Blackmon v. United States

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

          Victor A. Bolden United States District Judge

         Kevin Blackmon (“Petitioner”) filed a successive petition for a writ of habeas corpus, moving to vacate, set aside, or correct his sentence, under 28 U.S.C. § 2255. Successive Motion to Vacate, Set Aside, or Correct Sentence, dated June 26, 2016 (“Pet'r's Mot.”), ECF No. 1; see also Petitioner's Memorandum in Support of Motion, dated Aug. 4, 2017 (“Pet'r's Mem.”), ECF No. 6.

         Having awaited approval from the Second Circuit under 28 U.S.C. § 2244, and then delayed decision because of a stay entered by the Second Circuit, see Mandate Granting Motion to File Successive 28 U.S.C. § 2255 Motion, dated Aug. 10, 2016 (“Mandate”), ECF No. 5, the motion is now ripe for review.

         For the reasons explained below, the Court DENIES Mr. Blackmon's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255 and DISMISSES his petition.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         A. Sentencing

         On June 22, 1992, a federal grand jury returned an indictment against Mr. Blackmon, inter alia, on a charge of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). See Pet'r's Mot; see also Judgment, United States v. Blackmon, dated Aug. 31, 1993, annexed as Ex. 1 to Petition, ECF 1-1.

         On May 18, 1993, after a trial in the United States District Court for the District of Connecticut before United States District Judge Ellen Bree Burns, a jury convicted Mr. Blackmon of one count of conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). See Judgment.

         On August 31, 1993, under the then-mandatory United States Sentencing Guidelines (“Sentencing Guidelines”), Mr. Blackmon received a sentence of 292 months in prison, to be followed by five years of supervised release. Id.

         Judge Burns determined that Mr. Blackmon was a “career offender” under Section 4B1.1 of the Sentencing Guidelines. Pet'r's Mem. at 2; Government's Amended Response to Motion (“Am. Resp.”), dated Aug. 25, 2017, ECF No. 8 at 3. Mr. Blackmon had satisfied all three criteria for a “career offender” under the Sentencing Guidelines because he (1) was over eighteen years old at the time of his offense; (2) was convicted of a “controlled substance offense”; and (3) had two prior convictions for “crimes of violence”: assault in the second degree with a firearm in October 1990, and manslaughter in the first degree in November 1990. See Pet'r's Mem at 1; US. Sentencing Comm'n Guidelines Manual § 4B1.1 (eff Nov. 1, 1992 to Oct. 31, 1993).

         Because of this finding, Mr. Blackmon's criminal history category on the sentencing table increased by two levels, from IV to VI. As a result, Mr. Blackmon's Sentencing Guidelines range increased from 235-293 months to 292-365 months. See U.S. Sentencing Comm'n Guidelines Manual § 5A (eff. Nov. 1, 1992 to Oct. 31, 1993). A sentence of 292 months thus was the lowest possible sentence under the then higher mandatory Guidelines range.

         B. Direct Appeal of Sentence

         Mr. Blackmon appealed his “career offender” sentencing enhancement and argued that the Sentencing Commission did not have the “authority to promulgate Application Note 1.” United States v. Jackson, 60 F.3d 128, 131 (2d Cir. 1995). He argued “that a prior drug conspiracy conviction [could not] be a predicate for career offender status[, ]” but did not dispute that his prior convictions for manslaughter in the first degree and assault in the second degree with a firearm constituted crimes of violence. See Id. at 130-31 (“In this case, Blackmon was over eighteen years of age and had two prior convictions, one for manslaughter and one for assault in the second degree with a firearm. As a result, he satisfied the first and third elements of § 4B1.1, a fact that Blackmon does not contest.”).

         On July 14, 1995, the Second Circuit upheld the Sentencing Commission's authority to issue the career offender provision and affirmed Mr. Blackmon's “enhanced sentence as a career offender.” Id. at 133.

         Mr. Blackmon then filed a petition for a writ of certiorari to the United States Supreme Court, which the Supreme Court denied. Blackmon v. United States, 516 U.S. 1130 (1996).

         C. Previous § 2255 Motion

         On July 3, 1997, Mr. Blackmon filed his first motion to vacate his sentence under 28 U.S.C. § 2255. Pet'r's Mem. at 3, Am. Resp. at 6.

         Later that year, Judge Burns denied that motion.^[1]

         On April 13, 1998, Mr. Blackmon appealed the denial to the United States Court of Appeals for the Second Circuit. See Blackmon v. United States, No. 98-2333 (2d Cir. Apr. 13, 1998) (notice of appeal).

