Pittro v. USA, No. 4:2016cv00105 - Document 11 (E.D. Tenn. 2020)
Court Description: MEMORANDUM AND OPINION. For the reasons stated herein, Petitioner has failed to establish any basis upon which § 2255 relief could be granted, and his § 2255 motions (Doc. 1 & Doc. 6) will be DENIED. A certificate of appealability from the denial of his § 2255 motion will be DENIED. A separate judgment will enter. Signed by District Judge Harry S Mattice, Jr on 1/21/2020. (BDG)Opinion mailed to Pittro.
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Pittro v. USA Doc. 11 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT WINCHESTER FRANK J . PITTRO, J R., Petitioner, v. UNITED STATES OF AMERICA, Respondent. ) ) ) ) ) ) ) ) ) No. 4:16-cv-10 5 J udge Mattice Magistrate J udge Lee MEMORAN D U M OPIN ION Federal inm ate Frank Pittro, J r., filed a m otion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 on Novem ber 8, 20 16, challenging his enhanced sentence under the Arm ed Career Crim inal Act (the “ACCA”). (Doc. 1). He filed a supplem ent (Doc. 3) to his m otion on J une 18, 20 18, and a secon d Motion to Vacate (Doc. 6) on Novem ber 6, 20 19. As ordered, the United States responded to Petitioner’s original Motion (Doc. 8), and Petitioner filed a reply on Decem ber 19, 20 19 (Doc. 10 ). Having considered the pleadings and the record, along with the relevant law, the Court finds there is no need for an evidentiary hearing 1 and Pittro’s § 2255 m otions will be D EN IED . I. BACKGROU N D FACTS AN D PROCED U RAL H ISTORY On J anuary 28, 20 14, a grand jury indicted Petitioner on two counts of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (Crim . Doc. 1). Pittro pleaded 1 An evidentiary hearing is required on a § 2255 m otion unless the m otion, files, and record conclusively show that the prison er is not entitled to relief. See 28 U.S.C. § 2255(b). It is the prisoner’s ultim ate burden, however, to sustain his claim s by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964 (6th Cir. 20 0 6). Accordingly, where “the record conclusively shows that the petition er is entitled to no relief,” a hearing is not required. Arredondo v . United States, 178 F.3d 778, 782 (6th Cir. 1999) (citation om itted). Dockets.Justia.com guilty to both counts of the indictm ent. (Crim . Doc. 18). In the Presentence Investigation Report, the United States Probation Office identified Pittro as an arm ed career crim in al subject to an enhanced sentence under the provision s of 18 U.S.C. § 924(e). This classification was assigned based on four predicate offenses: aggravated assault, two convictions for aggravated assault with an intent to com m it m urder, and second-degree m urder. (Crim . Doc. 21 at ¶¶ 31, 32, 33 and 35). The ACCA im poses a m andatory m inim um sentence of 15 years for any felon convicted of unlawfully possessing a firearm who has “three previous convictions… for a violent felony or serious drug offense, or both.” 18 U.S.C. § 924(e)(1). The ACCA defines a “violent felony” as a crim e punishable by m ore than one year of im prisonm ent, that: (i) has as an elem ent the use, attem pted use, or threatened use of physical force against the person of another (the “use of force clause”); (ii) is burglary, arson, or extortion, or involves use of explosives, (the “enum erated offense clause”); or (iii) otherwise involves conduct that presents a serious risk of physical injury to another (the “residual clause”). See 18 U.S.C. § 924(e). Pittro objected to the presenten ce investigation report, arguing none of his convictions were predicate offenses under the ACCA. (Crim . Doc. 25 & 29). The Governm ent argued that all four prior convictions were predicate offenses, either under the ACCA’s use of force clause or the residual clause. (Crim . Doc. 31). The Court overruled Petitioner’s objections to the presentence investigation report and found the aggravated assault and assault with intent to com m it m urder convictions each constitute a predicate offense under the use of force clause of the ACCA. (Crim . Doc. 44 at 34, 39 & 59). The Court further found the second-degree m urder conviction was a predicate offense under 2 the ACCA’s residual clause. (Id. at 76). Based on his arm ed career crim inal status, the Court sentenced Petitioner to 180 m onths im prisonm ent. (Crim . Doc. 40 ). Pittro appealed, challenging the Court’s finding that his prior convictions were predicate offenses under the ACCA. (Crim . Doc. 42; Crim . Doc. 45 at 1). On April 29, 20 16, the United States Court of Appeals for the Sixth Circuit affirm ed Pittro’s conviction and sentence. The court held: Defendant's prior convictions for aggravated assault and assault with intent to com m it m urder required a threat “to do violence.” A threat “to do violence” necessarily involves “threatened use of physical force against the