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Boston v. United States

United States District Court, E.D. New York

March 30, 2018

IVAN BOSTON, pro se, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM & ORDER

          DORA L. IRIZARRY Chief Judge.

         On September 14, 2011, pro se[1] petitioner Ivan Boston (“Petitioner”) was found guilty, after a jury trial, of possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On May 10, 2012, this Court sentenced Petitioner to the maximum term permitted by statute: 120 months of incarceration, followed by three years of supervised release. See Judgment & Commitment Order, No. 11-cr-107 (DLI), Dkt. Entry No. 78. On August 23, 2013, the Second Circuit Court of Appeals affirmed the judgment of this Court. See generally, United States v. Boston, 531 F. App'x 98 (2d Cir. 2013). Petitioner's petition to the United States Supreme Court for a writ of certiorari was denied. See Boston v. United States, 134 S.Ct. 977 (2014).

         On June 20, 2014, Petitioner timely filed a motion to “vacate, set aside or correct sentence, ” pursuant to 28 U.S.C. § 2255 (“Section 2255”). See generally, Pet'r's Mot. to Vacate, Set Aside or Correct Sentence, Dkt. Entry No. 1 (“Pet'r's Mot.”). Petitioner contends that: (1) he received constitutionally ineffective assistance of appellate counsel; and (2) his sentence was procedurally and substantively unreasonable. The Government opposed Petitioner's Motion on August 25, 2014 (“Government Opposition”), and Petitioner replied on October 7, 2014 (“Petitioner's Reply”). See Gov't Opp'n, Dkt. Entry No. 7; Pet'r's Reply, Dkt. Entry No. 11. Petitioner supplemented his motion on August 3, 2015, January 26, 2016, and May 31, 2016, to add a claim that his sentence violates the United States Supreme Court's rulings in Johnson v. United States, 135 S.Ct. 2551 (2015) and Welch v. United States, 136 S.Ct. 1257 (2016). See Pet'r's Suppl. Mots. I, II, & III, Dkts. 14, 17, 18. The Government opposed this claim on June 29, 2016. See Gov't Opp'n to Suppl. Mots., Dkt. Entry No. 19. For the reasons stated below, Petitioner's motion is denied in its entirety.

         BACKGROUND

         Familiarity with the facts and procedural history of this case is presumed, [2] and only those relevant to the disposition of the motion are repeated herein. Prior to sentencing, the Probation Department (“Probation”) prepared and disclosed a Presentence Report (“PSR”), No. 11-cr-107 (DLI), Dkt Entry No. 56, which was amended by several addenda. See No. 11-cr-107 (DLI), Dkt. Entry Nos. 60, 61, 69, 70, 73, 74. Probation determined that Petitioner's base offense level under the United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) was 20, because Petitioner had a prior conviction for a felony crime of violence, to wit, burglary in the third degree. See U.S.S.G. § 2K2.1(a)(4)(A); U.S.S.G. § 4B1.1-1.2; Gov't Opp'n at 8. Probation then added two levels for obstruction of justice, based on Boston's false declaration submitted in connection with his pretrial suppression motion. Gov't Opp'n at 8-9. Because he was convicted after a jury trial, Petitioner was not entitled to a three-level reduction for timely acceptance of responsibility. See Sentencing Tr. (“Tr.”) at 19:17-18, Dkt. Entry No. 9. Accordingly, Probation determined Petitioner to have a total offense level (“TOL”) of 22, with a Criminal History Category (“CHC”) of IV. Id. at 9. Petitioner's Sentencing Guideline Range (“SGR”) was 63 to 78 months of imprisonment. Id.

         At the sentencing hearing held on April 11, 2012, this Court adopted the PSR's determination of the advisory SGR. See Tr. at 19:20-22. However, the Court found that this calculation significantly underrepresented the seriousness of Petitioner's criminal history, which included violations committed while incarcerated, among them assault, rioting, and weapons possession, as well as multiple state parole violations. Id. at 33:2-37:14. The Court explained that, if the SGR were adjusted to take into account Petitioner's full criminal history, his CHC would be VI, yielding a SGR of 84 to 105 months of imprisonment. Id. at 37:14-38:3.

         Next, the Court turned to the sentencing factors enumerated at 18 U.S.C. § 3553(a), and concluded that a Guidelines sentence would be inappropriate for Petitioner. Tr. at 38:4-42:12. The Court imposed a sentence of 120 months of imprisonment, the statutory maximum, followed by three years of supervised release. Id. at 42:17-18. Special conditions were also imposed. Id. at 42:19-45:4. At the request of the parties, the Court adjourned the hearing then, so that Petitioner could submit a supplemental sentencing memorandum addressing the Court's decision to impose a non-Guidelines sentence. Gov't Opp'n at 10. On May 10, 2012, Petitioner received his sentence of 120 months of imprisonment, followed by three years of supervised release, and special conditions. Id.

         Petitioner timely appealed, arguing, inter alia, that his sentence was procedurally and substantively unreasonable, in part because he claimed that burglary in the third degree should not be considered a predicate “crime of violence.” See Gov't Opp'n at 11. The Second Circuit affirmed Petitioner's conviction and sentence on August 23, 2013. See Boston, 531 F. App'x at 101. In doing so, the Second Circuit specifically noted that its decision was made “substantially for the reasons given by the District Court in its thorough and well-reasoned oral rulings at the defendant's sentencing hearings of April 11, 2012 and May 10, 2012.” Id.

         Petitioner now argues that: (1) his appellate counsel was constitutionally ineffective; (2) his sentence was procedurally and substantively unreasonable; and (3) his sentence violates the Supreme Court's decisions in Johnson v. United States and Welch v. United States. See generally, Pet'r's Mot.; Pet'r's Suppl. Mots I, II, & III. Specifically, Petitioner contends that appellate counsel was ineffective because: (1) she did not seek en banc review of Petitioner's conviction and sentence, and allegedly was untimely in other post-appellate filings; and (2) she neither advised Petitioner properly of the application to his case of the United States Supreme Court's decision in Descamps v. United States, 133 S.Ct. 2276 (2013), nor acknowledged or submitted to the Second Circuit a 28(j)[3] letter prepared by Petitioner concerning Descamps.

         DISCUSSION

         I. Legal Standards

         Under Section 2255, “a sentencing court may vacate, set aside or correct a conviction or sentence imposed in violation of the Constitution or laws of the United States.” 28 U.S.C. § 2255. Relief generally is “available only for a constitutional error, defect of jurisdiction, or an error of law constituting a fundamental defect which inherently results in a complete miscarriage of justice.” Scala v. United States, No. 09-cv-4687 (SJ), 2010 WL 3780320, at *1 (E.D.N.Y. Sept. 21, 2010) (citations and internal quotation marks omitted).

         A. Ineffective Assistance of Counsel

         To succeed on a claim of ineffective assistance of counsel, a petitioner must (1) show that “his attorney's performance ‘fell below an objective standard of reasonableness, ' in light of ‘prevailing professional norms, '” and (2) “‘affirmatively prove prejudice' arising from counsel's allegedly deficient representation.” United States v. Caracappa, 614 F.3d 30, 46 (2d Cir. 2010) (quoting Strickland v. Washington, 466 U.S. 668, 688, 693 (1984)). “Although Strickland addressed the constitutional standard for ineffective assistance of counsel in the trial counsel context, our ...


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