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United States v. Mitchell

United States District Court, E.D. Virginia, Alexandria Division

September 27, 2016

UNITED STATES OF AMERICA
v.
JOSEPH ORSINI MITCHELL Criminal No. 1:02-cr-503

          MEMORANDUM OPINION

          T. S. Ellis, III, United States District Judge

         In November 2009, defendant pled guilty to one count of engaging in a conspiracy to distribute 50 grams or more of cocaine base-commonly known as crack cocaine-in violation of 21 U.S.C. § 846, and one count of using a firearm in relation to and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). In January 2010, defendant, as required by statute, was sentenced to a term of 60 months' imprisonment on the § 924(c) count, with that sentence to run consecutive to defendant's 120-month sentence imposed on the conspiracy count. Now, more than six years later, defendant, proceeding pro se, has moved pursuant to 28 U.S.C. § 2255 to vacate and set aside his convictions and sentences on the grounds that (i) the Supreme Court's decision in Johnson v. United States, 135 S.Ct. 2551 (2015), operates to invalidate § 924(c)'s residual clause, [1] and (ii) defendant received ineffective assistance of counsel because his counsel did not raise a challenge pursuant to the Fair Sentencing Act ("FSA"), 18 U.S.C. § 3553, during defendant's appeal.[2] In response, the government contends that defendant's motion is barred as untimely, and that in any event, defendant's conviction and sentence are based not on § 924(c)'s "crime of violence" prong or "residual clause, " but rather on § 924(c)'s "drug trafficking" prong, a provision not addressed by the Supreme Court's decision in Johnson.[3]

         Because the matter has been fully briefed and the facts and law are fully set forth in the existing record, neither oral argument nor an evidentiary hearing would aid the decisional process.[4] Accordingly, the matter is now ripe for disposition. For the reasons stated below, defendant's motion must be denied.

         I.

         According to defendant's sworn Statement of Facts submitted as part of his plea agreement, defendant conspired with his brother and another individual to sell crack cocaine in the Eastern District of Virginia from 2000 to March 2002. Defendant and his coconspirators obtained the drugs by traveling to New York, where they acquired either crack itself or cocaine, which a coconspirator would then convert to crack for purposes of sale. In the course of this conspiracy, defendant personally distributed, or reasonably foresaw that his coconspirators would distribute, between 50 and 150 grams of crack. During this period, defendant obtained and possessed a firearm to protect himself, the drugs, and the drug proceeds.

         On November 12, 2009, defendant pled guilty to one count of engaging in a conspiracy to distribute 50 grams or more of crack cocaine, in violation of 21 U.S.C. § 846 (Count 1), and one count of using a firearm in relation to and in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A) (Count 3). On January 29, 2010, defendant received a sentence of 120 months' imprisonment on Count 1, and a consecutive sentence of 60 months' imprisonment on Count 3, for a total sentence of 180 months. With respect to sentencing, a memorandum opinion issued making clear that § 924(c) requires its mandatory minimum penalty to be served consecutive to § 846's mandatory minimum sentence. See United States v. Mitchell, 691 F.Supp.2d 665 (E. D. Va. 2010).[5]

         Defendant timely appealed, and on August 16, 2010, the Fourth Circuit Court of Appeals dismissed defendant's appeal. Consistent with the Fourth Circuit's mandate, defendant's judgment of conviction became effective on September 22, 2010. See United States v. Joseph Orsini Mitchell, No. 1:02-CR-503 (E.D. Va. Aug. 16, 2010) (Docs. 73, 76).

         On June 21, 2012, almost two years after defendant's judgment became final, the Supreme Court issued its opinion in Dorsey v. United States, 132 S.Ct. 2321 (2012), addressing whether Congress intended the FSA, which increased the drug amount necessary to trigger the mandatory minimum sentences for crack cocaine offenses, to apply retroactively to defendants who committed their crack cocaine crimes before the FSA took effect on August 3, 2010. Specifically, the Supreme Court in Dorsey held that the FSA's new drug amounts to trigger the mandatory minimums applied to defendants who committed their crack cocaine crimes before, but were sentenced after, August 3, 2010.132 S.Ct. at 2331.

         On June 26, 2015, almost five years after defendant's judgment became final, the Supreme Court issued its decision in Johnson v. United States, 135 S.Ct. 2551 (2015), addressing the definition of a "violent felony" in the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e). Specifically, the Supreme Court in Johnson held that the ACCA residual clause in § 924(e)(2)(B)(ii) defining a "violent felony" as including an offense that "otherwise involves conduct that presents a serious potential risk of physical injury to another" is unconstitutionally vague, and therefore that "imposing an increased sentence under the residual clause of the [ACCA] violates the Constitution's guarantee of due process." 135 S.Ct. at 2563. Thereafter, on April 18, 2016, the Supreme Court held that Johnson announced a new "substantive rule that has retroactive effect in cases on collateral review." Welch v. United States, 136S.Ct. 1257, 1268(2016).

         Shortly after the Supreme Court's decision in Welch, defendant moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed on him on the grounds that (i) the Supreme Court's decision in Johnson operates to invalidate his § 924(c) conviction, and (ii) defendant received ineffective assistance of counsel because his attorney did not raise an FSA challenge to his sentence on the § 846 conviction during defendant's appeal.[6] Specifically, defendant asserts that his counsel deprived defendant of the opportunity to be resentenced by erroneously advising him that the FSA was inapplicable to defendant's case.

         Approximately one month later, on July 22, 2016, the government moved to dismiss defendant's § 2255 motion, contending that defendant's motion is barred by the one-year statute of limitations set forth in 28 U.S.C. § 2255(f). The government further argued that defendant's § 924(c) conviction rests on the statute's "drug trafficking" provision, and thus does not implicate either the Johnson decision or § 924(c)'s residual clause.

         II.

         To begin with, the government challenges defendant's Johnson claim as untimely. Specifically, the government asserts that because defendant filed his § 2255 motion approximately five years after his § 924(c) conviction became final, defendant's § 2255 motion is barred by the one-year limitations period set forth in 28 U.S.C. § 2255(f)(1). Defendant seeks to avoid this result, contending that his motion is timely pursuant to 28 U.S.C. § 2255(f)(3), which created a one-year limitations period running from June 26, 2015, the date Johnson was decided.

         Section 2255(f)(3) provides that a one-year limitations period runs from "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 ...


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