Opinion
3:20-cv-52-SLH-KAP
07-29-2021
RICARDO SUGGS, Petitioner, v. VICKIE MOSER, Warden, F.C.I. LORETTO, Respondent
REPORT AND RECOMMENDATION RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge.
Having considered the petition for a writ of habeas corpus and brief in support, ECF no. 4, ECF no. 5, the Response, ECF no. 13, and the reply to the Response, ECF no. 16, I recommend that the petition be denied.
Report
Petitioner Ricardo Suggs is an inmate at F.C.I. Loretto, serving a 324-month sentence imposed by the Honorable Frederick Stamp, Jr., of the United States District Court for the Northern District of West Virginia in United States v. Suggs, No. 5:06-cr-27 (N.D. W.Va.), after juries in two separate trials convicted Suggs of possession of a firearm by a convicted felon, 18 U.S.C.§ 922(g)(i)(Count 1, trial 1); witness tampering with intent to kill, 18 U.S.C.§ 1512(a)(1)(A) (Count 2, trial 2); and witness tampering by use of force, 18 U.S.C. § 1512(a) (2)(A)(Count 3, trial 2). The facts of the case are discussed in the Response, which account petitioner agrees is accurate, see ECF no. 16 at 2, and are also set out in the appellate opinion affirming the conviction and sentence. United States v. Suggs, 266 Fed.Appx. 258 (4thCir.), cert, denied, 553 U.S. 1073 (2008).
After an unsuccessful motion to vacate under 28 U.S.C.§ 2255, see United States v. Suggs, 447 FedAppx. 511 (4th Cir. 2011)(denying a certificate of appealability), petitioner pursued a habeas corpus petition under 28 U.S.C.§ 2241(c)(3), attacking his conviction and sentence on Counts 2 and 3. The Honorable John Preston Bailey denied that petition in 2017. Suggs v. Saad, 2017 WL1862468 (N.D.W.Va. May 9, 2017).
In this petition, petitioner attacks his conviction on Count 1, arguing that in light of Rehaif v. United States, 139 S.Ct. 2191 (2019) (conviction for violating 18 U.S.C. § 922(g)(1) requires proof that defendant knowingly possessed a firearm or ammunition and knew that his criminal record made that possession illegal), he is actually innocent of being a felon in possession. He also argues that this claim is one properly brought in a habeas petition because a motion to vacate under 28 U.S.C.§ 2255 is an inadequate or ineffective remedy. The government argues the contrary of those points.
It is not necessary to address either of the parties' arguments because of the concurrent sentence doctrine. A special assessment is imposed for each separate count of conviction, and therefore on direct appellate it would be necessary to review the record as to each count for which petitioner was convicted. On collateral review, however, any financial obligation imposed by the special assessment on Count 1 does not constitute "custody," United States v. Ross, 801 F.3d 374, 382 (3d Cir. 2015), and the concurrent sentence doctrine allows a court to decline review of challenges to a judgment of conviction that will not affect a petitioner's custody or result in collateral consequences. See e.g. Champagne v. Warden Lewisburg USP, 794 Fed.Appx. 143, 146 (3d Cir. 2019), siting Gardner v. Warden Lewisburg USP, 845 F.3d 99 (3d Cir.2017). Petitioner does not assert any collateral consequences, and review of the sentence shows that even if the petitioner's sentence on Count 1 were vacated it would not affect his custody.
The docket sheet in United States v. Suggs, No. 5:06-cr-27 (N.D. W.Va.) is Exhibit 5 to the Response; the Judgment and Commitment Order is Exhibit 6. Judge Stamp imposed three consecutive terms of imprisonment: a term of 120 months imprisonment for Count One, a consecutive term of 240 months imprisonment on Count 2, and a consecutive term of 240 months imprisonment on Count 3 "consecutive[] to Counts One and Two, to the extent necessary to achieve a total sentence of 324 months." Since the sentences on Count 1 and Count 2 already amounted to 360 months, the manner of Judge Stamp's phrasing indicates that 1) he did not want to get bogged down in arithmetic, and 2) wanted to ensure that the sentence imposed was understood to be an aggregate term of 324 months imprisonment. (The Court of Appeals for the Fourth Circuit noted that the advisory Sentencing Guideline range for petitioner was 324-405 months.) Vacating the sentence for Count 1 would still leave two terms of 240 months consecutive to each other "to the extent necessary to achieve a total sentence of 324 months." Because 324 months is less than 480 months, petitioner's custody would not be affected at all.
Let me anticipate an objection by observing that it is black letter law that the power to issue a writ of habeas corpus does not allow a habeas court to resentence petitioner de novo. Just as surely, even if the government's arguments that this court has no jurisdiction and the conviction on Count l is lawful are wrong, the power of this court to vacate the sentence on Count 1 through a writ of habeas corpus does not permit this court to rewrite the sentencing court's sentence. That is, the concurrent sentence doctrine cannot be evaded by claiming this court can impose a sentence lower than 324 months if it were to vacate Count 1 because this court has the power to imagine what different sentence Judge Stamp might have imposed or what different phrasing Judge Stamp might have used if he had known that a decade and a half after the sentence was imposed Count l might be vacated. With a decade and a half of hindsight, petitioner might wish that his counsel had asked Judge Stamp to impose a 324-month sentence in three consecutive terms of 108 months. Maybe Judge Stamp would have done that. The government might wish that Judge Stamp had placed the sentences on Count 2 and Count 3 first in the Judgment and Commitment Order, and then imposed sentence on Count 1, or even expressly declared the sentence on Count 1 to be concurrent. Maybe Judge Stamp would have done that.
However, the vehicle to challenge the sentence that Judge Stamp did impose was the direct appeal, and the forum to make any claim that counsel should have asked Judge Stamp to structure the sentence differently was the sentencing court, in a claim of ineffectiveness of counsel made in a motion to vacate. Habeas gives this court the power to vacate a sentence that imposes custody that violates the Constitution or laws of the United States. It is not a license to tinker based on guesswork. The concurrent sentence doctrine declares that where custody would not be affected, federal courts are not "in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong." Spencer v. Kemna, 523 U.S. 1, 18 (l998)(Scalia, J., discussing mootness). Because reviewing the Rehaif claim would be no more than issuing an advisory opinion, the petition should be denied.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch. 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).