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Hansberry v. United States

United States District Court, D. Connecticut

August 14, 2018

RAHEEM HANSBERRY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          RULING ON PETITION TO VACATE, SET ASIDE, OR CORRECT SENTENCE

          Stefan R. Underhill United States District Judge.

         Raheem Hansberry, a prisoner currently incarcerated at the Federal Correctional Institution Berlin, has moved to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Hansberry argues that, at sentencing, I erroneously classified him as a career offender under U.S.S.G. § 4B1.1, and that his prior convictions for violation of New York Penal Law (“NYPL”) § 220.31 do not count as prerequisites for the career-offender guideline. Hansberry asserts that his counsel was constitutionally ineffective by failing to prevent his misclassification as a career offender. The government makes several arguments in response, among them that any error was harmless because I expressly declined to rely upon the career offender enhancement when sentencing Hansberry. I agree that I imposed Hansberry's sentence without regard to his status as a career offender. Therefore, any error in classifying him as a career offender was harmless, and I deny Hansberry's habeas petition.

         I. Standard of Review

         Section 2255 provides a prisoner in federal custody an opportunity to challenge the legality of his or her sentence. To obtain relief under section 2255, the petitioner must show that his or her prior sentence was invalid because the sentence: (1) was “imposed in violation of the Constitution or laws of the United States”; (2) was imposed “without jurisdiction” by the sentencing court; (3) was “in excess of the maximum authorized by law”; or (4) is “otherwise subject to collateral attack.” 28 U.S.C. § 2255(a). The standard is a high one; even constitutional errors will not be redressed through a section 2255 petition unless they have had a “substantial and injurious effect” that results in “actual prejudice” to the petitioner. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (internal citations omitted); Underwood v. United States, 166 F.3d 84, 87 (2d Cir. 1999) (applying Brecht's harmless error standard to section 2255 petition).

         A section 2255 petition “may not be employed to relitigate questions which were raised and considered on direct appeal.” Cabrera v. United States, 972 F.2d 23, 25 (2d Cir. 1992); see also Reese v. United States, 329 Fed.Appx. 324, 326 (2d Cir. 2009) (quoting United States v. Sanin, 252 F.3d 79, 83 (2d Cir. 2001)). That limitation prohibits relitigation of issues that were expressly or impliedly decided on direct appeal. United States v. Ben Zvi, 242 F.3d 89, 95 (2d Cir. 2001). A court may only reconsider an earlier decision if it is “confronted with ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.'” United States v. Becker, 502 F.3d 122, 127 (2d Cir. 2007) (quoting United States v. Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)).

         Furthermore, a section 2255 petition is “not a substitute for direct appeal.” Harrington v. United States, 689 F.3d 124, 129 (2d Cir. 2012) (citing Zhang v. United States, 506 F.3d 162, 166 (2d Cir. 2007)). A court will not review claims that the petitioner failed to properly raise on direct review “unless the petitioner shows (1) good cause to excuse the default and ensuing prejudice, or (2) actual innocence . . . .” Id. (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). In the context of a habeas petition, “‘actual innocence' means factual innocence, not mere legal insufficiency.” Bousley, 523 U.S. at 623.

         The petitioner bears the burden of proving, by a preponderance of the evidence, that he is entitled to relief. See Napoli v. United States, 45 F.3d 680, 683 (2d Cir. 1995). A district court is not required to accept the petitioner's factual assertions as credible “where the assertions are contradicted by the record in the underlying proceeding.” Puglisi v. United States, 586 F.3d 209, 214 (2009). Section 2255 also requires that the district court hold a hearing on the petitioner's motion unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” Chang v. United States, 250 F.3d 79, 85 (2d Cir. 2001). But “although a hearing may be warranted, that conclusion does not imply that a movant must always be allowed to appear in a district court for a full hearing if the record does not conclusively and expressly belie his claim.” Id. (citing Machibroda v. United States, 368 U.S. 487, 495 (1962)). “If it plainly appears from the [petition], any attached exhibits, and the record of prior proceedings that the [petitioner] is not entitled to relief, the judge must dismiss the [petition].” Puglisi, 586 F.3d at 213.

