Opinion
5:23-CV-404-FL
06-10-2024
DONALD STANTON SHEALEY, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND RECOMMENDATION
ROBERT B. JONOS, JR. UNITED STATES MAGISTRATE JUDGE
This matter comes before the court on Petitioner Donald Stanton Shealey's pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, [DE-1015], and the Government's motion to dismiss, [DE-1021]. Petitioner filed a response to the Government's motion, [DE-1024], and the matter is fully briefed and ripe for decision. For the reasons stated below, it is recommended that the motion to dismiss be allowed and the petition be dismissed.
I. Procedural History
On September 24, 2008, Petitioner was charged in a six-count, multi-defendant indictment with conspiracy to possess with intent to distribute more than one kilogram of heroin, more than five kilograms of cocaine, and more than 50 grams of cocaine base (crack), in violation of 21 U.S.C. §§ 841(a)(1) & 846 (Count 1); distribution of heroin and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Counts 2, 3, 4, and 6); and distribution of heroin, in violation of 21 U.S.C. § 841(a)(1) (Count 5). [DE-3], On January 15,2009, Petitioner was charged in a superseding indictment with two additional counts of conspiracy to commit money laundering with the intent of carrying on illegal activity and knowing that the transactions were designed in part to conceal the unlawful activity, in violation of 18 U.S.C. § 1956(h) (Count 7), and money laundering and aiding and abetting, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2 (Count 8). [DE-175], On March 3, 2009, the Government filed a notice of intent to seek an enhanced penalty pursuant to 21 U.S.C. § 851 based on Petitioner's prior state court convictions for a violent felony offense and two felony drug offenses. [DE-247], On that same date, Petitioner entered a plea of not guilty. [DE-249], On March 24, 2009, after a 14-day jury trial, Petitioner was convicted on all counts. [DE-286].
At Petitioner's July 14, 2009 sentencing hearing, the court determined based upon an offense level of 43 and criminal history category of VI, that the advisory guideline range was life imprisonment for Count 1, 360 months' imprisonment for each of Counts 2 through 6, and 240 months' imprisonment for each of Counts 7 and 8. Sentencing Hr'g Tr. [DE-399] 30:14-17. The court also noted a fine range of $25,000 to $19,919,353. Id. at 30:20-21. The court sentenced Petitioner to a term of life imprisonment on Count 1, 360 months' imprisonment on each of Counts 2 through 6, and a term of 240 months' imprisonment on each of Counts 7 and 8, all to be served concurrently. Id. at 38:24-39:5; [DE-322]. The court further assessed a fine of $5,000,000 due immediately. Id. at 40:20-41:23; [DE-322]. After further hearing, Petitioner was ordered to pay restitution in the amount of $132,000.00. [DE-335, -336], Petitioner filed a direct appeal, but the Fourth Circuit affirmed the district court. United States v. Shealey, 641 F.3d 627, 631-35 (4th Cir. 2011), cert, denied, 565 U.S. 911 (2011). On May 20,2011, Petitioner filed a motion for resentencing, challenging the drug quantities attributed to him at sentencing, [DE-440], which the court denied, [DE-446]. A motion for reconsideration of the court's order denying resentencing was also denied. [DE-449, -453].
On August 13, 2012, Petitioner filed a motion pursuant to § 2255, alleging ineffective assistance of counsel and prosecutorial misconduct. [DE-497]. The court denied the motion, [DE-728], and the Fourth Circuit declined to issue a certificate of appealability and dismissed the appeal, United States v. Shealey, 668 Fed.Appx. 475 (4th Cir. 2016). Petitioner also filed several motions for sentence reductions, [DE-440, -449, -452, -631]; all were denied, [DE-446, -453, -578, -733], Another motion for resentencing was construed as an unauthorized successive § 2255 motion, [DE-772], and denied, [DE-773]. The appeal was dismissed by the Fourth Circuit. United States v. Shealey, 669 Fed.Appx. 136 (4th Cir. 2016). Petitioner also sought relief under § 2241 in the District of South Carolina, but relief was denied. See, e.g, Shealey v. Mosely, No. CV 4:17-1653-JFA, 2017 WL 3730559 (D.S.C. Aug. 30, 2017); Shealy v. Moseley, 735 Fed.Appx. 82 (4th Cir. 2018).