         On February 16, 2000, the Second Circuit denied his motions to proceed in forma pauperis, for appointment of counsel, and for a certificate of appealability. See Blackmon v. United States, No. 98-2333 (2d Cir. Feb. 16, 2000) (order denying motions and dismissing appeal, and finding that “appellant has not made a ‘substantial showing of the denial of a constitutional right.'”) (citing 28 U.S.C. § 2253(c)(2)).

         D. Current § 2255 Motion

         On June 26, 2015, the United States Supreme Court decided Johnson v. United States, 135 S.Ct. 2551 (2015), invalidating the residual clause of the Armed Career Criminal Act, because it failed to give proper notice about the potential for increased sentencing and therefore was unconstitutionally vague. Johnson, 135 S.Ct. at 2551.

         On April 18, 2016, the Supreme Court gave Johnson retroactive effect. Welch v. United States, 136 S.Ct. 1257, 1268 (2016) (“Johnson announced a substantive rule that has retroactive effect in cases on collateral review”).

         On June 26, 2016, Mr. Blackmon, represented by counsel, moved to vacate, set aside, or correct his sentence. Pet'r's Mot. at 1. The motion was assigned to this Court. Mr. Blackmon argued that, under Johnson, an identically worded residual clause2 in the then applicable Sentencing Guidelines' career offender definition is also unconstitutionally vague. Pet'r's Mem. at 4-5. Without that residual clause, he arguably would no longer qualify as a career offender and would therefore be entitled to a resentencing. Id. at 1-2. Because his motion was successive, Mr. Blackmon asked the Court to stay its proceedings until the Second Circuit granted his motion for leave to file a successive § 2255 motion. Pet'r's Mot. at 1; see also 28 U.S.C. § 2244(3) (“Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.”).

         On August 10, 2016, the Second Circuit granted Mr. Blackmon leave to file his successive § 2255 motion, but directed the District Court to stay proceedings until the Supreme Court announced its decision in Beckles v. United States, 137 S.Ct. 886 (2017), which was scheduled for argument before the Supreme Court during the 2016-17 term.[3] See Mandate (“Petitioner moves for leave to file a successive 28 U.S.C. § 2255 motion. He argues that Johnson v. United States, 135 S.Ct 2551 (2015), has invalidated a certain provision of the United States Sentencing Guidelines, entitling him to a sentence reduction. Upon due consideration, it is hereby ORDERED that the motion is GRANTED.”).

         On March 6, 2017, the Supreme Court decided Beckles, holding that the residual clause of the advisory Sentencing Guidelines was not unconstitutionally vague because, unlike the mandatory minimum sentences in the ACCA, “the Guidelines advise sentencing courts on how to exercise their discretion within the bounds established by Congress [and t]he court relied on the career-offender Guideline merely for advice in exercising its discretion to choose a sentence within those statutory limits.” Beckles, 137 S.Ct. at 895. Therefore, “the advisory Sentencing Guidelines are not subject to a vagueness challenge under the Due Process Clause and . . . § 4B1.2(a)'s residual clause is not void for vagueness.”^[4] Id.

         On August 4, 2017, Mr. Blackmon filed a memorandum of law in support of his motion, arguing that: (1) his prior convictions did not qualify as “crimes of violence, ” invalidating the career offender enhancement of his sentence; and (2) because he was sentenced before Booker made the Guidelines advisory and not mandatory, the residual clause was still liable to a vagueness challenge. Pet'r's Mem. at 10-14.

         On August 25, 2017, the Government responded to Mr. Blackmon's motion, arguing that “[t]he mandatory guidelines are not subject to vagueness challenge under Beckles.” Am. Resp. at 22. The Government argued, inter alia, that while the Supreme Court struck down the ACCA's residual clause, it did not strike down the Guidelines' residual clause, making Mr. Blackmon's petition premature to any substantive rule or “watershed rule of criminal procedure.” Id. at 16, 21. The Government also argued that “Blackmon failed to satisfy the requirements on successive petitions in § 2255(h)(2)” and that he procedurally defaulted his vagueness challenge by failing to raise it at sentencing or on direct appeal. Id. at 12, 21. The Government also noted that it was seeking to obtain copies of the state court judgments of conviction so as to establish whether Mr. Blackmon was convicted of manslaughter in the first degree, Conn. Gen. Stat. § 53a-55, or manslaughter in the first degree with a firearm, Conn. Gen. Stat. § 53a-55a. Id. at 23 n.7 (“Blackmon's criminal records check (a relevant portion of which is appended hereto as Exhibit 1) would appear to reflect that he was convicted of manslaughter with a firearm in violation of 53a-55a . . . . While the Court may not rely on a rap sheet to establish the crime of conviction for these purposes, the Government is seeking to obtain the judgments or mittimus.”) (citing State Police Record Check, dated Aug. 17, 2017, annexed as Ex. 1 to Am. Resp.).

