United States District Court, D. New Jersey
Mr. Jermaine Dawkins, U.S.P. McCreary, Pine Knot, KY. Petitioner, pro se.
Jane H. Yoon, Assistant U.S. Attorney, OFFICE OF THE U.S. ATTORNEY, Newark NJ, Attorney for Respondent.
JEROME B. SIMANDLE, Chief District Judge.
Petitioner Jermaine Dawkins brings this petition to vacate and correct his sentence pursuant to 28 U.S.C. § 2255. [Docket Items 1 & 14.] Petitioner pleaded guilty to one count of bank robbery under 18 U.S.C. § 2113(a) and, on January 14, 2011, was sentenced to 151 months imprisonment, because he qualified as a career offender. Petitioner now moves for the Court to vacate and correct his sentence on three grounds: (1) the Court improperly added a two-point enhancement to his sentence under § 3C1.2 of the U.S. Sentencing Commission Guidelines Manual ("U.S.S.G." or "the Guidelines"); (2) the Court improperly classified Petitioner as a career offender; and (3) he was deprived of the effective assistance of counsel in violation of the Sixth Amendment to the U.S. Constitution. For the reasons explained below, the Court will deny the Petition.
On June 4, 2009, Petitioner completed a federal prison sentence for two counts of bank robbery and began a term of supervised release. Two days later, he robbed a Mutual Bank in Edison, N.J., and, three days after that, robbed a Skylands Community Bank in Metuchen, N.J.
By the Government's count, these robberies were the tenth and eleventh for which Petitioner had been arrested and charged. (Resp't Opp'n [Docket Item 16] at 1.) On August 4, 1998, Petitioner was convicted of attempted robbery in Suffolk County Criminal Court in New York, and initially sentenced to 6 to 12 years imprisonment. (Presentence Investigation Report ("PSR"), United States v. Dawkins, No. 09-cr-582-JBS-1 (D.N.J. Oct. 6, 2010) ¶ 64.) He was convicted in the same court of robbery in sentenced to 150 months to 25 years imprisonment. Petitioner successfully appealed his convictions, only to enter a guilty plea for both crimes, for which he was resentenced to 6 to 12 years imprisonment on March 22, 2002. (PSR ¶¶ 61, 64, 67.) He was convicted in Nassau County Criminal Court in New York on January 5, 1999, of robbery and displaying a firearm, and sentenced to 4 to 8 years imprisonment, to run concurrently with the Suffolk County sentences. (PSR ¶ 68.) There is no indication that this sentence was ever vacated or amended or that it was incorporated in the resentencing on March 22, 2002.
On December 1, 2001, Petitioner was convicted on two counts of bank robbery in the U.S. District Court for the Southern District of New York, based on two separate bank robberies committed on June 27, 1996, and August 7, 1996. (PSR ¶¶ 75-77.) For the purposes of sentencing, the district court judge considered Petitioner's state-court robbery convictions to be "part of a single common scheme or plan." (Reply [Docket Item 25] at 7 ¶¶ 2-4.) Petitioner was sentenced to 71 months imprisonment, with 14 months running concurrently with Petitioner's unexpired state sentences. (PSR ¶ 75.)
When Petitioner's federal prison term ended, in June 2009, he robbed the two New Jersey banks described above, and, on July 13, 2010, pleaded guilty to one count of bank robbery. (See Judgment, United States v. Dawkins, No. 09-cr-582-JBS-01 (D.N.J. Jan. 18, 2011) [Docket Item 19].)
At sentencing, and in a pre-sentencing letter to this Court, Petitioner's counsel, Assistant Federal Public Defender Maggie Moy, Esq., objected to a two-level enhancement under § 3C1.2 for reckless endangerment. (Tr. (Resp't Opp'n Ex. 1) at 3:13-8:25; Resp't Opp'n Ex. A (letter arguing that an enhancement under § 3C1.2 is improper).) The Court overruled the objection, noting that Petitioner had refused to pull over as directed by police and continued driving for three miles during rush hour, until stopped by a traffic jam, and police had to break the windows of his vehicle to apprehend him. (Tr. at 6:1-8:25.) Ms. Moy also objected to the calculation of criminal history points, and the Court eliminated three points from Paragraph 64 of the PSR and one point from Paragraph 83. (Tr. at 9:1-17, 10:3-14.) However, because the Court found that Petitioner qualified as a career offender, the recommended Guideline range was 151 months to 181 months. (Tr. at 11:6-9.)
Ms. Moy also argued on Petitioner's behalf that he was not a "typical" career offender, because "there were never any intervening arrests and there was one period of incarceration." (Tr. at 14:12-15:25.) Ms. Moy advocated for a shorter sentence because of Petitioner's "mental health issues." (Tr. at 16:3-13, 16:17-21, 22:4-25.) The Court considered these arguments and the factors enumerated in 18 U.S.C. § 3553(a), and arrived at the sentence of 151 months, at the bottom end of the recommended range. (Tr. at 39:15-46:13.)
Petitioner appealed his sentence to the Third Circuit. A three-judge panel affirmed the sentence, rejecting Petitioner's arguments that the Court (1) erred in applying a two-point enhancement under § 3C1.2, (2) erred in calculating his criminal history score, (3) should have used the 1997 sentencing Guidelines, and (4) erred in classifying him as a career offender. See United States v. Dawkins, 463 F.Appx. 93, 99 (3d Cir. 2012). The Third Circuit also addressed Petitioner's ineffective assistance of counsel argument, observing that such claims generally are not considered on direct appeal. The court nevertheless stated that "Dawkins cannot show that his counsel's performance was in any way deficient, because we find no meritorious issues that counsel could have or should have raised through objections or otherwise." Id . at 96 n.2. The Third Circuit concluded that "the sentence was substantively reasonable." Id . at 99. Rehearing en banc was denied on April 23, 2012. Petitioner timely signed and mailed the present
III. STANDARD OF REVIEW
Under 28 U.S.C. § 2255(a), a federal prisoner may move to vacate, set aside or correct a sentence on the ground that the sentence was imposed in violation of the Constitution or federal law, the sentencing court was without jurisdiction, or the sentence is in excess of the maximum authorized by law or is otherwise subject to collateral attack. The district court shall grant a hearing to determine the issues and make findings of fact and conclusions of law. 28 U.S.C. § 2255(b). However, if the motion, files and records of the case conclusively show that the prisoner is not entitled to relief, the petition will be denied. § 2255(b); see also United States v. McCoy, 410 F.3d 124, 131-32 (3d Cir. 2005) (holding a district court must grant an evidentiary hearing unless the record before it conclusively showed the petitioner was not entitled to relief). A hearing need not be held if the petition raises no legally cognizable claim, or if the factual matters raised by the petition may be resolved through the district court's review of the motions and the records in ...