On May 1, 2020, Petitioner filed a motion to reduce his sentence under § 404 of the First Step Act, [DE-945], and on June 11, 2020, he filed a motion for compassionate release, [DE-960], The court determined Petitioner was eligible for relief under the First Step Act but declined to reduce Petitioner's sentence or to grant compassionate release. [DE-999]. Although the court recognized that Petitioner was no longer a career offender and the § 851 enhancement was not applicable, which reduced the mandatory minimum statutory penalties on counts one through six and the guideline range for counts two through six, the court found that the applicable factors weighed against reducing Petitioner's life sentence on count one. Id. at 5-7. The Fourth Circuit affirmed the district court's denial of relief. United States v. Shealey, No. 21-6680 (4th Cir. Feb. 16, 2023).
The instant motion was initially filed in the Fourth Circuit, pursuant to §§ 2244 and 2255(h), seeking authorization to file a second or successive § 2255 motion. [DE-1015]. The Fourth Circuit denied the § 2244 motion as unnecessary and transferred the § 2255 motion to this court where it was deemed filed on July 6, 2023. [DE-1014]. The Government moved to dismiss the petition, [DE-1021], to which Petitioner responded, [DE-1024].
II. Standard of Review
After conviction and exhaustion or waiver of any right to appeal, courts and the public can presume that a defendant stands fairly and finally convicted. See United States v. Frady, 456 U.S. 152, 164-65 (1982). However, prisoners in federal custody may attack the validity of their convictions pursuant to 28 U.S.C. § 2255. Section 2255 provides a means for a defendant convicted of a federal offense to collaterally attack a conviction or sentence on four grounds: (1) the sentence was imposed in violation of the Constitution or the laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “[T]hus § 2255 relief is not limited to constitutional error in a conviction or sentence.” United States v. Mikalajunas, 186 F.3d 490, 495 (4th Cir. 1999) (citations omitted). Where a petitioner seeks relief from a nonconstitutional error, “the scope of review... is more limited than that of constitutional error; a nonconstitutional error does not provide a basis for collateral attack unless it involves a fundamental defect which inherently results in a complete miscarriage of justice, or is inconsistent with the rudimentary demands of fair procedure[.]” Id. (internal quotation marks and citations omitted). “In a § 2255 proceeding, the burden of proof is on petitioner to establish his claim by a preponderance of the evidence.” Toribio-Ascencio v. United States, No. 7:05-CR-97-FL, 2010 WL 4484447, at *1 (E.D. N.C. Oct. 25, 2010) (citing Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958)).
The purpose of a motion to dismiss under Rule 12(b)(6) is to test the legal sufficiency of the complaint, not to resolve conflicts of fact or to decide the merits of the action. Edwards v. City of Goldsboro, 178 F.3d 231, 243-44 (4th Cir. 1999). This standard applies equally to a Rule 12(b)(6) motion challenging a § 2255 motion. See Rule 12, Rules Governing Section 2255 Proceedings (applying the Federal Rules of Civil Procedure to § 2255 proceedings to the extent such rules are not inconsistent with any statute or the § 2255 rules). However, the “‘[f] actual allegations must be enough to raise a right to relief above the speculative level' and have ‘enough facts to state a claim to relief that is plausible on its face.'” Wahi v. Charleston Area Med. Ctr, Inc., 562 F.3d 599, 616 n.26 (4th Cir. 2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (“While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”). “[A] plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do.” Twombly, 550 U.S. at 555 (citations omitted). In considering a motion to dismiss, the court assumes the truth of all facts alleged in the complaint and the existence of any fact that can be proved, consistent with the complaint's allegations. Erickson v. Pardus, 551 U.S. 89, 94 (2007). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Revene v. Charles Cnty. Comm'rs, 882 F.2d 870, 872 (4th Cir. 1989) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). Moreover, a court “need not accept the legal conclusions drawn from the facts” nor “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd. P'ship, 213 F.3d 175, 180 (4th Cir. 2000).
III. Analysis
Petitioner contends that he is now actually innocent of his life sentence as a career offender because his prior North Carolina state court convictions have been expunged, and he requests that his life sentence be vacated and that he be resentenced without consideration of the now-expunged prior convictions. Pet'n [DE-1015] at 8; Pet'r Resp. [DE-1024]. The Government contends that the career offender claim is not cognizable under § 2255 and the expunged convictions do not affect Petitioner's guideline range. Gov't Mem. [DE-1022] at 10-13. The undersigned agrees with the Government that the expunged convictions do not result in a change to Petitioner's guideline range of life on count one and therefore recommends that the Government's motion be allowed and the petition be dismissed.
The page number referenced is that assigned by CM/ECF where it differs from the document's internal pagination.
