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Weatherly v. United States

United States District Court, D. New Jersey

July 8, 2019

THOMAS WEATHERLY, Petitioner,
v.
UNITED STATES OF AMERICA. Respondent.

          OPINION

          ANNE E. THOMPSON U.S. DISTRICT JUDGE

         I. INTRODUCTION

         This matter comes before the Court on Petitioner Thomas Weatherly's (hereinafter, "Petitioner") motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Docket Entry ("D.E.") 1). Petitioner filed his original pro se § 2255 motion on May 26, 2016. (Id.). On Petitioner's behalf, the federal public defender filed a § 2255 motion contending that Petitioner's sentence violates due process. Specifically, the § 2255 motion argues that, following the decision in Samuel Johnson v. United States, 13 5 S.Ct. 2551 (2015) ("Samuel Johnson"), Petitioner no longer qualifies as an armed career criminal. (D.E. 4 at 1-2). Respondent United States of America ("Respondent") filed an answer (D.E. 10) and corrected answer (D.E. 14), to which Petitioner filed a reply on January 1, 2017. (D.E. 15). Respondent also submitted a letter regarding supplemental authority from the Third Circuit after Petitioner's § 2255 motion was fully briefed. (D.E. 16).

         Based on the parties' written submissions and the Court's review of the record, and for the reasons stated herein, the Court denies Petitioner's motion to vacate his sentence. No. certificate of appealability will issue.

         II. BACKGROUND

         A. Federal Offense And Sentencing History

         August 31, 2005, Trenton police found Petitioner inebriated in an alleyway with a loaded semi-automatic pistol tucked in his pants. (United States v. Weatherly, No. 06-00258, Pre-Sentence Report, at ¶¶ 10-13; United States v. Weatherly, No. 06-0258, D.E. 43; United States v, Weatherly, 525 F.3d 265, 267 (3d Cir. 2008)). Given his criminal history, the United States charged Petitioner with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). (No. 06-00258, D.E. 1). Petitioner's first trial (No. 06-00258; D.E. 21-25, 28-35 and 43-46) ended in a mistrial when the jury could not reach a verdict. (No. 06-00258, D.E. 26). The retrial ended with a guilty verdict. (No. 06-00258; D.E. 43).

         At his December 15, 2006 sentencing, Petitioner argued that enhancing his sentence on the basis of judicially-found facts regarding his prior convictions would violate the Sixth Amendment. (D.E. 14 at 22-23).

         The Court rejected Petitioner's request for a variance and sentenced him to 200 months' imprisonment (Petitioner's "Sentence"), which was in the middle of the United States Sentencing Guidelines advisory range of 188 to 235 months.[1] (No. 06-00258, D.E. 48; D.E. 14 at 23-24). This Court stated:

Mr. Weatherly's pre-sentence report chronicles his history, his offense conduct for this particular offense which counsel have noted necessitated two trials here ... ... [I]t's the criminal history of this defendant that puts the case in a context whereby a long jail term could be anticipated. And it is true going through the defendant's history from a relatively youthful time in his life there has been one arrest after another, one conviction after another, weapons charges, burglary charges, possession of weapons, ultimately a murder, drug convictions.

         (D.E. 14 at 30).

         Challenging his conviction and sentence on direct appeal, Petitioner asserted that the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e), was unconstitutional because the jury, not the United States District Court, should determine whether any of his prior convictions qualify as "violent felonies" or "serious drug offenses" under 18 U.S.C. § 924(g)(1). United States v. Weatherly, 525 F.3d 265, 274 (3d Cir. 2008).

         The Third Circuit affirmed his conviction and sentence in a precedential opinion. Neatherly, 525 F.3d at 274. On October 6, 2008, the Supreme Court denied Weatherly's petition for a writ of certiorari. Weatherly v. United States, 555 U.S. 866 (2008).

         On May 24, 2016, Petitioner filed his first motion under 28 U.S.C. § 2255. (D.E. 1). His appointed attorney - the same counsel who represented him at trial and on direct appeal -supplemented the § 2255 motion on June 16, 2016. (D.E. 4). The motion argues that Petitioner no longer qualifies as an armed career criminal, following the Samuel Johnson decision. (D.E. 4 at 1-2). Petitioner's offense and sentencing history pertinent to his § 2255 motion includes:

         Juvenile Offenses: As a juvenile, Petitioner was arrested for breaking and entering, immoral conduct, assault, and injury to property. He was admitted to Youth Correction on March 31, 1966. (No. 06-00258, Pre-Sentence Report, at ¶ 31).

         Breaking and Entering - 1975 and 1977 Guilty Pleas Under N.J. Stat. Ann. § 2A:94-1: On August 19, 1974, Petitioner broke into a New Jersey gas station. (Id. at ¶ 50). On October 18, 1974, Petitioner broke into an apartment in Bellmawr, New Jersey and stole property. (Id. at ¶ 52). On April 28, 1977 and November 17, 1975, he pled guilty to these charges, respectively. (Id. at ¶¶ 51, 53). Petitioner acknowledges that his breaking and entering convictions were pursuant to N.J. Stat. Ann. § 2A:94-1, the predecessor statute to N.J. Stat. Ann. § 2C:18-2. (D.E. 4 at 6-7).

         Assault With A Deadly Weapon -- October 1975 conviction under California Penal Code § 245(a): Petitioner pled guilty in the fall of 1975 to assault with a deadly weapon, in violation of Cal. Penal Code § 245(a). (D.E. 14 at 35-36 and 56-64). He was sentenced to three years' probation, conditioned upon spending one year in county jail, with 133 days' jail credit. (D.E. 14 at 65-79; No. 06-00258, Pre-Sentence Report, at ¶ 53).

         Atrocious Assault and Battery -- April 1977 conviction under then-N.J. Stat. Ann. § 2A-.90-1 (two counts): Petitioner pled guilty in April of 1977 to two counts of atrocious assault and battery, in violation of former N.J. Stat. Ann. § 2A:90-1 (West 1969). (D.E. 14 at 82-87). He received four months' imprisonment for these convictions, to run concurrently with another sentence. (Id. at 87).

         Murder -- August 1977 conviction under former N.J. Stat. Ann. §§ 2A:113-1 and 2A:151-5: Almost two months after being released from prison on August 18, 1977, Petitioner committed murder by multiple stab wounds to the victim. (D.E. 14 at 88-94; No. 06-0258, Pre-Sentence Report at 11-12). Petitioner pled guilty to murder in violation of former N.J. Stat. § 2A:113-1 (count one) and armed murder in violation of former N.J. Stat. Ann. § 2A:151-5 (count two). He was sentenced on December 22, 1977 to 29-30 years' imprisonment. (D.E. 14 at 93; No. 06-00258, Pre-Sentence Report, at ¶¶ 55-56.).[2]

         III. STANDARD OP REVIEW

         Section 2255 provides, in relevant part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a). A district court must hold an evidentiary hearing on a § 2255 motion unless the "motion and the files and records of the case conclusively show" that the movant is not entitled to relief. 28 U.S.C. § 2255(b); see also United States v. Booth, 432 F.3d 542, 545-46 (3d Cir. 2005).

         For the reasons explained below, Petitioner is not entitled to habeas relief or an evidentiary hearing.

         IV. ANALYSIS

         Prior to Samuel Johnson, the ACCA provided:

[T]he term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that -- has as an element the use, attempted use, or threatened use of physical force against the person of another; or is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924 (e) (2) (B) (emphasis added to pre-Samuel Johnson "Residual ...


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