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McFarland v. United States

United States District Court, E.D. Missouri, Eastern Division

November 8, 2016




         This matter is before the Court on federal prisoner John McFarland's (“movant” or “McFarland”) pro se motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The government responded to the motion to vacate, and movant filed a reply titled “Defendant's Amended Motion Supporting 2255” (Doc. 16). The Federal Public Defender's Office also filed a reply in support of movant's § 2255 motion. For the reasons discussed below, the Court concludes that the instant motion was timely filed and is not second or successive, but does not entitle movant to relief and should be dismissed without an evidentiary hearing.

         I. Background

         McFarland and his codefendant Darryl Warren were charged by superseding indictment with conspiring between December 5, 1990 and September 11, 1995 to distribute and possess with intent to distribute 500 grams or more of cocaine, marijuana, and 100 grams or more of heroin, in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I). In addition, McFarland was indicted with traveling interstate in aid of racketeering in violation of 18 U.S.C. § 1952(a)(3) (Count II). The government filed an information pursuant to 21 U.S.C. § 851 stating that McFarland had two prior felony drug convictions that would enhance his penalties at sentencing if convicted. These convictions were from the State of California. McFarland was found guilty by a jury on both counts of the superseding indictment.

         The presentence investigation report (“PSR”) stated that for Count I, a violation of 21 U.S.C. § 841(a)(1) and § 846 carried a minimum term of imprisonment of ten years and maximum term of life, pursuant to 21 U.S.C. § 841(b)(1)(B). United States v. McFarland, 4:95-CR-312 CAS, Doc. 154, ¶ 75. For Count II, a violation of 18 U.S.C. § 1952(a)(3) carried a maximum term of imprisonment of five years. Id. The PSR stated that McFarland's guideline provisions were 360 months to life based on a total offense level of 38 and a criminal history category of VI. Id., ¶ 76. The PSR also stated that for Count I, a supervised release term of at least eight years was required under 21 U.S.C. § 841(b)(1)(A), and for Count II, the authorized term for supervised release was not more than three years pursuant to 18 U.S.C. § 3583(b)(2). Id., ¶ 78. The terms of supervised release were to run concurrently under 18 U.S.C. §3624(e). Id.

         McFarland was sentenced to 360 months imprisonment on Count I and 60 months imprisonment on Count II, to be served concurrently, followed by eight years supervised release. McFarland filed a direct appeal, but the Eighth Circuit Court of Appeals affirmed his conviction and sentence. United States v. McFarland, 116 F.3d 316 (8th Cir. 1997). Movant then filed a motion under 28 U.S.C. § 2255 which this Court denied after an evidentiary hearing. See McFarland v. United States, No. 4:98-CV-1841 CAS (E.D. Mo.). Movant filed a second motion under 28 U.S.C. § 2255, which this Court ordered transferred to the Eighth Circuit because movant had not obtained permission to file a second or successive motion under § 2255(h). See McFarland v. United States, No. 4:00-CV-1247 CAS (E.D. Mo.). The Eighth Circuit denied movant's petition to file a second or successive motion. McFarland v. United States, No. 00-3309 (8th Cir. Nov. 8, 2000).

         On January 29, 2015, the Court granted movant's Motion for Retroactive Application of Amendment 782 United States Sentencing Guidelines, and reduced his sentence to 324 months. (4:95-CR-312 CAS, Doc. 222.) Movant filed the instant motion under § 2255 on January 29, 2016.

         II. Legal Standard

         Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was imposed in violation of the Constitution or law of the United States, that the court lacked jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To warrant relief under § 2255, the errors of which the movant complains must amount to a fundamental miscarriage of justice. Davis v. United States, 417 U.S. 333 (1974); Hill v. United States, 368 U.S. 424, 428 (1962).

         “A § 2255 motion ‘can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).

         III. Discussion

         In the instant motion, movant seeks relief from his sentence imposed pursuant to 21 U.S.C. § 841(b)(1)(B), based on a recent change in California state law that affects the prior felony convictions on which his enhanced sentence was based. In November 2014, California voters enacted Proposition 47, Cal. Penal Code § 1170.18. As relevant here, Proposition 47 reduced future convictions under California Penal Code § 11350(a) from a felony to a misdemeanor, and permitted defendants previously convicted under the statute to seek a “recall of sentence” from the California state courts which, if granted, would reclassify their qualifying felonies as misdemeanors. United States v. Diaz, __ F.3d __, No. 10-50029, 2016 WL 5121765, at *2, reh'g and reh'g en banc denied, (9th Cir. Sept. 21, 2016).

         Attached to the motion to vacate is a copy of a letter from a paralegal with the County of San Diego, California Primary Public Defender, which states that the California court granted movant's Proposition 47 petitions to reclassify his two prior convictions from felonies to misdemeanors. The letter is not authenticated and movant does not provide any other evidence of the reclassification of his convictions. Because the government has not challenged the accuracy or sufficiency of movant's allegations concerning the change in his underlying convictions, the Court accepts for purposes of the instant motion that movant's prior California felony convictions are now misdemeanor convictions.

         The government opposes the motion to vacate on three grounds. First, it asserts that the motion is untimely because it was filed more than one year after the conviction became final, 28 U.S.C. § 2255(f)(1). It contends the reclassification of McFarland's prior state felony drug convictions does not qualify as a newly discovered fact that warrants extension of the one-year period under 28 U.S.C. § 2255(f)(4). Second, the government asserts that because movant previously filed a motion under § 2255, he must obtain permission from the Eighth Circuit before he can proceed. 28 U.S.C. § 2255(h). Third, the government asserts that movant's § 2255 fails on the merits because the reclassification of his prior felony ...

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