Here, the Court obviously did not sentence Campbell under the ACCA, which applies only to § 922(g) violators (much less utilizing its residual clause). Instead, Campbell violated 21 U.S.C. §§ 846. See DE # 89 (Judgment).
However, Campbell was indeed deemed a career offender under the United States Sentencing Guidelines, and " Johnson residual clause." United States v. Pawlak , 822 F.3d 902, 907 (6th Cir. 2016). The Court sentenced Campbell as a career offender under U.S.S.G. § 4B1.1. See DE # 93 (PIR), at ¶ 24 (); id. at ¶ 38 (); DE # 114 (Sentencing Transcript), at 10 (); DE # 86 (Sentencing Minutes reflecting adoption of PIR Guideline calculus and overruling defense objection). The definitions associated with the career offender enhancement are at U.S.S.G. § 4B1.2. Johnson , which invalidated only the ACCA residual clause (and, by logical extension, § 4B1.2(a)(2)'s residual clause), clearly did not address or impact the "crime of violence" elements or enumerated offenses clauses, nor did it impact the definition of a controlled substance offense. See, e.g. , 135 S.Ct. at 2563 ; United States v. Thompson , 619 Fed.Appx. 514, 515 (6th Cir. 2015) ; Trice v. United States , No. 3:13-CR-96-CRS, 2016 WL 867545, at *7 (W.D. Ky. Jan. 7, 2016) ; United States v. Smith , Nos. 10–CR–20058, 12–CV–11913, 2015 WL 5729114, at *13 (E.D. Mich. Sept. 30, 2015).5
To qualify as a career offender, the defendant must have been at least 18 years old at the time of offense commission (Campbell was), the offense of conviction must have been (as relevant here) a felony controlled substance offense (this § 846 conspiracy to distribute 50 kilograms or more of marijuana was, see U.S.S.G. § 4B1.2(b), application note 1), and the defendant must have had "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1(a). The last criterion is the one at issue here.
No party contests that Campbell has at least one properly qualifying predicate offense. See PIR at ¶ 32 (federal PWID cocaine conviction). The relevant substantive question is whether the ¶ 31 (DE # 114) Kentucky assault third conviction also properly counts as a career offender predicate. The question, in the context of Campbell's particular presentation, implicates numerous issues, which the Court explores, in turn, below.
As an initial matter, to the extent Campbell raises or suggests it as a separate issue (in nominal Ground 1), his collateral attack waiver, see DE # 87 (Plea Agreement), at ¶ 8, applies to bar an independent Johnson claim and an independent challenge to career offender status via a § 2255 motion. In re Garner , 664 Fed.Appx. 441 (6th Cir. 2016).6 Even "where developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature." Id. at 442. Campbell's "willingness to waive his right to appeal and to attack his sentence collaterally binds him no less now than it did when he signed the agreement." Id. at 443 (internal alteration and quotation marks omitted). In re Garner addressed the effect of Johnson on waiver, the very claim Campbell offers.
The Sixth Circuit has already concluded that Campbell's ¶ 8 waiver "is valid and enforceable." DE # 121, at 3. Judge Reeves, the rearraignment and...
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