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Whyte v. United States

United States District Court, M.D. Tennessee, Nashville Division

June 19, 2019

DARRELL WHYTE, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM

          ALETAA. TRAUGER, UNITED STATES DISTRICT JUDGE.

         Movant Darrell Whyte, a prisoner in federal custody, brings this action pursuant to 28 U.S.C. § 2255 to set aside, vacate and correct an allegedly illegal sentence and Judgment imposed by this court in 2016. See United States v. Whyte, No. 3:13-cr-00211 (M.D. Tenn. April 20, 2016) (Judgment, Doc. No. 74); id. (May 3, 2016) (Am. Judgment, Doc. No. 77).[1] For the reasons set forth herein, the court finds that an evidentiary hearing is not required and that the movant is not entitled to relief.

         I. PROCEDURAL BACKGROUND

         In October 2013, Whyte was charged in a two-count Indictment with being a previously convicted felon in possession of a firearm (Count One) and being a previously convicted felon in possession of ammunition (Count Two), both in violation of 18 U.S.C. §§ 922(g)(1) and 924. (Crim. Doc. No. 1.)

         In January 2016, Whyte entered a guilty plea to Count One of the Indictment in accordance with the terms of a Plea Agreement under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure, pursuant to which the parties agreed to a below-guideline sentence of 96 months. (Crim. Doc. Nos. 67, 68.) Of relevance here, Whyte acknowledged in the Plea Agreement that he had prior state court convictions for: (1) vehicular homicide in 1998, for which he received an eight-year sentence; (2) possession of over .5 grams of cocaine with intent to distribute, for which he received an eight-year sentence, concurrent with that for vehicular homicide; (3) in 2003, possession of cocaine with intent to distribute, for which he received a five-year sentence; (4) also in the same 2003 case, two counts of sale of cocaine, for each of which he received four years, concurrent with the five-year sentence for possession with intent; (5) attempted aggravated child endangerment in 2010 (ten-year sentence); (6) evading arrest in 2010 case (two years); and (7) in the same 2010 case, possession of a firearm by a felon (two years). (Crim. Doc. 68 § 8, at 6.) The parties acknowledged that, pursuant to U.S.S.G. § 2K2.1(a)(2), which cross-references the definitions for “crime of violence” and “controlled substance offense” in § 4B1.2(a) and (b), Whyte's base offense level was 24. (Doc. No. 68 § 10(a)(i).)

         In addition, the Plea Agreement included a waiver of the defendant's right to appeal any issue bearing on the determination of guilt or to challenge the agreed-upon sentence of 96 months. (Doc. No. 68 § 20.) He also waived his right to challenge the sentence in any collateral attack under 28 U.S.C. § 2255. (Id.)

         At sentencing, the court expressly accepted the findings of the Presentence Report (“PSR”) as its findings of fact on all issues and on the application of the Sentencing Guidelines. (Sentencing Tr., Crim. Doc. No. 85, at 2.) The PSR specifically referenced only Whyte's previous drug convictions in 1998 and 2003 as the predicate felonies-“controlled substance offenses” under § 4B1.2(b)-upon which the application of U.S.S.G. § 2K2.1(a)(2) was based. (Crim. Doc. No. 79 § 18.) Although the guideline range was 100 to 120 months, the court accepted the parties' agreement and sentenced Whyte to 96 months. (Doc. Nos. 74, 77.) Whyte initially pursued an appeal, but his appeal was dismissed pursuant to his motion for voluntary dismissal. (See Crim. Doc. No. 82.)

         II. THE CURRENT MOTION

         Whyte filed his pro se Motion to Vacate and supporting Memorandum in this court on October 3, 2016. (Doc. Nos. 1, 2.) Because he articulated a claim under Johnson v. United States, 135 S.Ct. 2551 (2015), the court appointed counsel and directed the filing of a supplemental pleading. (Doc. No. 3.) After substantial delay, counsel filed an Amended Motion (Doc. No. 16), and the government filed a Response in opposition (Doc. No. 23). Whyte thereafter submitted two supplemental memoranda and a number of letters addressed to the court. (Doc. Nos. 25-28.)

