United States District Court, W.D. Virginia, Abingdon Division
Jennifer R. Bockhorst, Assistant United States Attorney, Abingdon, Virginia for United States; Brian J. Beck, Assistant Federal Public Defender, Abingdon, Virginia, for Defendant.
JAMES P. JONES, UNITED STATES DISTRICT JUDGE.
The defendant, John Matthew Ellis, proceeding pro se, filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The United States filed a Motion to Dismiss. Ellis responded and also filed a letter motion seeking to amend the § 2255 motion, challenging his sentence based upon the Supreme Court’s recent decision in Johnson v. United States, 135 S.Ct. 2551 (2015). The court ordered additional briefing on the Johnson issue and appointed counsel for Ellis.
The § 2255 motion is now ripe for disposition. After reviewing the record, I will grant the United States’ Motion to Dismiss.
Ellis and seven codefendants were charged in a multi-count Indictment. Ellis was charged with conspiring to manufacture 50 grams or more of methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(B) (Count One); possessing with intent to distribute methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) (Count Two); manufacturing methamphetamine and creating substantial risk of harm to human life, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 858 (Count Three); knowingly using and maintaining a place for the purpose of manufacturing methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. § 856(a)(1) (Count Four); knowingly and intentionally possessing pseudoephedrine with the intent to manufacture methamphetamine, in violation of 18 U.S.C. § 2 and 21 U.S.C. §§ 841(c)(1) and 841(c)(2) (Count Five); and knowingly possessing firearms after having been convicted of a crime punishable by more than one year in prison and while being an unlawful user of a controlled substance, in violation of 18 U.S.C. §§ 922(g)(1), 922(g)(3) and 924(e) (Count Six).
On August 19, 2013, Ellis’ trial counsel moved to suppress all physical evidence seized by law enforcement during a June 18, 2012, search of Ellis’ home and statements Ellis made to law enforcement following the search. Counsel argued that the search warrant was overly broad and lacked specific facts to establish probable cause. (Mot. to Suppress 2, ECF No. 130.) He also argued that law enforcement interrogated Ellis without first informing him of his rights under Miranda v. Arizona, 384 U.S. 436, 479 (1966). (Second Mot. to Suppress 1, ECF No. 131.) A hearing was scheduled on the motions.
On September 5, 2013, the day before the scheduled motions hearing, Ellis pleaded guilty pursuant to a written Plea Agreement to a lesser-included offense of Count One and to Count Six. (Plea Agreement 1, ECF No. 137.) The Plea Agreement provided that Ellis qualified pursuant to the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), and United States Sentencing Guideline § 4B1.4. (Id. at 1-2, 3.) In accordance with the ACCA, the Plea Agreement provided Ellis’ statutory range of imprisonment for Count Six as fifteen years to life. (Id. at 1-2.) It also provided that Ellis’ base offense level was 33 under the Sentencing Guidelines. (Id. at 3.)
At the guilty plea hearing, Ellis affirmed that he had an adequate opportunity to read and discuss the Plea Agreement with counsel before signing it. (Plea Hr’g Tr. 5, ECF No. 267.) Ellis further affirmed that he was “fully satisfied with [his] lawyer’s representation.” (Id.) The prosecutor summarized the terms of the Plea Agreement. (Id. at 5-6.) Both the prosecutor and the court advised Ellis that he faced a maximum statutory penalty of not more than twenty years imprisonment on Count One and a mandatory minimum of fifteen years and maximum of life imprisonment on Count Six because of his status as an armed career criminal. (Id. at 5-6, 7.) Ellis affirmed his understanding that by pleading guilty he gave up his right to proceed to trial. (Id. at 9-10.) In addition, he stated that he understood that under the Plea Agreement he gave up his right to appeal or collaterally attack his sentence. (Id. at 6-7.) Ellis affirmed that no one had made any promises to him other than those contained in the Plea Agreement to cause him to plead guilty and that no one had threatened him or attempted to force him to plead guilty. (Id. at 7.) I found that Ellis was fully competent and capable of entering an informed plea and that his guilty plea was knowingly and voluntarily made. (Id. at 14.)
The probation office prepared a Presentence Investigation Report (“PSR”) in anticipation of sentencing. The PSR recommended a total offense level of 30 and a criminal history category of IV, resulting in a guideline imprisonment range of 135 to 168 months. (PSR ¶ 104, ECF No. 209.) However, the minimum term of imprisonment on Count Six with the ACCA enhancement was 180 months. (Id.) Because the statutorily authorized minimum sentence was greater than the maximum applicable guideline range, the statutory minimum of 180 months imprisonment was recommended. (Id.) Ellis had five prior Virginia convictions relevant to his status as an armed career criminal under the ACCA: (1) a March 24, 1989, conviction for cocaine distribution; (2) a March 24, 1989, conviction for cocaine distribution; (3) a January 14, 1994, conviction for robbery; (4) a January 14, 1994, conviction for malicious wounding; and (5) an October 1, 1993, conviction for robbery. (Id. at ¶¶ 47, 48, 54, 55.) Ellis does not dispute that the two drug convictions are ACCA predicate offenses.
At a sentencing hearing on January 15, 2014, I sentenced Ellis to 180 months’ imprisonment, the mandatory minimum sentence under the ACCA. (Sent. Tr. 10, ECF 268.) He did not appeal.
In his present § 2255 motion, Ellis alleges that counsel provided ineffective assistance by: (1) advising him to withdraw his motions to suppress and plead guilty; (2) advising him against moving to withdraw his guilty plea; (3) failing adequately to investigate the circumstances surrounding the search warrant used to search his home; and (4) refusing to prepare for trial. (§ 2255 Mot. 5-15, ECF No. 292.) Ellis also claims that he no longer qualifies as an armed career criminal under the ACCA because his prior robbery and malicious wounding convictions cannot serve as predicate offenses following Johnson v. United States, 135 S.Ct. at 2563.
To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his 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”; or (3) that “the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). Ellis bears the burden of proving ...