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United States v. Barnett

United States District Court, S.D. New York

January 13, 2020

UNITED STATES OF AMERICA,
v.
Bernard Barnett, Petitioner.

          ORDER

          LORETTA A. PRESKA, SENIOR UNITED STATES DISTRICT JUDGE.

         Before the Court are three motions submitted by Petitioner Bernard Barnett ("Petitioner" or "Barnett"): (1) Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 in Light of Johnson v. United States, 135 S.Ct. 2551 (2015)("Johnson Submission"), dated July 7, 2017 [dkt. no. 500]; (2) Motion for Review Extreme Sentence under the Holloway Doctrine ("Holloway Submission"), dated Nov. 7, 2017 [dkt. no. 510][1] and (3) Motion for a Reduction of the Term of Imprisonment Based on Section 404 of the First Step Act of 2018, Pub. L. No. 115-391 § 404(b) (2018) ("FSA Motion" or "First Step Act Motion"), dated Mar. 25, 2019 [dkt. no. 525].[2]

         The Government has filed separate opposition letters in response to Barnett's § 2255 Motions and to Barnett's FSA Motion. (See Letter Response in Opposition to Barnett's § 2255 motion ("Gov't § 2255 Opp."), dated Jan. 15, 2019 [dkt. no. 518];[3] Letter Response in Opposition to Barnett's First Step Act Motion TGov't FSA Opp."), dated Apr. 30, 2019 [dkt. no. 531]).

         Upon review of the aforementioned materials, this Court finds that (1) Petitioners § 2255 Motions are denied in their entirety on procedural grounds; and (2) Petitioner is eligible under the First Step Act for a reduction of sentence on Count Three but is not eligible for a reduction of sentence on Count One, therefore resulting in no change in the life-sentence currently being served.

         I. Procedural History

         On December 6, 1991, a jury found Barnett guilty of six counts: (1) conspiracy to distribute narcotics, in violation of 21 U.S.C. § 846; (2) possession with intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(b)(1)(A); (3) possession with intent to distribute cocaine-base, in violation of 21 U.S.C. § 841 (b)(1)(C); (4) the use of a firearm in relation to drug trafficking, in violation of 18 U.S.C. § 924(c); (5) possession of a firearm after a felony conviction, in violation of 18 U.S.C. § 922(g)(1); and (6) maintaining a place to manufacture and distribute narcotics, in violation of 21 U.S.C. § 856(a)(1). See United States v. Barnett, 870 F.Supp. 1197, 1200 (S.D.N.Y. 1994).

         Barnett was sentenced by the Honorable David N. Edelstein on August 13, 1992 to life imprisonment on Counts One and Three based on § 4B.1 ("Career Offender Provision") of the U.S. Sentencing Guidelines. See United States v. Barnett, No. 90-cr-913, 2001 WL 883119, at *1 (S.D.N.Y. Aug. 3, 2001).

         In October 1993, the Court of Appeals affirmed Barnett's convictions by summary order and denied Barnett's first petition for relief pursuant to 28 U.S.C. § 2255. See United States v. Roberts, 9 F.3d 1537 (2d Cir. 1993); see Barnett, 870 F.Supp. at 1210. Barnett has since accumulated "an extensive history of filing with this Court and other federal courts." Barnett v. United States, Nos. 11-cv-2736, 90-cr-913, 2012 WL 1003592, at *1 (S.D.N.Y. Mar. 26, 2012).

         In 2006, when Barnett moved for the nineteenth time for an order authorizing this Court to consider a successive § 2255 motion, the Court of Appeals enjoined Barnett from filing "any further motions, petitions, or other papers in this Court, unless leave of the Court has first been obtained to file such papers." United States v. Roberts, No. 06-1702 (2d. Cir. Oct. 4, 2006). In April 2011, this Court barred Barnett from filing any future petitions or motions challenging his December 1991 conviction without leave from the Court. See Barnett v. United States, No. 11-cv-74, dkt. no. 7, at 3 (S.D.N.Y. Apr. 12, 2011).

         After filing a successive petition for § 2255 relief in 2016, Barnett obtained leave to file an application with the Court of Appeals. (See dkt. No. 485). The Court of Appeals granted leave to file the successive motion and transferred the motion back to this Court for consideration. (Dkt. no. 487 (granting Barnett's motion to challenge his career offender status); see dkt. no. 488)(transferring the motion back to this Court)). The Motion is now pending before this Court. (See Johnson Submission). Barnett subsequently made additional filings in connection with this motion.[4] All pending motions are addressed below.

         II. Petitioner's § 2255 Motions

         a. Barnett's Johnson Submission

         In the Johnson Submission, Petitioner requests that his sentence be vacated because his conviction for New York first-degree robbery under New York Law in 1974 did not qualify as a predicate "crime of violence" under United States Sentencing Guidelines ("USSG" or ''Guidelines") Section 4B1.1 (the Career Offender provision). (See Johnson Submission at 7; see also Gov't. 2016 Opp. at 6). Petitioner therefore asserts that the sentence imposed in 1992 violates the Due Process Clause. (See Johnson Submission at 7).

         As explained below, this Court adopts the arguments put forth by the Government and holds that Barnett has failed to satisfy the procedural requirements of § 2255. The Motion is barred by the statute of limitations in 28 U.S.C. § 2255(f) and therefore cannot satisfy the restrictions on ...


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