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Henderson v. Grondolsky

United States District Court, D. Massachusetts

March 28, 2019

VALENTINO HENDERSON, Petitioner,
v.
JEFFREY GRONDOLSKY, Warden Respondent.

          MEMORANDUM OF DECISION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS AND GOVERNMENT'S MOTION TO DISMISS THE PETITION

          Judith Gail Dein United States Magistrate Judge.

         I. INTRODUCTION

         On January 9, 2007, the Petitioner, Valentino Henderson, was convicted by a jury sitting in the United States District Court, Middle District of Pennsylvania, of one count of conspiracy to distribute and possess with intent to distribute two kilograms and more of cocaine hydro-chloride in violation of 21 U.S.C. § 846, and one count of distribution and possession with intent to distribute two kilograms and more of cocaine hydrochloride in violation of 21 U.S.C. § 841(a). United States District Court, Middle District of Pennsylvania (Harrisburg) Cr. No. 1:06cr234.[1] He was sentenced as a career offender under U.S. Sentencing Guidelines Manual (“U.S.S.G.” or “Sentencing Guidelines”) §§ 4B1.1 and 4B1.2 to 160 months, concurrently on each count. His career offender status was based upon prior Pennsylvania state law convictions for aggravated assault and possession with intent to deliver cocaine.

         Henderson's conviction was affirmed on appeal. He subsequently filed a petition pursuant to 28 U.S.C. § 2255 with the U.S. District Court for the Middle District of Pennsylvania, arguing ineffective assistance of counsel. His petition was denied. Subsequently, Henderson sought leave from the Court of Appeals for the Third Circuit to file a successive § 2255 habeas petition with the Pennsylvania Middle District Court challenging his sentence as a career offender on the grounds that his prior Pennsylvania state conviction of aggravated assault did not qualify as a crime of violence under Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015). These challenges ultimately proved unsuccessful.

         Henderson is currently incarcerated at the Federal Medical Center, Devens, in Ayer, Massachusetts. He has filed the instant habeas petition pursuant to 28 U.S.C. § 2241, alleging that his prior Pennsylvania state court convictions are not qualifying crimes of violence or controlled substance offenses under Descamps v. United States, 570 U.S. 254, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), Johnson v. United States, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015), and Mathis v. United States, 136 S.Ct. 2243, 195 L.Ed.2d 604 (2016). He is seeking to be resentenced as a non-career offender. The Government has moved to dismiss Henderson's petition for lack of jurisdiction, or, in the alternative, requests that the petition be denied on substantive grounds. Docket No. 11.

         For the reasons detailed herein, this court finds that it lacks jurisdiction over the instant petition, and that, in the alternative, there was no error in sentencing. Therefore, the Government's motion to dismiss or deny the habeas petition is ALLOWED.

         II. STATEMENT OF FACTS [2]

         The Original Sentence

         On January 9, 2007, Henderson was convicted of conspiracy to distribute and possess with intent to distribute two kilograms and more of cocaine hydrochloride in violation of 21 U.S.C. § 846, and distribution and possession with intent to distribute two kilograms and more of cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1). PA Dkt. No. 43; Ex. 1. The Presentence Report (App. B) (“PSR”) calculated the total offense level to be 34. PSR ¶¶ 16, 24. While Henderson's criminal history was originally calculated at IV, it was increased to VI upon the conclusion that he was a career offender. PSR ¶¶ 23, 31. His career offender status was based on the fact that he was at least 18 years old at the time of the offense, the offense was a controlled substance offense, and, as discussed more fully below, he had at least two prior felony convictions for crimes of violence and controlled substance offenses. Id. The change in the criminal history calculation from IV to VI increased the applicable Guideline range from 210 to 262 months to 262 to 327 months of incarceration. PSR ¶ 50; see U.S.S.G. Chapter 5, Sentencing Table.

         The sentencing judge rejected the Government's calculation of the amount of drugs involved and concluded that Henderson's base offense level would have been 28 absent his career offender status, not the 34 calculated by the Government. Nevertheless, the base level was increased to 34 due to Henderson's status as a career offender. Sentencing Transcript (Ex. 3) at 10. The sentencing judge also found that “the defendant's career offender designation substantially overrepresents the seriousness of his criminal history and the likelihood that he will commit other crimes.” Id. at 24. Consequently, the court allowed a downward departure to a criminal history category of V and an offense level of 30. Id. The Guideline range was then reduced to 151 to 188 months. Id. Henderson was sentenced to 160 months on each count, to be served concurrently. Id. at 29.