         II. Background

         A. Conviction and sentencing

         On January 25, 2011, Raheem Hansberry was indicted for possession with intent to distribute ten grams or more of phencyclidine (“PCP”), in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B)(iv) (Count One); possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A)(i) & 924(c)(2) (Count Two); and possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) & 924(a)(2) (Count Three). Indictment, Doc. No. 1, at 1-2, United States v. Hansberry, No. 3:11-cr-00017 (SRU) (D. Conn.).[1] On October 3, 2011, Hansberry pleaded guilty to Counts One and Three of the indictment pursuant to a written plea agreement.[2] Cr. Doc. No. 26; see Cr. Doc. No. 55. He appeared before me for sentencing on July 3, 2012.

         The chief issue at sentencing was whether Hansberry ought to be classified as a career offender under U.S.S.G. § 4B1.1(b) based on his prior convictions. Treatment as a career offender sharply increased Hansberry's Guidelines range. With the career offender enhancement, after a two-level reduction for acceptance of responsibility, Hansberry was subject to an offense level of 32, a criminal history of six, and a Guidelines range of 210 to 262 months of imprisonment. Without the enhancement, after a two-level increase for the presence of a firearm and a two-level reduction for acceptance of responsibility, Hansberry would have been subject to an offense level of 26, a criminal history of six, and a Guidelines range of 120 to 150 months of imprisonment. Thus, the enhancement dramatically affected Hansberry's advisory range under the Sentencing Guidelines.

         The Presentence Report indicated-in agreement with the government-that Hansberry was properly classified as a career offender because he had at least two previous convictions for a violent felony or serious drug offense, including convictions for assault in the second degree and criminal sale of a controlled substance. See Cr. Doc. 31, at 6-7. Hansberry argued that he should not be considered a career offender. Although he conceded that his 2005 conviction for criminal sale of a controlled substance (in violation of NYPL § 220.31) counted toward career offender status, he contested the applicability of two other convictions on which the government relied: a 1999 conviction for attempted criminal sale of a controlled substance (in violation of NYPL § 220.31) and a 2005 conviction for attempted assault in the second degree (in violation of NYPL § 120.05). See Cr. Doc. 51, at 3. Because the 1999 section 220.31 conviction had not required the state to show that the substance was covered by the Controlled Substances Act, and the 2005 section 120.05 conviction was not listed in the plea agreement as a possible predicate offense, Hansberry argued that neither should count toward career offender status. See Id. Accordingly, Hansberry asserted, he only had one predicate conviction and did not qualify as a career offender. See Id. at 10.

         After considering the parties' submissions and hearing argument, I concluded that Hansberry ought to be classified as a career offender under the Guidelines. As the parties agreed, Hansberry's 2005 conviction for criminal sale of a controlled substance counted toward career offender status. See Sentencing Hr'g Tr., Doc. No. 19-1, at 9-10. In addition to that conviction, I held that Hansberry's 2005 conviction for attempted assault in the second degree also counted toward classification as a career offender. Even though the latter conviction was not listed in the plea agreement, I reasoned that the omission “d[id]n't matter . . . because that's between the parties, ” and I was obligated to “look at all the convictions, whether they [were] listed in the plea agreement or not.” Id. at 10. The 2005 conviction for attempted assault in the second degree was listed in the Presentence Report, and the parties had an opportunity to brief and argue whether that conviction's omission from the plea agreement meant that counting it toward career offender status would violate due process. Hence, I held that there was no due process violation and that the career offender enhancement applied.

         Nevertheless, I chose not to rely on Hansberry's enhanced Guidelines range. As I stated in the judgment, “Hansberry's criminal history [was] long, but not deep; it consist[ed] of a number of minor offenses . . . for which Hansberry generally received light sentences.” Judgment, Doc. No. 19-2, at 1. The longest sentence imposed on Hansberry up to that point had been two-and-a-half to five years of imprisonment. Relative to Hansberry's earlier terms of incarceration, “the punishment called for by the career offender guidelines”-around 20 years- was “a dramatic increase over anything [he had] ever served before.” Sentencing Hr'g Tr., Doc. No. 19-1, at 22. Moreover, “treatment as a career offender significantly overstate[d] the seriousness of both [Hansberry's] criminal history and his conduct in th[e] case.” Judgment, Doc. No. 19-2, at 1. Because I sensed that “the sentence called for by the career guidelines [was] just too high in light of the prior sentences [he had] served, ” I elected to “tak[e] ...


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