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Cummings v. USA

United States District Court, S.D. Indiana, Indianapolis Division

November 30, 2017

USA, Respondent.



         Petitioner Michael Lloyd Cummings's motion for relief pursuant to 28 U.S.C. § 2255 must be denied and the action dismissed with prejudice for the reasons set forth below. In addition, the Court finds that it does not have the legal authority to issue a certificate of appealability regarding Mr. Cummings's statutory claim.

         I. The § 2255 Motion


         The background facts necessary to understand Mr. Cummings's claim are brief and were set forth by the Seventh Circuit in the combined direct appeal of Mr. Cummings and his codefendant, James Pless. They are as follows:

On June 12, 1991 a grand jury handed down a three-count superseding indictment in this case. In the first count Cummings, Pless and four others . . . were charged with conspiracy to manufacture methamphetamine in a quantity greater than 1000 grams, in violation of Section 841(a)(1). Under the second count Cummings, Pless and ten others . . . were charged with conspiracy to distribute methamphetamine in violation of the same statute. In the final count Cummings was charged with being a convicted felon in possession of firearms in or affecting commerce, in violation of Sections 922(g)(1) and 924(a)(2). Cummings, Pless and two others (Michael Starks and Randall Newton) went to trial. Starks and Newton were acquitted, but Cummings and Pless did not fare so well and were convicted on all counts.

United States v. Pless, 982 F.2d 1118, 1121 (7th Cir. 1992). Because Mr. Cummings had a prior California felony drug conviction, his statutory term of imprisonment was not less than twenty years and not more than a life sentence. See 21 U.S.C. § 841(b)(1)(A). Mr. Cummings was sentenced to a term of life on Counts One and Two and a term of sixty months on Count Three, all of which were to be served consecutively. Pless, 982 F.2d at 1121.


         Mr. Cummings raises one claim in his § 2255 motion. He argues that his life sentence authorized by § 841 due to his prior California felony drug conviction is invalid because, following California Proposition 47 and a subsequent order from the California state court, that conviction has been reclassified as a misdemeanor. The respondent does not dispute that Mr. Cummings's prior felony drug conviction has been reclassified as a misdemeanor, but argues that Mr. Cummings is nevertheless not entitled to resentencing.

         California Proposition 47, among other things, reduced certain California convictions from felonies to misdemeanors and also permitted certain previously convicted defendants to petition for a “recall of sentence, ” which, if granted, effectively reclassified their convictions from felonies to misdemeanors. See Cal. Penal Code § 1170.18(a). An exhibit submitted with Mr. Cummings's § 2255 motion shows that on August 29, 2016, his felony drug conviction was reclassified to a misdemeanor.[1]

         Section 841 provides in relevant part that, “[i]f any person commits [a violation of this section] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment which may not be less than 20 years and not more than life imprisonment.” 21 U.S.C. § 841(b)(1)(A). Whether or not Mr. Cummings's challenge has merit presents a straightforward question of statutory interpretation: did he commit the charged violation of § 841 “after a prior conviction for a felony drug offense has become final”?

         “As in all statutory construction cases, [the Court] begin[s] with the language itself [and] the specific context in which that language is used.” McNeill v. United States, 563 U.S. 816, 819 (2011) (citation and quotation marks omitted). The plain language of the statute suggests that the relevant inquiry requires the Court to determine whether the charged § 841 offense occurred after a prior felony drug conviction became final. This is a backward-looking inquiry that requires the Court to examine, when determining the appropriate sentencing range, whether the defendant committed the charged offense after another felony drug conviction was final. Here, it is undisputed that at the time of sentencing for his § 841 offense, Mr. Cummings's prior California felony drug conviction was final. The statutory language does not in any way suggest that it matters if the then final felony drug conviction is later reclassified under state law to a misdemeanor. Instead, the § 841 offense must have occurred after the prior felony conviction was final, and here, it is undisputed that it did. Mr. Cummings's claim therefore lacks merit based on the plain language of the statute.

         The Ninth Circuit addressed an identical claim based on California Proposition 47 in United States v. Diaz, 838 F.3d 968 (9th Cir. 2016), and reached the same conclusion. First, it noted that the Supreme Court in McNeill addressed a similar challenge by an individual whose sentenced was enhanced under the Armed Career Criminal Act (“ACCA”). In McNeill, one of the petitioner's state convictions that qualified as a predicate ACCA conviction had been altered such that it no longer was a qualifying prior conviction. But the Supreme Court held that this did not affect his federal conviction, explaining that “the ACCA asked a ‘backward-looking question' and the ‘only way to answer [this question] is to consult the law that applied at the time of that conviction . . . [this] avoids the absurd results that would follow from consulting current state law to define a previous offense.'” Diaz, 838 F.3d at 973 (quoting McNeill, 563 U.S. at 819-20); see United States v. Dyke, 718 F.3d 1282, 1293 (10th Cir. 2013) (“The question posed by § 841(b)(1)(A) is whether the defendant was previously convicted, not the particulars of how state law later might have, as a matter of grace, permitted that conviction to be excused, satisfied, or otherwise set aside.”).

         Although the Ninth Circuit recognized that California Proposition 47 “presents a slight variation” on McNeill, it ...

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