Shaun Dozier v. USA, No. 1:2013cv05061 - Document 9 (S.D.N.Y. 2014)
Court Description: OPINION: Dozier's petition for relief under 28 U.S.C. § 2255 is granted with respect to Count 1 only, and his sentence pursuant to Count 1 is vacated and remanded for resentencing. IT IS SO ORDERED. (Signed by Judge Robert W. Sweet on 6/18/2014) (ama)
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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ----------------------------------------x SHAUN DOZIER, Petitioner, 13 Civ. 5061 (RWS) - against Sl 08 Cr. 008 (RWS) UNITED STATES, OPINION Respondent. ----------------------------------------x A P P E A R A N C E S: PRO SE USDCSDNY DOCUMENT ELECTRONICALLY FILED SHAUN DOZIER 60702-054 FCI Schuylkill P.O. Box 759 Minersville, PA 17954 ATTORNEYS FOR THE GOVERNMENT PREET BHARARA United States Attorney for the Southern District of New York One St. Andrew's Plaza New York, NY 10007 By: Nola B. Heller, Esq. Randall Jackson, Esq. DOC#: DA'P!.. FILED: ~ 23I Et Sweet, D.J. Petitioner Shaun Dozier ("Dozier" or "Petitioner") moved pursuant to 28 U.S.C. § has 2255 to vacate, set aside or correct his sentence claiming ineffective assistance of counsel. Based on the conclusions set forth below, Petitioner's sentence for Count 1 is vacated and remanded for resentencing. Prior Proceedings On November 13, 2008, jury trial of all three Petitioner was convicted after a counts with which he was charged in Indictment Sl 08 CR. 008 (RWS): Count 1: conspiring to distribute, and to possess with intent to distribute, 50 grams and more of crack cocaine, in violation of 21 U.S.C. 846 and 841 (b) (1) (A); §§ Count 2: distributing and possessing with intent to distribute a quantity of crack cocaine, in violation of 21 U.S.C. §§ 841 (b) (1) (C); a and Count 3: possessing and using furtherance of the conspiracy charged in Count 1, was discharged, in violation of 18 U.S.C. Petitioner sentenced was mandatory minimum term of on June 7, 240 months' 2011 § 841(a) and firearm in which firearm 924 (c) (1) (A) (iii). principally imprisonment: 10 to the years' imprisonment on Count 1, to be followed by consecutive term of 10 years' imprisonment on Count 3. 1 ------------- ----------------------------------- The Fair Sentencing Act August 3, 2010. It altered ("FSA") the was signed into law on mandatory minimum applicable for offenses involving crack cocaine: for § a ten-year mandatory minimum sentence penalties The threshold under 21 U.S.C. 841 (b) (1) (A) was raised from 50 grams to 280 grams. On February 10, 2011, the Second Circuit held, in United States v. Acoff, 634 F.3d 200 (2d Cir. 2011), that the FSA was not retroactive to crimes that had been committed before the enactment of the FSA. Dozier's appeal was filed on June 14, 2011. Petitioner's appellate counsel filed a brief on Petitioner's behalf with the United States Court of Appeals for the Second Circuit on December 21, 2011. Given Petitioner's brief the Second did not Circuit's make any decision arguments in Acoff, concerning the retroactive applicability of the FSA. On June 21, 2012, the Supreme Court in Dorsey v. United States, 132 S. Ct. 2321 (2012), ruled that the FSA was retroactive to any defendant who was convicted before the enactment of the FSA but sentenced after the enactment. On August 8, 2012, the Second Circuit States abrogated Highsmith, its 688 F.3d 74 holding in Acoff in United (2d Cir. 2012), in light of Dorsey. 2 v. Dozier's appellate counsel did not raise Dorsey or the retroactive applicability of the FSA with the Court of Appeals. The Court of Appeals issued a surrunary order denying all of Dozier's appellate claims on August 23, 2012. Dozier filed the instant petition on July 18, 2013. Dozier's Petition Is Granted In Part Dozier is a defendant who was convicted prior to the enactment of the FSA but sentenced after the enactment. As such, the Government has conceded that Dozier has made a prima case for ineffective counsel for Count 1. assistance on the part of his facie appellate Dozier' s claim is cognizable on collateral review because he has shown both cause and prejudice. See, e.g., Harrington v. United States, 689 F.3d 125, 129 (2d Cir. 2012) (holding that collateral review of claims not raised on direct appeal is precluded unless petitioner can show "(1) good cause to excuse the default and innocence"). Dozier has should have, but did not, ensuing shown cause in that or ( 2) actual appellate counsel raise the Dorsey issue at some point during the pendency of his appeal. 466 U.S. 668, 688 prejudice, See Strickland v. Washington, (1984). Dozier has also demonstrated prejudice: Had the issue been raised during appeal, the Second Circuit would have remanded the case for resentencing pursuant to Dorsey. 3 See 688 F.3d at 76 (Second Circuit allowed the defendant to Highsmith, supplement opening brief with a FSA-based claim in light of Dorsey). Given the Government's position and the Supreme Court's holding in Dorsey, granting Petitioner's motion is appropriate. See v. United States McGee, 522 F. App'x 59 (2d Cir. 2013) (applying Dorsey and remanding for re-sentencing for conviction of 21 U.S.C. § 841(b)(l)(B)). However, only Count 1 charges the pre- FSA quantity levels of crack cocaine and is altered by the FSA and Dorsey. Accordingly, Dozier's petition is applicable only to the sentence imposed on Count 1. 4 Conclusion Dozier's petition for relief under 28 U.S.C. § 2255 is granted with respect to Count 1 only, and his sentence pursuant to Count 1 is vacated and remanded for resentencing. It is so ordered. New York, NY June 2014 /?, U.S.D.J. 5
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