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Bullard v. United States

United States District Court, N.D. Ohio

May 25, 2017

DWIGHT BULLARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          OPINION & ORDER [RESOLVING DOC. 70]

          JAMES S. GWIN, UNITED STATES DISTRICT JUDGE:

         On January 9, 2017, Petitioner Dwight Bullard petitioned for habeas corpus relief under 28 U.S.C. § 2255.[1] Bullard argues that this Court improperly classified him as a career offender and that he received ineffective assistance of counsel. For the following reasons, the Court DENIES Bullard's motion.

         I. BACKGROUND

         On November 13, 2014, the United States indicted Petitioner Bullard for distribution of heroin, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).[2]

         On December 10, 2014, Bullard filed a motion to suppress evidence and to return illegally seized property.[3] Following a hearing, the Court denied Bullard's suppression motion.[4]

         Bullard pled guilty to the indictment on January 13, 2015.[5] Bullard's presentence investigation report recommended that the Court sentence Bullard as a career offender because of two prior controlled substance convictions: a 2004 Arizona conviction for the attempted transport of cocaine, in violation of Arizona Rev. Stat. § 13-3408, and a 2014 Ohio conviction for drug trafficking, in violation of Ohio R.C. § 2925.03(A)(2).[6] The career offender classification subjected Bullard to a mandatory minimum of 120 months imprisonment.

         The Presentence Report recommended an offense level of 35 and a criminal history category of VI, resulting in a guideline range of 292 to 365 months. At sentencing, Bullard's counsel did not challenge Bullard's classification as a career offender.[7] The Court sentenced Bullard to 140 months imprisonment followed by eight years of supervised release.[8]

         Petitioner Bullard appealed the Court's denial of his motion to suppress, but did not appeal his career offender classification. The Sixth Circuit affirmed this Court's suppression decision on October 6, 2016.[9]

         On January 9, 2017, Bullard petitioned for habeas corpus relief under 28 U.S.C. § 2255.[10]Bullard argues that the Court misclassified him as a career offender, which “constitutes a complete miscarriage of justice.”[11] Bullard argues that neither the Arizona nor the Ohio conviction qualifies as a Sentencing Guidelines “controlled substance” offense.[12] Bullard also alleges ineffective assistance of counsel due to his lawyer's failure to object to the career offender classification at sentencing or on appeal.[13]

         The Government opposes.[14] The Government states that Bullard's Guidelines arguments are non-constitutional claims that he cannot raise in a § 2255 petition.[15] The Government further argues that Bullard received effective assistance of counsel because it would have been “frivolous” to challenge the career offender classification.[16]

         II. LEGAL STANDARD

         Title 28 United States Code Section 2255 gives a federal prisoner post-conviction means of collaterally attacking a conviction or sentence that violates federal law. Section 2255 provides four grounds upon which a federal prisoner may challenge his conviction or sentence:

1) That the 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;
3) That the sentence exceeded the maximum authorized by law; or
4) That the sentence is otherwise subject to collateral attack.[17]

         To prevail on a § 2255 motion alleging a constitutional error, the movant “must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings.”[18]

         III. DISCUSSION

         A. Guidelines Calculation

         Petitioner Bullard argues that the Court improperly characterized him as a career offender under Sentencing Guidelines § 4B1.1. Bullard argues that both his 2004 Arizona state conviction for attempted transportation of narcotic drugs for sale and his 2014 Ohio state conviction for drug trafficking do not qualify as predicate Sentencing Guidelines “controlled substance” offenses.

         The Guidelines classify a defendant as a “career offender” when the defendant “has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”[19] The Guidelines define qualifying controlled substance offenses as those “that prohibit[ ] the manufacture, import, export, distribution, or dispensing of a controlled substance . . . or the possession of a controlled substance . . . with intent to manufacture, import, export, distribute, or dispense.”[20]

         The Sixth Circuit has adopted a “categorical” approach for determining whether a defendant's prior conviction is a “controlled substance offense.”[21] Typically, sentencing courts only use the fact of the prior conviction and the statutory definition of the predicate offense to determine whether a prior conviction is a controlled substance offense.[22]

         Certain statutes, however, are what the Supreme Court calls “divisible” offenses because they “se[t] out one or more elements of the offense in the alternative.”[23] When a statute “list[s] potential offense elements in the alternative, ” it “renders opaque which element played a part in the defendant's conviction.”[24]

         Accordingly, when a divisible statute is involved, courts employ a “modified categorical approach.”[25] Under the modified categorical approach, courts first determine whether the relevant statute of conviction encompasses conduct that would be a “controlled substance offense, ” plus conduct that would not.[26] If that is the case, the federal sentencing court consults the state-court indictment and the jury instructions or plea agreement for the specific conduct with which the defendant was charged in order to appropriately characterize the offense.[27]Finally, the court assesses whether the specific crime of conviction is a controlled substance offense.[28]

         Arizona Conviction

         Petitioner Bullard argues that his Arizona Rev. Stat. § 13-3408 conviction does not categorically qualify as a predicate controlled substance offense. Citing the Ninth Circuit's Vera-Valdevinos v. Lynch[29] decision, Bullard argues that § 13-3408 is too broad to be a “controlled substance offense” because it criminalizes two substances that are not on the Federal Controlled Substance Schedule.[30]

         In 2004, Bullard pleaded guilty to violating Arizona Revised Statute § 13-3408.[31] Section 13-3408 criminalizes a variety of conduct:

         A person shall not knowingly:

1. Possess or use a narcotic drug.
2. Possess a narcotic drug for sale.
3. Possess equipment or chemicals, or both, for the purpose of manufacturing a narcotic drug.
4. Manufacture a narcotic drug.
5. Administer a narcotic drug to another person.
6. Obtain or procure the administration of a narcotic drug by fraud, deceit, misrepresentation or subterfuge.
7. Transport for sale, import into this state, offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer a narcotic drug.[32]

         Because Arizona Rev. Stat. § 13-3408 “comprises multiple, alternative versions of the crime, ”[33] the statute is divisible and subject to the modified categorical approach. The alternative versions of a § 13-3408 crime include drug possession, drug manufacturing, drug administration, and drug trafficking.

         Furthermore, § 13-3408 encompasses both conduct that qualifies as a § 4B1.1 “controlled substance offense” and conduct that does not. For example, § 13-3408(A)(1) criminalizes possession or use of a narcotic drug. Mere possession or use would not be a qualifying offense under the Guidelines, which limits the enhancement to “manufacture, import, export, distribution, or dispensing” offenses or possession with the intent to manufacture, import, export, distribute, or dispense.[34] Accordingly, this Court must “identify, from ...


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