         In his original Motion, Whyte argued that, in light of the Supreme Court's finding in Johnson that the so-called residual clause of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague, “the identical residual clause” contained in U.S.S.G. § 4B1.2 is also unconstitutionally vague, as a result of which he is entitled to resentencing. (Doc. No. 2, at 2.) Whyte's argument focuses primarily on his claim that his prior convictions for reckless child endangerment and vehicular homicide could only count as violent felonies under the residual clause of § 4B1.2(a)(2). (See Doc. No. 2, at 4-6.) He also asserts that his “minor drug crimes” fail to qualify as controlled substance offenses for purposes of the guideline. (Id. at 6-7.) He does not present any argument in support of the latter claim, but he “reserve[d] the right to brief that issue at length” if the government disputed his position. (Id. at 7.)

         The Amended Motion specifically incorporates by reference the claims raised in the pro se Motion (see Doc. No. 16, at 1 n.1) but focuses on Whyte's prior drug-related convictions. Rather than relying on Johnson per se, Whyte's counsel argues that (1) the Supreme Court's recent decision in Mathis v. United States, 136 S.Ct. 2243 (2016), which he claims was decided while Whyte's criminal case was still pending, [2] dictates a conclusion that neither of the two prior Tennessee drug felonies qualifies as a controlled substance offense; and (2) Whyte's trial counsel was constitutionally ineffective for failing to challenge his client's base offense level during plea and sentencing negotiations, and Whyte was prejudiced by that failure because, “[h]ad [trial counsel] pursued this objection, there is a reasonable probability that Mr. Whyte's sentence would have been reduced considerably.” (Doc. No. 16, at 6.)

         The government contends in response that (1) trial counsel's performance was not deficient, because (a) Mathis has no bearing on this case, as the Sixth Circuit, both before and after Mathis, has held that convictions under Tenn. Code Ann. § 39-17-417, the statute under which Whyte was convicted, categorically qualify as controlled substance offenses under the relevant guideline provisions; and (b) Whyte was not prejudiced by counsel's purported failure to contest the guideline computation in his case; (2) Whyte is not entitled to resentencing on any other grounds, because he waived the ability to challenge his sentence or bring a collateral attack on any other ground than ineffective assistance of counsel; and (3) in any event, the Mathis claim is not cognizable on collateral review. (Doc. No. 23.)

         Counsel did not file a reply brief, but Whyte submitted a letter to the court objecting that his appointed counsel had abandoned the claims he raised in his pro se Motion and arguing that, at his arraignment hearing, the drug charges were never mentioned as the basis for the application of the ACCA. (Doc. No. 26.) He insists that the arguments raised by counsel should never have been argued until and unless his sentence was vacated and he was resentenced. He also refiled his original Memorandum (Doc. No. 27) and submitted another letter in which he insists that, at his arraignment, the government “disavowed reliance on his convictions of ‘controlled substance' offense[s] to form the basis for base level enhancements.” (Doc. No. 28.) Whyte believes that this constituted a waiver by the government of its ability to rely on his prior drug-related convictions to calculate his base offense level under the sentencing guidelines.

         III. STANDARD OF REVIEW

         To be entitled to relief, a prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion, a movant “must demonstrate the existence of an error of constitutional magnitude which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-constitutional errors are generally outside the scope of § 2255 relief. United States v. Cofield, 233 F.3d 405, 407 (6th Cir. 2000). A movant can prevail on a § 2255 motion alleging non-constitutional error only by establishing a “fundamental defect which inherently results in a complete miscarriage of justice, or an error so egregious that it amounts to a violation of due process.” Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation marks and additional citation omitted)).

         A § 2255 motion is not a substitute for a direct appeal. Consequently, as a general rule, any claims not raised on direct appeal are procedurally defaulted and may not be raised on collateral review unless the movant shows “(1) ‘cause' excusing [the] procedural default, and (2) ‘actual prejudice' resulting from the errors, ” United States v. Frady, 456 U.S. 152, 168 (1982) (citations omitted), or demonstrates that he is “actually innocent.” Bousley v. United States, 523 U.S. 614, 622 (1998) (citations omitted). A claim of ineffective assistance of counsel is not subject to the procedural-default rule. Massaro v. United States, 538 U.S. 500, ...


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