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Barrett v. United States

United States District Court, S.D. Ohio, Eastern Division

April 6, 2017

ANTHONY C. BARRETT, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. No. 2:15-cv-2876

          JUDGE, ALGENON L. MARBLEY

          REPORT AND RECOMMENDATION

          TERENCE P. KEMP, UNITED STATES MAGISTRATE JUDGE

         Petitioner, a federal prisoner, has filed a motion to vacate his sentence pursuant to 28 U.S.C. §2255. The case is before the Court on the motion (Doc. 136), the United States' response (Doc. 155), and Petitioner's reply and supplemental memorandum supporting reply (Docs 159 and 160). For the following reasons, it will be recommended that the motion to vacate be DENIED.

         I. Facts and Procedural History

         On July 7, 2011, the grand jury indicted Anthony C. Barrett, Henry B. Moore, Jr., and Nathaniel Crews, Jr. Count 1 charged the three defendants with conspiring to commit armed bank robbery. Petitioner and one or more of the other two defendants were also charged with committing the robbery (which took place at a Huntington National Bank Branch located on East Main Street in Bexley, Ohio) and with carrying and brandishing one or more firearms during the robbery (Counts 2 and 3). Finally, the grand jury charged Petitioner with possessing both firearms and ammunition after having been convicted of three prior violent felonies (Counts 4 and 5). (Doc. 16). Because Petitioner was financially unable to retain counsel, the Court appointed attorney J. Kristin Burkett to represent him. (Doc. 23).

         Petitioner was arraigned on July 20, 2011 and pleaded not guilty. The case was set for trial on August 29, 2011. Twelve days before trial, Petitioner signed a plea agreement which obligated him to plead guilty to Counts 2 and 4 of the indictment. He acknowledged that he could be sentenced to up to 25 years in prison for the armed bank robbery and that Count 4 carried a term of imprisonment of between 15 years and life, but he and the United States stipulated to a sentence of 19 years, which would bind the Court if the plea agreement were accepted. Petitioner also waived his right to appeal his sentence or to challenge it collaterally through a §2255 proceeding, but retained the right to challenge his sentence on grounds of ineffective assistance of counsel or prosecutorial misconduct. (Doc. 48, ¶s 1, 2, 11 & 13). Two days later he appeared before Judge Marbley and entered his guilty plea. His plea was accepted and on December 7, 2011, Judge Marbley sentenced Petitioner to a total of 228 months of imprisonment - the agreed sentence of nineteen years - on each of the two counts, to be served concurrently. That sentence is reflected in the judgment and commitment order filed on December 14, 2011. (Doc. 76).

         Petitioner did not appeal. However, he filed a motion to vacate sentence on December 7, 2012. He raised nine separate grounds for relief. For the most part, despite the fact that the plea agreement contained a waiver of the right to file a motion under §2255, the United States addressed those claims on their merits. The Court, however, dismissed all claims not based on an allegation of ineffective assistance of counsel because of the guilty plea or the waiver contained in the plea agreement, and denied the remaining grounds for relief as lacking in merit. (Doc. 123). Petitioner unsuccessfully appealed that decision, with both this Court and the Court of Appeals denying his request for a certificate of appealability. (Docs. 131 and 133).

         Petitioner's second motion to vacate - the one being addressed by this Report and Recommendation - was filed on September 4, 2015. Because it was a second or successive motion, this Court transferred it to the Court of Appeals on November 13, 2015. In an order filed on August 24, 2016, the Court of Appeals granted Petitioner leave to file this motion, reasoning that because Petitioner's current petition raised an issue about the proper application of Johnson v. United States, 135 S.Ct. 2551 (2015) to his sentence on Count Four, and because the holding in Johnson had, in Welch v. United States, 136 S.Ct. 1257 (2016), been made retroactive to cases on collateral review, good cause existed to allow Petitioner to proceed on his second motion. This Court then issued the show cause order which led to the filing of the response, reply, and supplemental memorandum described above.

         II. Petitioner's Claims and the United States' Response

         Petitioner received concurrent 19-year sentences on Count Two, the armed bank robbery charge, and Count Four, on which he was sentenced under the Armed Career Criminal Act, or ACCA. As more fully discussed below, Johnson applies only to sentences imposed under the ACCA. Petitioner's motion asserts that at least one of the three prior offenses used to qualify him for a 15-year minimum sentence under the ACCA was based on the residual clause of the statute, which Johnson held to be void for vagueness. According to Petitioner, this error renders the entire plea agreement void.

         The United States opposes granting relief on numerous grounds. It argues that the three violent felony convictions used to sentence Petitioner under the ACCA - two Florida robbery convictions and one Ohio robbery conviction - count as prior violent felonies under other sections of the ACCA which were not impacted by the Johnson decision. It also asserts that this claim was waived by the plea agreement, that it was procedurally defaulted because Petitioner did not appeal his sentence, and that, under the “concurrent sentence” doctrine, the Court should decline to review the ACCA sentence because, even if it were vacated or reduced, Petitioner would still have to serve the same 19-year sentence which was imposed on the armed bank robbery count. Anticipating that Petitioner might attempt to excuse any procedural default of this claim by arguing that it would have been futile to raise the vagueness challenge to the ACCA before Johnson was decided, the United States asserts that this argument was not so novel that counsel could not reasonably have believed in its merits even before the Supreme Court adopted it (and, in the process, effectively overruled contrary decisions from the Sixth Circuit Court of Appeals).

         Petitioner responds to these arguments as follows. First, he asserts that robbery can never qualify as a crime of violence under the ACCA. Second, he contends that his current claim is actually a claim that his trial counsel was constitutionally ineffective because she permitted him to plead guilty to an ACCA charge when the statute was void for vagueness. He also argues that his counsel was ineffective for not filing an appeal which raised the vagueness issue. Lastly, he responds to the argument that the Court should apply the concurrent sentence doctrine by contending that the Johnson error voids his entire plea agreement. In his supplemental reply, he appears to clarify his claim concerning whether the robbery offenses for which he was convicted qualify as crimes of violence, stating that they do not due to the vagueness of the residual clause of the ACCA.

         III. Discussion

         A. Johnson ...


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