         With an offense level of 28 and a criminal history category of IV, the Guideline range at the time of sentencing would have been 110 to 137 months if Henderson had not been a career offender. See Docket No. 11 at 9 & n.10. Subsequently, if Henderson had been entitled to the sentence reduction authorized by Amendment 782 to the United States Sentencing Commission Guidelines Manual, [3] it is estimated that Henderson's sentencing Guideline range would have been reduced to 92 to 115 months based on an offense level of 26 and a criminal history category of IV. See Ex. 8 at 3. Henderson is asking to be resentenced at that range.

         Prior Convictions

         Henderson had two prior felony convictions that resulted in his status as a career offender. In 1995, when he was 19, he was found guilty following a non-jury trial of possession with intent to distribute crack cocaine. PSR ¶ 27. He was sentenced to 8 to 23 months and was paroled before his term expired. Id. The charges resulted from a search of the defendant's home by police where he was found in possession of 11 packets of crack cocaine, weighing a total of 1.51 grams, $282.00, baggies, and razor blades. Id. A confidential informant had previously purchased drugs from Henderson. Id. The information charging Henderson with this offense provided as follows:

THE DISTRICT ATTORNEY of York County by this information charges that on or about July 19, 1994, in said Count of York, Valentino Elmando Henderson did, at the County aforesaid and within the jurisdiction of this Court, without authority, manufacture, deliver, or possess with the intent to manufacture or deliver a controlled substance or knowingly create, deliver or possess with intent to deliver a counterfeit controlled substance as set forth in Schedule II to wit: said defendant did possess Crack Cocaine with the intent to deliver, thereby committing the offense of Manufacturing or Delivering a Controlled or Counterfeit Substance; or Possession With Intent to Manufacture or Deliver a Controlled or Counterfeit Substance, a Felony, all of which is against the Act of Assembly* and the peace and dignity of The Commonwealth of Pennsylvania.
*Act of April 14, 1972, as amended; 35 C.P.S.A. §780-113(a)(30) as amended.

Ex. 14 (emphasis in original).

         In 1999, when he was 23, Henderson pleaded nolo contendere to aggravated assault, and was found guilty of resisting arrest, disorderly conduct and harassment. PSR ¶ 28. He was sentenced to 6 to 23 months of imprisonment and was paroled before his term expired. Id. These charges arose out a confrontation at a nightclub between the defendant and the club owner. Id. When the police arrived, the defendant swung at a police officer, resisted arrest, and had to be subdued with pepper spray. Id. The information to which Henderson pleaded nolo contendere provided as follows:

THE DISTRICT ATTORNEY of York County by this information charges that on or about May 3, 1998, in said Count of York, Valentino Elmando Henderson did, at the County aforesaid and within the jurisdiction of this Court, attempt to cause or intentionally or knowingly caused bodily injury to any of the officers, agents, employees or other persons enumerated in 18 Pa.C.S. § 2702(c), as amended, in the performance of duty, to wit: said defendant did attempt to cause or intentionally or knowingly caused bodily injury to police officers while attempting to make an arrest, thereby committing the offense of Aggravated Assault, a Felony of the Second degree, all of which is against the Act of Assembly* and peace and dignity of The Commonwealth of Pennsylvania.
*Act of December 6, 1972, as amended; 18 Pa.C.S. §2702(a)(3), as amended.

Ex. 13 (emphasis in original).

         As noted above, the sentencing judge had found that Henderson's status as a career offender on the basis of these convictions overstated the seriousness of his criminal history.

         Post-trial Proceedings

         Henderson appealed his convictions to the Third Circuit Court of Appeals. United States v. Henderson, 289 Fed.Appx. 485 (3d Cir. 2008). On appeal, Henderson challenged the admissibility of some testimony and claimed ineffective assistance of counsel. Id. at 487. The Third Circuit affirmed the evidentiary rulings and convictions, and held that the proper procedure for asserting an ineffective assistance of counsel claim was to ...


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