person of another.” Therefore, Defendant's prior convictions for aggravated assault and assault with intent to com m it m urder qualify as violent felonies under the ACCA's “use-of-physical-force” clause. United States v. Pittro, 646 F. App'x 481, 48 5 (6th Cir. 20 16). Having found Pittro was convicted of three predicate offenses under the use of force clause, the Sixth Circuit did not reach the issue of whether his conviction for second degree m urder was also a predicate offense. Id. at 483 n.2. Petitioner did not file a petition for certiorari and his conviction therefore becam e final on J uly 28, 20 16. See U.S. Sup. Ct. R. 13.1. Petitioner tim ely filed a Motion to Vacate (Crim . Doc. 47; Doc. 1) on Novem ber 8, 20 16, followed by a supplem ent to the m otion (Doc. 3), and, on Novem ber 6, 20 19, a second Motion to Vacate (Doc. 6). II. LEGAL STAN D ARD After a defendant has been convicted and exhausted his appeal rights, a court m ay presum e that “he stands fairly and finally convicted.” United States v. Frady , 456 U.S. 152, 164 (1982). A court m ay grant relief under 28 U.S.C. § 2255, but the statute “does not encom pass all claim ed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). Rather, collateral attack lim its a m ovant’s allegations to those 3 of constitutional or jurisdictional m agnitude, or those containing factual or legal errors “so fundam ental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 68 6, 691 (6th Cir. 20 0 6) (citation om itted); see also 28 U.S.C. § 2255(a). III. AN ALYSIS Pittro now challenges his conviction and sentence on three grounds. First, he contends the Court was confused at the sentencing hearing and con sequently erred when it held that Petitioner’s aggravated assault conviction was a violent felony. He cites selectively to a portion of the sentencing hearing transcript in which the Court was discussing the evolving state of the law surrounding the ACCA at the tim e. (Doc. 1 at 2; Crim . Doc. 44 at 52-53). Second, Petitioner claim s the Assistant United States Attorney com m itted fraud on the Court and/ or m isled the Court when he attem pted to distinguish authority cited by defense counsel. The Governm ent’s counsel incorrectly stated that the United States Senten cing Guidelines do not include a use of force clause in § 2L1.2, an error im m ediately poin ted out by defense counsel. (Doc. 44 at 46-47). This m isstatem ent, Petitioner contends, convinced the Court not to rely on United States v. Rede-Mendez, 68 0 F.3d 552 (6th Cir. 20 12), which Petitioner believes is dispositive here. (Doc. 1 at 3). Finally, Petitioner con tends his trial counsel was ineffective for failing to point out the prosecutor’s m isstatem ents and failing to aggressively argue that Rede-Mendez was binding precedent. (Doc. 1 at 4-5). In fact, the transcript dem onstrates his counsel im m ediately corrected the Governm ent’s error and discussed Rede-Mendez at length. (Doc. 44 at 43-47) The decision of the United States Court of Appeals for the Sixth Circuit in Pittro’s appeal is fatal to his claim s on collateral review. All three challenges to his sentence are based on the argum ent that if som ething had not gone wrong, the Court would have ruled 4 that his prior convictions were not predicate offenses under the ACCA. But the Sixth Circuit has since held that his prior convictions w ere predicate offenses under the ACCA. See Goldberg v. Maloney , 692 F.3d 534 (6th Cir. 20 12) (“Once an appellate court decides upon a rule of law, that decision should contin ue to govern the sam e issues in subsequent stages in the sam e case.” (citation and quotation om itted)) The court exam ined the statutes he was convicted under as they existed at the tim e, nam ely Fla. Stat. § 784.0 4 an d Fla. Stat. § 784.0 6. Pittro, 646 F. App’x at 48 3-85. The court found these crim es necessarily involve the use, attem pted use, or threat of physical force, and therefore constitute violent felonies under the ACCA’s use of force clause. Id. at 485. The Sixth Circuit’s holding forecloses any argum ent that Petitioner’s prior convictions were not predicate offenses subjecting him to a m andatory m inim um sentence under 18 U.S.C. § 924(e). The court’s earlier ruling in Rede-Mendez is distinguishable, as it dealt with aggravated assault under New Mexico law. See RedeMendez, 680 F.3d at 557 (“New Mexico’s definition of aggravated assault is also broader than the generic version because the underlying assault can be com m itted solely by using insulting language.”). In contrast, the Sixth Circuit held that under Florida law, “assault always involves the threat of physical force.” Pittro, 646 F.3d at 485. Assum ing, counterfactually, that the Court was confused, the Governm ent m islead the Court, and defense counsel failed to vigorously push the applicability of Rede-Mendez, Pittro’s