United States District Court, District of Columbia
SEGAL HUVELLE United States District Judge.
the Court is defendant's pro se Motion to
Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C.
§ 2255. (See Def.'s § 2255 Mot.,
ECF No. 37; see also Def.'s Letter Requesting
Recons. of Sentence, ECF No. 36.) For the reasons stated
herein, the motion is denied.
February 1, 2011, defendant was charged in a one-count
indictment with unlawful possession of a firearm and
ammunition by a person convicted of a crime punishable by
imprisonment for a term exceeding one year in violation of 18
U.S.C. § 922(g)(1). (Indictment, ECF No. 1.) On May 25,
2011, the government filed a superseding information, adding
a charge of unlawful possession of a firearm by a felon in
violation of 22 D.C. Code § 4503(a)(1). (Information,
ECF No. 19.) Pursuant to a plea agreement, defendant entered
a plea of guilty to the D.C. Code offense in exchange for
dismissal of the federal count at the time of sentencing.
(Plea Agreement ¶¶ 1, 6, ECF No. 22.) As part of
the agreement, defendant adopted and signed a “Proffer
of Proof, ” which stated that defendant had
previously been convicted of three (3) felonies in the
Superior Court of the District of Columbia and each offense
was punishable by at least one year in prison: Armed Robbery
(Case Number 2002-FEL-7662, sentenced 3-17-05); Attempted
Distribution of Cocaine (Case Number 2004-FEL-6296, sentenced
3-9-05); and Attempted Distribution of Cocaine (Case Number
2008-CF2-19767, sentenced 1-15-09).
(Proffer of Proof at 3, ECF No. 23.) The plea agreement
further provided, pursuant to Fed. R. Crim. P. 11(c)(1)(C),
that the parties agreed to an 8-year term of imprisonment.
(Plea Agreement ¶ 2.) The parties agree that the driving
force behind the plea agreement was the 15-year mandatory
minimum sentence that the defendant would have faced under
the Armed Career Criminal Act (“ACCA”), 18 U.S.C.
§ 924(e), if convicted of the federal
felon-in-possession charge, due to his three qualifying prior
convictions: two “serious drug offenses” and one
“violent felony.” By comparison, the maximum
penalty for the D.C. Code offense was only 10 years, and the
advisory sentencing range under the D.C. sentencing
guidelines was 30-54 months' imprisonment. The Court
accepted the agreement and sentenced defendant to 8
years' imprisonment. (Judgment, ECF No. 33.)
defendant's conviction became final, the Supreme Court
struck down part of the ACCA's definition of
“violent felony” as unconstitutional. Johnson
v. United States, 135 S.Ct. 2551 (2015). Specifically,
the Court held that the so-called “residual clause,
” which defines a violent felony to include any offense
that “otherwise involves conduct that presents a
serious potential risk of physical injury to another, ”
was void for vagueness. In Welch v. United States,
136 S.Ct. 1257 (2016), the Supreme Court held that its ruling
in Johnson applied retroactively to cases on
on Johnson and Welch, defendant filed a
§ 2255 motion seeking to vacate his conviction and
sentence and set aside his guilty plea. He claims that in
light of Johnson and Welch, his prior
conviction for D.C. armed robbery is not in fact a qualifying
conviction under the ACCA and that he would not entered into
a plea agreement whereby he agreed to serve a 96-month
sentence for his D.C. code offense absent the possibility of
a 15-year mandatory minimum sentence under the ACCA.
(See Def.'s Letter at 1 (ACCA “should not
have been used as a bargaining tool to ensure
[defendant's] conviction without the use of
trial.”).) The government filed an opposition
(see Opp'n, ECF No. 44), and defendant filed a
reply. (See Reply, ECF No.45.) The Court has
determined that no hearing is necessary because “the
motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255(b)).
claim is an atypical Johnson claim in that he was
not actually convicted of a federal offense or sentenced
under the ACCA; thus, he is not challenging a sentence
imposed under the now void residual clause of the ACCA.
Rather, defendant's claim is that his plea was
involuntary because (1) he agreed to the terms of his plea
agreement based on the mistaken belief that he faced a
mandatory minimum ACCA sentence; or (2) his counsel was
ineffective in advising him to accept the plea agreement.
of guilty is constitutionally valid if it
“‘represents a voluntary and intelligent choice
among the alternative courses of action open to the
defendant.'” United States v. McCoy, 215
F.3d 102, 107 (D.C. Cir. 2000) (quoting Hill v.
Lockhart, 474 U.S. 52, 56 (1985)). At the time defendant
entered into his plea agreement, the ACCA's residual
clause was still in effect, and there was absolutely no
reason to anticipate the Supreme Court's decision in
Johnson. See, e.g., United States v.
Redrick, 841 F.3d 478, 480 (D.C. Cir. 2016) (“no
one . . . could reasonably have anticipated
Johnson”); see also United States v.
Wilson, No. 96-cr-0157, 2017 WL 1383644 (D.D.C. Apr. 18,
2017) (“Until the Supreme Court announced its new rule
in Johnson, [defendant] did not have a reasonable
basis upon which to challenge the constitutionality of
ACCA's residual clause.” (internal quotations
omitted)). It is well-established that a “voluntary
plea of guilty intelligently made in the light of the then
applicable law does not become vulnerable because later
judicial decisions indicate that the plea rested on a faulty
premise.” Brady v. United States, 397 U.S.
742, 757 (1970). Accordingly, defendant's claim that his
plea was involuntary because he did not know at the time he
pled that the ACCA's residual clause would be declared
unconstitutional is without merit.
similar reasons, defendant cannot succeed on a claim that his
plea was involuntary because his counsel was ineffective in
advising him to accept the plea agreement. If a defendant
“is represented by counsel during the plea process and
enters his plea upon the advice of counsel, the voluntariness
of the plea depends on whether counsel's advice was
within the range of competence demanded of attorneys in
criminal cases, ” using the Strickland v.
Washington, 466 U.S. 668 (1984), test for deficient
performance. United States v. Tolson, 372 F.Supp.2d
1, 11 (D.D.C. 2005); see also Hill v. Lockhart, 474
U.S. at 58 (holding that a claim that the ineffective
assistance of counsel rendered a plea not voluntary and
intelligent must be evaluated under the general test for
ineffective assistance set forth in Strickland). To
establish deficient performance under Strickland, a
defendant must show that “counsel's representation
fell below an objective standard of reasonableness.”
Strickland, 466 U.S. at 688. As previously noted,
when counsel advised defendant to enter into his plea
agreement, the ACCA's residual clause was still in
effect, and there was absolutely no reason to anticipate the
Supreme Court's decision in Johnson. Counsel is
not required to divine an unpredictable future. Accordingly,
defendant's counsel's performance in recommending
that he enter into the plea agreement was clearly not
deficient, precluding any claim for ineffective assistance.
district court enters a final order resolving a motion under
28 U.S.C. § 2255 that is adverse to the defendant, it
must either issue or deny a certificate of appealability.
See Rules Governing Section 2255 Proceedings for the
United States District Courts, Rule 11(a). By statute,
“[a] certificate of appealability may issue ... only if
the applicant has made a substantial showing of the denial of
a constitutional right.” 2 8 U.S.C. § 2253(c)(2).
The Supreme Court has explained that this standard is met if
“reasonable jurists could debate whether ... the
[motion] should have been resolved in a different manner or
that the issues presented were ‘adequate to deserve
encouragement to proceed further.'” Slack v.
McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d
542 (2000) ...