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United States v. Peterson

United States District Court, District of Columbia

January 11, 2013

UNITED STATES of America
v.
Thomas E. PETERSON, Jr., Defendant.

Page 103

Precious Murchison, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Plaintiff.

Tony W. Miles, Federal Public Defender for D.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, District Judge.

Defendant Thomas E. Peterson, Jr. has moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Peterson seeks relief based on Chambers v. United States, 555 U.S. 122, 129 S.Ct. 687, 172 L.Ed.2d 484 (2009), arguing that he was erroneously sentenced as a career offender when, under Chambers, one of his predicate offenses— failure to report to a halfway house— did not actually qualify as a " crime of violence." The Court concludes that Peterson's motion is both untimely and procedurally defaulted, and hence it will be denied.

BACKGROUND

On October 1, 2007, Peterson and the government entered into a plea agreement under Federal Rule of Criminal Procedure 11(c)(1)(C).[1] See Plea Agreement [ECF 30] 2. Peterson agreed to plead guilty to one count of unlawful possession with intent

Page 104

to distribute five grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and agreed that he was accountable for more than 50 but less than 150 grams of cocaine base. Plea Agreement 1. The offense carried a mandatory minimum of five years' imprisonment and a statutory maximum of forty years' imprisonment. See 21 U.S.C. § 841(b)(1)(B). The parties agreed that ten years' imprisonment was the appropriate sentence. Plea Agreement 2.

Peterson entered a plea of guilty in this Court, at which time the Court deferred its decision on whether to accept or reject the Rule 11(c)(1)(C) plea agreement, including the ten-year sentence, until after it had received the Presentence Investigation Report (" PSR" ) from the U.S. Probation Office. 10/1/07 Tr. of Plea Hr'g [ECF 44] 22-23. The PSR determined that Peterson was a career offender under U.S. Sentencing Guidelines Manual (" U.S.S.G" ) § 4B1.1(a) based on " two prior felony convictions of either a crime of violence or a controlled substance offense," the first for " escape" and the second for distribution of cocaine. See U.S.S.G. § 4B1.1(a); Gov't's Mem. in Opp'n to Def.'s Mot. [ECF 52] (" Gov't's Opp'n" ), Ex. E (" PSR Excerpts" ) 5 (referencing Superior Court docket numbers 1999F0757 and 2005F6412); see also id. at 8-9. Peterson's 1999 escape conviction was for failure to return to a halfway house. PSR Excerpts 9. The PSR calculated a total offense level of 31 and, because of Peterson's career offender status, a criminal history category of VI. Id. at 5, 11. As a result, Peterson's guidelines range was 188 to 235 months. Id. at 12.

On January 11, 2008, after reviewing the PSR, the Court accepted the Rule 11(c)(1)(C) plea agreement and the agreed-upon sentence and sentenced Peterson to a term of 120 months' imprisonment, to be followed by a 60-month term of supervised release. See 1/11/08 Tr. of Sent'g 18; Judgment [ECF 38] 2-3. Peterson did not appeal his conviction or sentence.

On January 13, 2009, the Supreme Court held in Chambers v. United States that failure to report for incarceration or periodic imprisonment did not qualify as a " violent felony" under the Armed Career Criminal Act (" ACCA" ). See 555 U.S. at 126, 130, 129 S.Ct. 687.[2] Over two years later, on February 10, 2011, Peterson signed the instant § 2255 motion. See Def.'s Mem. in Supp. of Mot. [ECF 43-1] (" Def.'s Mot." ) 15. As pro se filings must be construed liberally, see Richardson v. United States, 193 F.3d 545, 548 (D.C.Cir.1999), absent evidence to the contrary, the Court will assume that Peterson delivered his motion to prison authorities on the date he signed it and hence will consider the motion filed on February 10, 2011, see Houston v. Lack, 487 U.S. 266, 270-71, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988) (discussing prisoner mailbox rule); Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.2001).

DISCUSSION

Peterson contends that this Court should vacate his sentence and remand the case for resentencing because under Chambers his escape conviction no longer qualifies as a conviction for a " crime of violence" on which career offender status may be based. See U.S.S.G. §§ 4B1.1(a), 4B1.2(a). The government " agrees with [Peterson] that his escape conviction, which is based on a failure to return on time to a halfway house, would no longer qualify as a ‘ crime of violence’ pursuant to

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§ 413 1.2, and therefore [Peterson] would not qualify as a ‘ career offender.’ " Gov't's Opp'n 5. But, the government argues, Peterson is not entitled to relief under § 2255 because his claim is (1) untimely, (2) procedurally defaulted, and (3) not ...


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