m otion would still fail because the Sixth Circuit conclusively determ ined that his prior convictions categorically qualify as violent felonies. Likewise, Petitioner cannot satisfy the standard for an ineffective assistan ce of counsel claim because he cannot dem onstrate that he was prejudiced by a deficiency in the perform ance of his trial counsel. See Strickland v. W ashington, 466 U.S. 668, 68 75 8 8 , 694 (1984); Huff v. United States, 734 F.3d 60 0 , 60 6 (6th Cir. 20 13) (applying Strickland test to § 2255 claim s). In other words, he cannot show that there is a reasonable probability that but for counsel’s alleged acts or om issions, the results of the proceedings would have been different. Id. Petitioner was properly classified as an arm ed career crim inal, and any purported failure of his counsel to object to that classification would have been, an d indeed was, unsuccessful. Finally, Petitioner’s second Motion to Vacate (Doc. 6) is denied as untim ely. Petitioner’s conviction becam e final on J uly 28, 20 16, 90 days after the Sixth Circuit affirm ed his conviction and sentence. To the extent Petitioner argues that a new rule applies to his case that has been m ade retroactively applicable on collateral review, the Court disagrees. The cases Petitioner cites relate prim arily to the constitutionality of residual clauses in various federal statutes. See, e.g., United States v. Davis, 139 S. Ct. 2319 (20 19) (residual clause of 18 U.S.C. § 924(c)(3)(B) unconstitutionally vague); Sessions v. Dim ay a, 138 S. Ct. 120 4 (20 18) (residual clause of 18 U.S.C. § 16 unconstitutionally vague); Johnson v. United States, 135 S. Ct. 2551 (20 15) (residual clause of the ACCA unconstitutionally vague). Again, the Sixth Circuit affirm ed his sentence based on the finding that he had three predicate offenses under the use of force clause, not the residual clause. Other authority cited by Petitioner relates to the procedure courts m ust follow in determ ining whether crim es defined by state law constitute violent felonies within the m eaning of the ACCA. See Mathis v. United States, 136 S. Ct 2243 (20 16) (where elem ents of a state law are broader than generic enum erated offense, conviction cannot give rise to ACCA sentence); Descam ps v. United States, 570 U.S. 254 (20 13) (courts cannot use a m odified categorical approach to sentencing under the ACCA 6 when the crim e has a single, indivisible set of elem ents). Finally, Petitioner cites Johnson v. United States, 130 S. Ct. 1265 (20 10 ), regarding a battery conviction under Florida law. None of these cases extend the tim e within which Petitioner was required to bring his § 2255 m otion. Accordingly, his petition was required to be filed by J uly 28, 20 17, and his second m otion (Doc. 6) is over two years late. See U.S. Sup. Ct. R. 13.1; 28 U.S.C. § 2255(f); Clay v. United States, 537 U.S. 522, 525 (20 0 3) (“For the purpose of starting the clock on § 2255’s one-year lim itation period, we hold, a judgm ent of conviction becom es final when the tim e expires for filing a petition for certiorari contesting the appellate court’s affirm ation of the conviction.”). United States v. Pittro is still good law, Petitioner’s cases do not alter its application here, and his second m otion to vacate (Doc. 6) will be denied as untim ely. IV. CERTIFICATE OF APPEALABILITY When considering a § 2255 m otion, this Court m ust “issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11 of the Rules Governing Section 2255 Proceedings for the United States District Courts. Petitioner m ust obtain a COA before he m ay appeal the denial of his § 2255 m otion. 28 U.S.C. § 2253(c)(1)(B). A COA will issue “only if the applicant has m ade a substantial showing of the denial of a con stitutional right.” 28 U.S.C. § 2253(c)(2). For cases rejected on their m erits, a m ovant “m ust dem onstrate that reasonable jurists would find the district court’s assessm ent of the constitutional claim s debatable or wrong” to warrant a COA. Slack v. McDaniel, 529 U.S. 473, 484 (20 0 0 ). To obtain a COA on a claim that has been rejected on procedural grounds, a m ovant m ust dem onstrate “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in 7 its procedural ruling.” Id. Based on the Slack criteria, the Court finds that a COA should not issue in this cause. V. CON CLU SION For the reasons stated herein, Petitioner has failed to establish an y basis upon which § 2255 relief could be granted, and his § 2255 m otions (Doc. 1 & Doc. 6) will be D EN IED . A certificate of appealability from the denial of his § 2255 m otion will be D EN IED . A separate judgm ent will enter. SO ORD ERED this the 21st day of J anuary, 20 20 . _ _ / s/ Harry S. Mattice, Jr._ _ _ _ _ HARRY S. MATTICE, J R. UNITED STATES DISTRICT J UDGE 8
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