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Whidbee v. United States

July 27, 2009


The opinion of the court was delivered by: Charles P. Sifton (electronically signed) United States District Judge


SIFTON, Senior Judge.

On April 17, 2007, Maurice Whidbee ("petitioner") was found guilty by a jury of being a previously convicted felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On March 27, 2008, I sentenced petitioner to a term of imprisonment of 182 months, which petitioner is currently serving. Now before the Court is petitioner's habeas corpus petition for relief, pursuant to 28 U.S.C. § 2255,*fn1 to vacate, set aside or correct his sentence on the following grounds: (1) petitioner's trial counsel was ineffective for failing to argue that the Court could not enhance his sentence under the Armed Career Criminal Act ("ACCA"), 18 U.S.C. § 924(e)(1); (2) petitioner's appellate counsel was ineffective for failing to properly communicate with him; (3) petitioner's sentence was invalid under Apprendi v. New Jersey, 530 U.S. 466 (2000) because the fact of his prior convictions was determined by a judge and not a jury; and (4) petitioner is "actually innocent" of the armed career offender status, upon which his enhanced sentence was based.*fn2 For the reasons set forth below, the motion is denied.


The following facts are taken from the record, the parties' submissions in connection with this motion and prior decisions in this case.

On June 21, 2006, at approximately 1:50 a.m., New York Police Department officers observed petitioner walking with a pronounced limp on a sidewalk near Marcus Garvey Boulevard and Lafayette Avenue in Brooklyn, New York. Trial Transcript ("T.") at 40-53. As the officers approached the petitioner to ascertain whether he was injured, they observed a large bulge in petitioner's right pant leg. T. at 55-59. A closer examination and pat-down of the outside of petitioner's pant leg revealed an unloaded four-foot long Remington sniper rifle. T. at 59-65.

Petitioner was arrested and plead guilty to misdemeanor possession of a firearm in the fourth degree, in violation of Section 265.01 of the New York Penal Law, in King's County Supreme Court. Petitioner was sentenced to time served after having spent less than thirty days in prison. Presentence Investigation Report ("PSR") ¶ 5.

On September 26, 2006, an Assistant Attorney General authorized the United States Attorney to pursue a successive prosecution of the petitioner for violation of federal firearms laws. United States v. Whidbee, No. CR-06-0759 (CPS), 2007 WL 1074602, at *2 (E.D.N.Y. April 9, 2007). On November 16, 2006, a federal grand jury returned an indictment against petitioner for possessing a firearm after having been convicted of three violent felonies, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(1). On April 17, 2007, petitioner was convicted by a jury of the sole count of the indictment. United States v. Whidbee, No. CR-06-0759 (CPS) (E.D.N.Y. April 17, 2007).

Prior to his June 2006 arrest, petitioner's record contained eleven criminal convictions. See PSR ¶ 18-52. The following convictions were violent felonies:*fn3 (1) in 1995, the defendant was convicted in Queens County of Attempted Burglary in the Second Degree; (2) in 2000, petitioner was convicted in Queens County of Attempted Robbery in the Third Degree; and (3) in 2000, petitioner was also convicted in Bronx County of Attempted Arson in the Second Degree while incarcerated on Riker's Island. PSR ¶¶ 18-52.

Petitioner's Presentence Report noted that petitioner's three prior violent felony convictions subjected him to an enhanced sentence under the provisions of ACCA and to designation as an "armed career criminal," per U.S.S.G. § 4B1.4.*fn4 PSR ¶ 5. Petitioner's status as an "armed career criminal" also triggered enhancements to his offense level and criminal history pursuant to the Sentencing Guidelines under § 4B1.4(a), 4B1.4(b)(3)(B), and 4B1.4(c)(2).*fn5 Due to that enhancement, petitioner's offense level was increased to 33 points, and his criminal history category was enhanced to VI, resulting in a Guidelines range of 235 to 293 months. See PSR ¶ 5, 56, 93. In consideration of the factors enumerated in 18 U.S.C. § 3553,*fn6 I sentenced the petitioner to 182 months of incarceration followed by five years of supervised release.*fn7 Transcript of Sentencing, March 27, 2008, at 32. I found that petitioner's criminal history category was largely "influenced by conduct caused by a terrible upbringing and mental health problems," and considered "the fact that the same history of misconduct ends up being counted against [petitioner] on the offense level side of the equation and the criminal history category." Id. at 30. Accordingly, I imposed a sentence above the ACCA minimum of 180 months but below the advisory sentencing guidelines. Id. at 30-32.

Petitioner thereafter obtained new counsel and appealed his conviction and sentence, arguing that the imposition of an enhanced sentence under ACCA violated the Eighth Amendment's prohibition against cruel and unusual punishment. United States v. Whidbee, 307 Fed.Appx. 537, 2009 WL 137022 at *538 (2d Cir. 2009). On January 21, 2009, the Court of Appeals rejected petitioner's argument and upheld the conviction and sentence, noting that the Eighth Amendment "forbids only extreme sentences that are grossly disproportionate to the crime." Id. (quoting United States v. Rivera, 546 F.3d 245, 254-55 (2d Cir. 2008)) (internal quotation marks omitted). The Court further stated that it had consistently rejected the argument that the mandatory minimum provided by 18 U.S.C. § 924(e)(1) was grossly disproportionate as applied to a defendant with three prior violent felony convictions. See, e.g., United States v. Mitchell, 932 F.2d 1027, 1028-29 (2d Cir. 1991); United States v. Gamble, 388 F.3d 74, 77 (2d Cir. 2004) (per curiam).

Petitioner filed this application for habeas pro se on February 20, 2009.


I. ...

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