         On September 8, 2017, filed a supplemental response to Mr. Blackmon's motion under seal. Government's Supplemental Response to Mot., dated Sept. 8, 2017 (“Supp. Resp.”), ECF No. 9. The Government submitted as exhibits in further support of its opposition to the petition two judgments mittimus^[5] from the Connecticut Superior Court for Mr. Blackmon's 1992 convictions for manslaughter in the first degree and assault in the second degree with a firearm. See Judgment Mittimus, No. CR6-335376 JD (Conn. Super. Ct. Apr. 16, 1992), annexed to Supp. Resp., ECF No. 9-1, at 1 (hereafter, the “Manslaughter Judgment”); Judgment Mittimus, No. CR6-333362 JD, (Conn. Super. Ct. Apr. 16, 1992), annexed to Supp. Resp., ECF No. 9-1, at 2 (hereafter, the “Assault Judgment”). These documents, the Government explained, were obtained as part of its review of Mr. Blackmon's file from the Connecticut Department of Corrections. Supp. Resp. at 2.

         On September 11, 2017, the Government moved for the judgments submitted as exhibits on September 8, 2017 to remain under seal until further order of the Court as they contained “confidential personal identifying information relating to the Petitioner.” Government's Sealed Motion to Seal, dated Sept. 11, 2017, ECF No. 10.

         On November 2, 2017, Blackmon was released from a halfway house and began serving his five-year term of supervised release. See Fed. Bureau of Prisons, Inmate Locator Service, https://www.bop.gov/inmateloc/ (last visited Aug. 8, 2019); Am. Resp. at 4 n.1; see also U.S. Probation Petition for Action Request for Compliance Review Hearing, No. 92-cr-39-3, filed Nov. 1, 2018, ECF No. 286, at “Date Supervision Commenced.”

         On January 23, 2018, the Court granted the Government's motion to seal.^[6] Order, dated Jan. 23, 2018, ECF No. 11.

         II. STANDARD OF REVIEW

         A federal prisoner may challenge his or her sentence under 28 U.S.C. § 2255 “where the sentence (1) was imposed in violation of the U.S. Constitution or the laws of the United States; or (2) was entered by a court without jurisdiction to impose the sentence; or (3) exceeded the maximum detention authorized by law; or (4) is otherwise subject to collateral attack.” Adams v. United States, 372 F.3d 132, 134 (2d Cir. 2004).

         In § 2255 proceedings, petitioners bear the burden of proving, by a preponderance of the evidence, that they are entitled to relief. See Triana v. United States, 205 F.3d 36, 40 (2d Cir. 2000) (citing Harned v. Henderson, 588 F.2d 12, 22 (2d Cir. 1978) (“It is, of course, well settled that in federal habeas corpus proceedings the burden of proving a constitutional claim lies with the petitioner and that the nature of that burden is the customary civil one of a preponderance of the evidence.”) (collecting cases)).

         Review on a § 2255 motion should be “narrowly limited.” Graziano v. United States, 83 F.3d 587, 590 (2d Cir. 1996) (citing United States v. Bokun, 73 F.3d 8, 12 (2d Cir. 1995)). “Because collateral challenges are in tension with society's strong interest in the finality of criminal convictions, the courts have established rules that make it more difficult for a defendant to upset a conviction by collateral, as opposed to direct, attack.” Yick Man Mui v. United States, 614 F.3d 50, 53 (2d Cir. 2010) (internal quotation marks omitted). To prevail on a collateral attack, a defendant must show “constitutional error, a lack of jurisdiction in the sentencing court, or an error of law or fact that constitutes a fundamental defect which inherently results in a complete miscarriage of justice.” Cuoco v. United States, 208 F.3d 27, 30 (2d Cir. 2000) (quoting Bokun, 73 F.3d at 12).

         III. DISCUSSION

         A. Threshold Issues

         1. Mootness

         Courts “have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party.” Arbaugh v. Y & H Corp., 546 U.S. 500, 501 (2006); see also Oneida Indian Nation of Wis. v. State of N.Y., 732 F.2d 259, 261 (2d Cir. 1984) (a court has “jurisdiction to consider its own jurisdiction”).

         “It is a basic principle of Article III that a justiciable case or controversy must remain extant at all stages of review, not merely at the time the complaint is filed.” United States v. Juvenile Male,564 U.S. 932, 936 (2011) (citations and internal quotation marks omitted). “Throughout the litigation, the party seeking relief must have suffered, or be threatened with, an actual injury traceable to the defendant ...