United States v. Foley

          OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR A RULING ON THE MERITS, DENYING AS MOOT THE GOVERNMENT'S MOTION TO STAY THE CASE, AND DISMISSING AS UNTIMELY DEFENDANT'S 28 U.S.C. § 2255 PETITION (DOCS. 51, 53, & 57)

          Christina Reiss, Judge.

         This matter came before the court on Defendant Ronald Foley's petition to vacate and correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. 51), the government's motion to stay the case (Doc. 53), and Defendant's motion for a ruling on the merits (Doc. 57). On October 5, 2017, Defendant filed his second set of supplemental documents in support of his § 2255 petition, at which time the court took the matter under advisement.

         Defendant argues that his sentence was enhanced pursuant to the residual clause of the then-mandatory United States Sentencing Guidelines (the "U.S.S.G." or the "Guidelines") and thereby violates his right to due process pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). Johnson held that the residual clause of the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1), was void for vagueness under the Due Process Clause. Welch made the Johnson rule retroactive to cases on collateral review. Defendant asserts that his prior convictions do not qualify as crimes of violence under either the enumerated offenses clause or the force clause of § 4B 1.2(a) of the Guidelines. Because the ACCA's residual clause has been ruled unconstitutionally vague, he contends there is no basis on which he qualifies for status as a career offender. Defendant further argues that his claim is not barred by Beetles v. United States, 137 S.Ct. 886 (2017), wherein the Supreme Court held that the residual clause of § 4B1.2 of the advisory Guidelines is not void for vagueness. Defendant distinguishes the procedural posture of his case, arguing that his January 9, 2003 sentencing occurred when the Guidelines were mandatory and prior to the Supreme Court's decision in United States v. Booker, 543 U.S. 220 (2005), and as such "the [c]ourt had no choice but to impose the [mandatory] career offender sentence." (Doc. 57 at 14.)

         The government's opposition to Defendant's § 2255 petition is twofold. First, the government argues that Defendant is not entitled to relief because his claim is premature. Second, the government contends that this court properly determined that Defendant had previously been convicted of multiple crimes of violence (six convictions in Connecticut for first degree robbery) and thus qualified as a career offender.

         Defendant is represented by Assistant Federal Public Defender Barclay T. Johnson. The government is represented by Assistant United States Attorney Gregory L. Waples and Assistant United States Attorney Melissa A. D. Ranaldo.

         I. Factual and Procedural Background.

         On January 9, 2003, this court sentenced Defendant to a combined term of 262 months imprisonment, consisting of the statutory maximum term of 240 months imprisonment following his guilty plea to one count of bank robbery, and a consecutive term of 22 months imprisonment following his guilty plea to one count of escape. The court adopted the presentence report ("PSR") as its findings of fact and noted that Defendant had a prior third degree burglary conviction for breaking and entering into a private residence in Connecticut and stealing property contained therein, as well as multiple convictions for first degree robbery in Connecticut. The court declined to consolidate Defendant's robbery convictions into one offense and, as a result, concluded that the Guidelines' career offender enhancement was applicable.^[1]

         "As a general matter, reliance on a federal PSR's factual description of a defendant's pre-arrest conduct to determine whether a prior offense constitutes a 'crime of violence' under U.S.S.G. § 4B 1.2(a)(1) is prohibited." United States v. Reyes, 691 F.3d 453, 459 (2d Cir. 2012). In this case, the court does not rely on the PSR's description of Defendant's pre-arrest conduct to determine whether his prior convictions constituted "crimes of violence" but merely for the purposes of determining whether "there exists a close factual relationship between the underlying convictions." United States v. Mapp, 170 F.3d 328, 338 (2d Cir. 1999) (internal quotation marks omitted).

         On or about January 16, 1991, Defendant was arrested for robbery in Connecticut and implicated himself in thirteen robberies and one burglary in the Hartford, Connecticut area. Paragraph 115 of the PSR states that Defendant entered a Glastonbury, Connecticut department store, handed a note to the cashier that stated he had a gun, and demanded the cashier hand over the money in the cash register. When the cashier refused to immediately comply, Defendant grabbed the money from the cash drawer and fled.

         In Paragraph 116 of the PSR, a police report also dated January 16, 1991 indicated that Defendant entered a West Hartford, Connecticut gas station, proffered a note stating he possessed a gun, and demanded money. The employee placed money in the cash register drawer which Defendant took before leaving.

         As detailed in PSR Paragraph 117, on or about January 14, 1991, Defendant entered an Enfield, Connecticut flower shop and presented a note stating he had a gun and demanded money. The clerk began removing money from the cash register when Defendant reached over the counter and grabbed money from her hands and the open register cash drawer.

