United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge.
R. Hudson (Defendant) has filed a § 2255 motion alleging
ineffective assistance of trial counsel. After initial
review, I deny the motion and dismiss it with
a self-admitted former Chicago gang member, and two buddies,
robbed a credit union and got caught. He entered a plea of
guilty. A real gun or a starter pistol was used, and the
occupants of the credit union were terrified. The Guideline
range was 188 months to 235 months with a criminal history
category of VI. Hudson had enough points for a criminal
history category of VI, but since he was a career offender,
his criminal history was VI anyway and his offense level
became 34 under U.S.S.G. § 4B1.1(a)&(b)(2). I
sentenced him to 200 months. He has filed a § 2255
motion claiming that his counsel should have objected to the
Guideline calculations because he was not a career
difficulty with Hudson's motion is that he does not
properly address the two prior convictions that made him a
career offender. He received three criminal history points
for a conviction for possession with intent to distribute a
controlled substance (heroin) where he received a sentence of
three years after failing out of boot camp. (Filing no. 164,
Presentence Report (PSR) at ¶ 89 and CM/ECF p. 18.) He
also ignores the armed robbery conviction for which he
received 3 criminal history points and a 12-year prison
sentence. (Id. at ¶ 92.)
argues that he was sentenced for the drug felony and an
aggravated unlawful use of weapon offense (id.
¶ 91 at CM/ECF p. 19) on the same dates and he received
sentences of probation for both cases. However, the
presentence report clearly shows that these offenses, while
sentenced on the same date, were committed on different
dates, there was an intervening arrest between the two
(id. ¶ 90 CM/ECF p. 18), Hudson received prison
sentences on both cases, and the aggravated unlawful use of a
weapon sentence was to be served consecutively to the drug
sentence. Thus, it plainly appears that they must be counted
separately. Thus, under the Guidelines, they were considered
separate convictions. U.S.S.G. § 4A1.2(a)(2).
extent that Hudson argues that a sentence to “boot
camp” is not countable as a conviction, the presentence
report shows a “[p]lea and finding of guilty”
which resulted in a prison sentence thus making it countable,
at the very least, as a “diversionary sentence”
under U.S.S.G. § 4A1.2(f). See also United States v.
Womack, 610 F.3d 427, 430 (7th Cir. 2010) (Five-year
period of imprisonment imposed by sentencing court for prior
controlled substance conviction, rather than the 121 days
defendant served in Illinois's boot camp rehabilitation
program for that conviction, was the proper measure for
determining whether the sentence received for the prior
conviction qualified the prior conviction as a predicate
offense for purposes of applying the career offender
enhancement under the Sentencing Guidelines).
short, because the Guidelines were properly calculated,
Hudson's counsel could not have been ineffective for
failing to object to them. Indeed, as I mentioned at
sentencing, defense counsel “did absolutely all you
could for your client, and he ought-he has been extremely
well served by your representation, and we appreciate your
hard work and good judgment.”) (Filing no. 186 at
CM/ECF pp. 19-20.)
a defendant cannot appeal an adverse ruling on a § 2255
motion unless he or she is granted a certificate of
appealability. 28 U.S.C. § 2253(c)(1); 28 U.S.C. §
2253(c)(2); Fed. R. App. P. 22(b)(1). The standards for
certificates (1) where the district court reaches the merits
or (2) where the district court rules on procedural grounds
are set forth in Slack v. McDaniel, 529 U.S. 473,
484-485 (2000). I have applied the appropriate standard and
determined that the defendant is not entitled to a
certificate of appealability.
1. The Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody
(filing no. 211) is denied and dismissed with prejudice.
2. A separate judgment will be entered.
3. No. certificate of ability has been or will be issued.
DATED this 20th day of February, 2019.