The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Veil V. Douglass' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (d/e 1) (Petition) and his Motion to Strike Government Under Fed.R.Crim.P. 32(c)(3)(D) Presentence Investigation Report (d/e 11). For the reasons stated below, Douglass' Petition and Motion are denied.
On January 25, 2005, after a jury trial, Douglass was convicted of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1). His Indictment alleged only that he previously had been convicted of a crime punishable by a term of imprisonment exceeding one year; it did not list his prior felony convictions. See Cent. Dist. of Ill. Case No. 04-30064 Indictment (d/e 6). The Presentence Investigation Report (PSR) noted that Douglass had four prior felony convictions that qualified him as an Armed Career Criminal under 18 U.S.C. § 924(e). Specifically, the PSR noted that Douglass was convicted of: (1) robbery in Sangamon County, Illinois (for which he received three years imprisonment); (2) voluntary manslaughter in Sangamon County, Illinois (for which he received four years imprisonment); (3) battery in Baltimore, Maryland (for which he received a sentence of one year in jail, 11 months suspended); and (4) battery in Baltimore, Maryland (for which he received a suspended sentence of 18 months imprisonment).
At sentencing, both Douglass and his attorney stated that they had no objections to the PSR. After the Court accepted the findings of the PSR, however, Douglass' attorney argued that the two convictions for battery in Baltimore, Maryland, should not be considered qualifying offenses under the Armed Career Criminal Act. He argued:
And as for the issues that occurred in Baltimore, Maryland, in argument we would submit to this Court that without verification and additional information as brought by the Probation Officer couldn't get verification of the various type of sentences or conviction, whether they were misdemeanor convictions versus felony convictions, we would argue that the Court cannot take into account the Baltimore, Maryland cases for enhancing the type of time that he would be entitled to.
May 27, 2005 Sentencing Hearing Transcript (d/e 55), at 11. Without application of the Armed Career Criminal statute, Douglass would have had a base offense level of 24 and a Criminal History Category of III, which provided for a Guideline range of 63 to 78 months imprisonment. The Court found that Douglass did qualify as an Armed Career Criminal, however. The Court held that Douglass had: prior convictions for robbery, voluntary manslaughter, and what appear to qualify as two felony batteries from the State of Maryland. All of which are crimes of violence as defined because they have elements of force incorporated in the crimes.
Robbery in Illinois is a crime that requires proof of taking something of value from someone by force or the threat of force. Manslaughter, of course, involves killing someone. And battery involves the unlawful touching and causing of harm to another. As reflected in the pre-trial, one of the batteries caused someone to seek medical attention.
So they qualify as predicating felonies. They were all separate occurrences preceding the offense in this case.
Id. at 4-5. Based on this finding, Douglass had a base offense level of 33 and a criminal history score of IV, which provided for a Guideline range of 188 to 235 months imprisonment. The Court sentenced Douglass to 210 months imprisonment.
Douglass filed an appeal challenging only the Court's denial of a motion to suppress. The Seventh Circuit affirmed the Court's ruling. United States v. Douglass, 467 F.3d 621 (7th Cir. 2006).
Douglass now argues that he is entitled to habeas corpus relief, and he raises four separate arguments, all relating to his status as an Armed Career Criminal. First, Douglass contends that he received ineffective assistance of counsel at the trial level because his attorney "failed to investigate my prior convictions used to trigger the armed career criminal enhancement." Petition, at 5. He asserts that "two (2) of the prior convictions non-qualifying and thus my sentence is imposed in violation of law." Id. Second, Douglass argues that his sentence violated his Fifth Amendment right to due process because "the Armed Career Criminal enhancement under § 4B1.4 requires three (3) predicate prior convictions and one of the priors used to enhance me is non-qualifying." Id. Third, Douglass contends that the Government's failure to allege his prior convictions in the Indictment violated the Sixth ...