         According to Paragraph 118 of the PSR, Defendant entered a woman's clothing store in Southington, Connecticut on January 14, 1991. With his hand in his right jacket pocket, Defendant handed an employee a written note that stated he had a gun and demanded money. The employee handed Defendant the money from the cash register.

         On or about January 11, 1991, Defendant entered a pharmacy in Hartford, Connecticut. According to Paragraph 120 of the PSR, Defendant handed a pharmacist a note that stated he had a gun and demanded money. The pharmacist opened the cash register, and Defendant removed the ten and twenty dollar bills before he fled the store.

         The PSR noted in Paragraph 121 that on January 12, 1991, Defendant entered a store in Hartford, Connecticut. Upon observing the number of people inside the store, Defendant temporarily left until some of the customers departed. He then reentered the store, approached a cash register, and ordered the employee to open the cash register. When the employee did not immediately do so, Defendant brandished a small silver handgun and repeated his order to open the cash register. While the clerk was collecting the money, Defendant reached over and grabbed money.

         The PSR described the events underlying Defendant's burglary conviction in Paragraph 119.^[2] On or about January 2, 1991, Defendant and another man entered a private residence without permission and stole a handgun and a floor safe containing a large, rare, and valuable collection of gold and silver coins. Defendant confessed to the burglary on January 16, 1991. The PSR did not indicate the time of day the burglary took place, whether anyone was present in the residence at the time, or Defendant's method of entry.

         The PSR recommended that the court find that Defendant was a career offender as defined in Guidelines § 4B1.1. In support of that recommendation, the PSR noted that Defendant was at least eighteen years of age at the time of the Vermont bank robbery offense, that the bank robbery was a felony that was a crime of violence, and that Defendant had at least two prior felony convictions for crimes of violence. See PSR at 15, ¶ 94a. Citing Guidelines § 4A1.2 n.3 and the Second Circuit's analysis in Mapp, the PSR recounted that Defendant was sentenced in Connecticut on May 20, 1993 for thirteen robbery offenses and burglary, as described in Paragraphs 115-121 of the PSR, and concluded:

the [Connecticut] robberies in question cannot be considered related . . . because the robberies occurred on different days and involved different locations, and victims. Based on the foregoing, the convictions outlined in [Paragraphs 115 through 121 are thus unrelated and qualify as predicate offenses for the career offender application.

PSR at 15, ¶ 94a n.1. In making the Guidelines calculations, the court concluded that Defendant committed the offenses of conviction subsequent to sustaining six felony convictions for first degree robbery and one conviction for burglary and therefore qualified as a career offender. See PSR at 21-24, ¶¶ 115-18, 120-21.

         Based on controlling Second Circuit precedent, in determining Defendant's Guidelines range, the court adopted the PSR's recommendation, found that the offense of bank robbery occurred on or about March 22, 2001, the offense of escape occurred on March 24, 2002, and that the Sentencing Guidelines applied. The court further found that certain offense characteristics applied and increased Defendant's offense level, including that: (1) the property of a financial institution was taken; (2) Defendant obstructed justice; (3) Defendant used force against another person during the commission of his escape; (4) the victim of the escape offense was a government officer; (5) Defendant physically restrained the victim of the escape offense; (6) Defendant recklessly created a substantial risk of death or serious bodily injury to another in the course of fleeing from a law enforcement officer; and (7) Defendant did not demonstrate an acceptance of responsibility.

         After reviewing the nature of the offenses, the court determined that Defendant's combined offense level was 32 and that he had 36 criminal history points, resulting in criminal history category VI.^[3] The statutory maximum was 20 years imprisonment for the bank robbery conviction, and Defendant's Guidelines imprisonment range was 210 to 262 months.^[4] The court denied the government's request for an upward departure, and sentenced Defendant to a term of imprisonment of 240 months for bank robbery consecutive to a term of imprisonment of 22 months for the escape offense, for a total sentence of 262 months imprisonment followed by a three year term of supervised release.

         On appeal, the Second Circuit affirmed Defendant's sentence. In rejecting his argument that the court erred in denying him an adjustment for acceptance of responsibility, the Second Circuit held that the "district court's imposition of [the] sentence within a properly calculated Sentencing Guidelines range is not appealable, " and noted that Defendant "identifie[d] no errors in the district court's sentencing calculations." United States v. Foley, 71 Fed.Appx. 889, 891 (2d Cir. 2003).

         II. Conclusions of Law and Analysis.

         A. Whether to Stay the Case or Rule on the Merits.

         On July 28, 2016, the government filed a motion requesting the court impose a stay until the Supreme Court's decision in Beckles. Defendant's anticipated release date from incarceration is April 7, 2020, and he argues in his competing motion to proceed on the merits that, in the absence of expedited treatment of his motion, he will be deprived of meaningful relief.

         In Blow v. United States,829 F.3d 170 (2d Cir. 2016), the ...