United States v. Hicks
| Decision Date | 02 November 2022 |
| Docket Number | CRIMINAL ACTION 07-83 |
| Parties | UNITED STATES OF AMERICA v. DENNIS HICKS |
| Court | U.S. District Court — Eastern District of Pennsylvania |
In September 2019, Defendant Dennis Hicks filed a pro se Motion for Modification of Sentence Pursuant to 18 U.S.C. § 3582 in Light of New Case Precedent, in which he alleged his sentence should be reduced to time served based on recent decisions issued by the United States Supreme Court and the Eighth Circuit Court of Appeals. Although the Court denied Hicks' motion because he was not entitled to any relief under § 3582, he was given leave to advise if he wished the motion to be recharacterized as one to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.[1]Hicks has since asked the Court to consider his arguments under § 2255 and the Government has filed a response. Because Hicks' arguments regarding newly recognized rights are meritless, his § 2255 motion must also be denied.
On February 20, 2007, a grand jury indicted Dennis Hicks on the offenses of possession with intent to distribute heroin in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(C) (Count I) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count II), and being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) (Count III). These charges arose out of a routine traffic stop during which the police recovered 64 packets of heroin and a loaded gun from Hicks' vehicle and $665 in cash from his person.
Immediately prior to trial, the Government filed an Information Charging Prior Offenses in accordance with 21 U.S.C. § 851(a). The Information alleged Hicks had previously been convicted and sentenced in state court to three felony-controlled substance violations. Following a three-day trial before the Honorable James T. Giles,[2] Hicks was convicted on all counts. Judge Giles denied Hicks' motion for new trial, and sentenced him on May 12, 2008, to 12 months' imprisonment on Count I, 60 months' imprisonment on Count II, to run consecutive to the term imposed under Count I, and 180 months' imprisonment on Count III, to run consecutive to the terms imposed on Counts I and II, for a total term of 252 months' imprisonment. Hicks was also sentenced to six years of supervised release at the conclusion of his prison terms and ordered to pay a $1,500 fine and a $300 special assessment. Hicks filed a timely appeal to the Third Circuit Court of Appeals, which affirmed the judgment on December 6 2010.
28 U.S.C. § 2255(a) empowers a prisoner in federal custody to "move the court which imposed the sentence to vacate set aside or correct the sentence" and "claim the right to be released upon the ground that the 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." Under subsection (b), the standards and process for adjudicating § 2255 motions are as follows:
Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.
28 U.S.C. § 2255(b). Motions seeking relief under § 2255 are subject to a 1-year period of limitation which:
shall run from the latest of - (1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.
28 U.S.C. § 2255(f)(1) - (4).
As the preceding language suggests, "a district court has discretion whether to order a hearing when a defendant brings a motion to vacate sentence pursuant to 28 U.S.C. § 2255," but there are limitations on the exercise of that discretion. United States v. Booth, 432 F.3d 542, 545 (3d Cir. 2005). "A district court is required to hold an evidentiary hearing unless the motion and files and records of the case show conclusively that the movant is not entitled to relief." United States v. Scripps, 961 F.3d 626, 631-632 (3d Cir. 2020). Determining whether a hearing is necessary involves a two-pronged inquiry. "First, the district court 'must consider as true all appellant's nonfrivolous factual claims.'" Second, it "'must determine whether, on the existing record, those claims that are nonfrivolous conclusively fail to show'" any entitlement to relief. United States v. Arrington, 13 F.4th 331, 334 (3d Cir. 2021) (quoting United States v. Dawson, 857 F.2d 923, 927 (3d Cir. 1988)). If the motion "alleges any facts warranting relief under § 2255 that are not clearly resolved by the record," the district court is "obligated to follow the statutory mandate to hold an evidentiary hearing." United States v. Tolliver, 800 F.3d 138, 141 (3d Cir. 2015) (internal quotations omitted). In considering a motion to vacate a defendant's sentence, "the court must accept the truth of the movant's factual allegations unless they are clearly frivolous on the basis of the existing record." Gov't. of the V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Bald assertions and conclusory allegations do not provide sufficient grounds to require an evidentiary hearing. United States v. Donahue, 792 Fed.Appx. 165, 168 (3d Cir. 2019).
Insofar as this motion is easily adjudicated from the facts of record in this matter, the Court finds there is no need for a hearing. The record here reflects that on May 14 2008, Hicks filed an appeal to the Third Circuit from the trial court's judgment and sentence of May 12, 2008. On December 6, 2010, the Third Circuit issued a six-page non-precedential opinion affirming both judgment and sentence. Hence, it was incumbent upon Hicks to file his § 2255 motion within one year, or by no later than December 6, 2011. Hicks did not file this petition until September 23, 2019, and thus his petition is time-barred unless he can show it falls within one of the other three exceptions established in § 2255(f). Hicks neither argues nor shows that the first, second or fourth exceptions could apply. However, his pro se motion, which the Court is obligated to liberally construe, may be read as claiming this case falls within the third such exception, insofar as Hicks seeks relief under several Supreme Court cases decided in or after 2019. The Court shall therefore address the claims which Hicks now wishes to raise on the ground that they are newly recognized and retroactively applicable. 28 U.S.C. § 2255(f)(3).
Hicks first asserts Shular v. United States, 140 S.Ct. 779 (2020), supports his claim that he should not have been subject to the fifteen-year mandatory minimum sentence under 18 U.S.C. § 924(e)(1) (the ACCA sentencing enhancement) on Count III because under the categorical approach, his prior state offenses did not match those of the generic crimes. He alleges that he did not have the requisite three prior, separate, serious 18 U.S.C. § 922(g) convictions to qualify for the ACCA enhancement.[3]
As of the filing of Hicks' motion, Shular had yet to be decided. Contrary to Hicks' expectation, the Supreme Court rejected the applicability of the usual categorical approach to § 924(e)(2)(A)(ii) () in Shular. Instead, the Court held "[t]he 'serious drug offense' definition requires only that the state offense involve the conduct specified in the federal statute; it does not require that the state offense match certain generic offenses." Shular, 140 S.Ct. at 782. Thus, if a defendant stands convicted of three prior state offense(s) "involving the conduct of 'manufacturing, distributing, or possessing with intent to manufacture or distribute a controlled substance,'" ... "a court applying § 924(e)(2)(A)(ii) need not delineate the elements of generic offenses." Id.
As reflected in the Information Charging Prior Offenses filed by the Government immediately before Hicks's trial on December 4, 2007, Hicks had been convicted in the Court of Common Pleas of Philadelphia County of three separate violations of 35 P.S. § 780-113(a)(30) occurring on April 1, 1999,[4] October 1, 1999,[5]and March 14, 2002.[6] Information, ECF No. 39. Hicks was sentenced on October 6, 2000, for the first two offenses to concurrent terms of 1 year of intermediate punishment[7] to be followed by six months' house arrest, and to no less than 1 but not more than 2 years' incarceration on the third offense. Id. at 1-2.
Specifically 35 P.S. §...
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