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Hafiz-Thompson v. United States

United States District Court, W.D. Missouri, Western Division

February 26, 2019

AAMIR HAFIZ-THOMPSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER

          STEPHEN R. BOUGH UNITED STATES DISTRICT JUDGE

         Before the Court is Movant Aamir Hafiz-Thompson's Motion to Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 (Doc. #5). For the following reasons the motion is DENIED.

         I. Background

         On August 25, 2015, Movant Aamir Hafiz-Thompson was indicted on two counts-felon in possession of a firearm and possession of a stolen firearm. On May 26, 2016, pursuant to a plea agreement, Movant pleaded guilty to Count 2 of the indictment, possession of a stolen firearm, in violation of 18 U.S.C. §§ 922(j), 924(a)(2), which carries a statutory maximum prison sentence of ten (10) years. Under the plea agreement, the United States (“Respondent”), Movant, and Movant's counsel agreed “that no one will seek or make any efforts or allow anyone to seek or make any efforts for any sentence to be imposed upon the defendant other than a sentence of ten (10) years imprisonment . . . .” (Case 4:15-cr-00265-SRB, Doc. #30, p. 8). The parties entered into this agreement with the understanding that by doing so, Movant avoided exposure to the enhanced penalty under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(1), which would have resulted in a minimum prison sentence of fifteen (15) years if Movant was found guilty for Count 1 of his indictment, felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

         On November 21, 2016, the Court held a sentencing hearing. At the sentencing hearing, the Court recognized a total offense level of 23 and criminal history category of VI, which translated to a guideline imprisonment range calculation of 92 to 115 months, to be followed by one to three years supervised release. The Court sentenced Movant to ten years (120 months) imprisonment and three years of supervised release, finding “the guideline calculations to be insufficient to impose a sentence within the guideline range based upon [Movant's] extensive criminal history.” (Case 4:15-cr-00265-SRB, Doc. #54, p. 15). Movant filed the instant motion on April 16, 2018, asserting that 1) he received ineffective assistance of counsel; 2) his guilty plea was coerced, unknowing, involuntary, and unintelligent; 3) the Government nullified its stipulation to credit Movant a three-level reduction in his sentence for acceptance of responsibility; and 4) the Court impermissibly departed or varied upward in sentencing Movant.

         II. Legal Standard

         “A prisoner . . . 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, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). “If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner . . . the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” Id. § 2255(b). The district court is required to accept the allegations in a prisoner's § 2255 motion as true and conduct an evidentiary hearing on those allegations unless they are refuted by the record, are inherently incredible, merely conclusory, or they would not have entitled the petitioner to relief. Garcia v. United States, 679 F.3d 1013, 1014 (8th Cir. 2012).

         III. Discussion

         a. Timeliness

         Persons seeking relief under § 2255 have a one-year period of limitation from the date on which their judgment is final to file a § 2255 motion. § 2255(f); Clay v. United States, 537 U.S. 522, 524 (2003); Moore v. United States, 173 F.3d 1131, 1333 (8th Cir. 1999). On November 28, 2016, Petitioner filed a timely notice of appeal. On February 9, 2018, the Eighth Circuit dismissed the appeal. Movant filed the instant motion on March 26, 2018, which falls within one year of the date his judgment became final. See Clay, 537 U.S. at 532 (“[F]or federal criminal defendants who do not file a petition for certiorari with [the Supreme] Court on direct review, § 2255's one-year limitation period starts to run when the time for seeking such review expires.”); Sup. Ct. R. 13(1), (3) (90-day period to “file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed[.]”). Therefore, this motion is timely.

         b. Ineffective Assistance of Counsel

         An ineffective assistance of counsel claim requires a movant to satisfy a two-part test by showing: (1) his counsel's performance was deficient, and (2) the deficiency prejudiced his defense. Deltoro-Aguilera v. United States, 625 F.3d 434, 437 (8th Cir. 2010). Prong one, deficient performance, is defined as performance that “falls below the ‘range of competence demanded of attorneys in criminal cases.'” Theus v. United States, 611 F.3d 441, 446 (8th Cir. 2010) (quoting Strickland v. Washington, 44 U.S. 668, 687 (1984)). In other words, this prong is satisfied when a movant shows that counsel “failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibit[ed] under similar circumstances.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (citations omitted). Counsel is “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 44 U.S. at 687. Prong two, prejudice, requires the movant to “demonstrate that there is a reasonable probability that the outcome would have been different but for counsel's deficient performance.” Theus, 611 F.3d at 447. Both prongs must be satisfied for a movant to prevail on an ineffective assistance of counsel claim. Apfel, 97 F.3d at 1076.

         Movant argues his former counsel, Willis Toney (“Counsel”), “failed to be truthful” regarding whether Movant's prior convictions subjected Movant to an enhanced sentence under the ACCA. (Doc. #5, p. 4). Movant states that he entered into a coerced, unknowing, involuntary, and unintelligent guilty plea based on being misled by counsel to believe that he faced an enhanced prison sentence of a minimum of fifteen (15) years pursuant to the ACCA. Respondent contends that Movant's claim is contrary to the record and without merit.

         Section 924(e)(1) requires an enhanced statutory range of punishment for anyone convicted of violating § 922(g) if the person has three prior convictions for violent felonies or serious drug offenses, or both, “committed on occasions different from one another.” If an individual is found guilty of being a felon in possession of a firearm and “has three or more earlier convictions for a ‘serious drug offense' or a ‘violent felony,' the [ACCA] increases his prison term to a minimum of 15 ...


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