As an initial matter, the court has already acknowledged that Petitioner is no longer a career offender and that the § 851 enhancement is not applicable but nevertheless found that this did “not alter the Guidelines range for count one that was applicable at defendant's original sentencing” and declined to reduce Petitioner's sentence. [DE-999] at 5 & n.2; see also Am. PSR [DE-977] at 2 (stating that statutory enhancement no longer applies and defendant is no longer a career offender, but the guideline imprisonment range remains life). Petitioner's expunged convictions likewise provide no grounds to alter his sentence.
Petitioner argues that his criminal history points would be zero as a result of the expunged convictions. Pet'r Resp. [DE-1024] at 3. Even assuming for the sake of argument that this is accurate, which it is not as discussed below, because Petitioner's offense level remains 43 after the removing the statutory enhancement and career offender designation, a reduction in criminal history points to zero would not change the guideline range of life for count one. See PSR [DE-698] at 22; Am. PSR [DE-977] at 2. The guideline range for all criminal history categories with an offense level of 43 is life imprisonment. See U.S.S.G. § 5A; see also United States v. Price, 906 F.3d 685, 688 (7th Cir. 2018); United States v. Pete, 819 F.3d 1121, 1135 (9th Cir. 2016); United States v. Chavez, 584 F.3d 1354, 1365 (11th Cir. 2009). Thus, even if Petitioner had no criminal history points, his guideline sentencing range on count one would remain life imprisonment, and this court has already determined that a reduction in Petitioner's sentence was not appropriate where the First Step Act did not alter the guideline range for count one that was applicable at Petitioner's original sentencing, [DE-999] at 5-7.
While Petitioner states that “all drugs minus 2/amendment 782 would bring his base offense level down from 38 to a base offense level of only 36,” Pet'r Mem. [DE-1024] at 11, the Amended PSR explains that the “base offense level is 38 (base offense level 36 for drugs + 2 for firearm pursuant to USSG §§ 2X1.1(a), 2S1.1(a)(1), and 2D1.1(c)(1)), which is then increased by 8 levels based on the originally applied adjustments, resulting in a total offense level of 46. Because the total offense level cannot exceed 43, the total offense level is reduced from 46 to 43,” Am. PSR [DE-977] at 2. Petitioner's assertion that his base offense level should be 36 does not appear to take into account the two level increase for a firearm, the two level increase for the money laundering conviction, the four level increase for being an organizer or leader of an extensive criminal activity, or the two level enhancement for obstruction of justice. PSR [DE-698] at 22.
Petitioner is also incorrect that his criminal history points would be zero given the expunged convictions. The only scored conviction that was expunged was Petitioner's June 12, 1995 arrest and subsequent conviction for Robbery With a Dangerous Weapon (95CRS10053), which was scored as three criminal history points. PSR [DE-698] at 17; Pet'n and Order of Expunction [DE-1015] at 24. Petitioner's convictions for Assault With a Deadly Weapon Serious Injury and Felony Hit/Run Fail to Stop, Personal Injury that were also expunged were scored as zero criminal history points, so the expungement had no effect on the criminal history score. PSR [DE-698] at 17; Pet'n and Order of Expunction [DE-1015] at 24. The expunged Assault on a Female offense from 2004 (04CR047963) was not scored because Petitioner was found not guilty, so this expungement also had no impact on the criminal history score. PSR [DE-698] at 19; Pet'n and Order of Expunction [DE-1015] at 22. Petitioner has presented no evidence that his remaining scored convictions for drug possession and intent to sell (00CRS60542 & 00CRS60543), Assault on a Female (00CR63088 & 00CR63089), and Resisting a Public Officer (06CR58117) were expunged. Compare PSR [DE-698] at 16-18, with Pet'ns and Orders of Expunction [DE-1015] at 17-25. Therefore, even if it were appropriate to reduce Petitioner's criminal history score by three, from ten to seven, PSR [DE-698] at 18, to account for the expunged June 12, 1995 arrest and subsequent conviction for Robbery With a Dangerous Weapon (95CRS10053), it has no material impact on Petitioner's sentence, because as explained above his offense level remains 43 and the guideline range for count one remains life.
Accordingly, it is recommended that the Court DENY Petitioner's request that his life sentence be vacated and that he be resentenced without consideration of the now-expunged prior convictions, and that the court ALLOW the Government's motion to dismiss.
IV. Conclusion
For the reasons stated above, it is recommended that that the motion to dismiss be allowed, and the petition be dismissed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until June 24, 2024 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).