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Aubin v. Beasley

United States District Court, E.D. Arkansas, Eastern Division

October 12, 2018

PATRICK JEAN AUBIN PETITIONER
v.
GENE BEASLEY, Warden, FCI-Forrest City RESPONDENT

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following proposed Findings and Recommendation have been sent to United States District Judge D.P. Marshall Jr. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection, and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         The record reflects that petitioner Patrick Jean Aubin (“Aubin”) pleaded guilty in the United States District Court for the Middle District of North Carolina (“Middle District of North Carolina”) to one count of possession with intent to distribute marijuana, one count of possession with intent to distribute cocaine base, and one count of possession of a firearm by a convicted felon. See United States v. Aubin, 67 Fed.Appx. 842 (4th Cir. 2003). A Presentence Report (“PSR”) was then prepared, paragraph eighteen of which provided the following:

Chapter Four Enhancement: As is shown in Part B. Defendant's Criminal History, [Aubin] has been convicted of Trafficking in Cocaine, Conspiracy to Traffic in Cocaine, and Possession With Intent to Sell and Deliver Cocaine. Since the instant offense is a felony controlled substance [offense] and [he] was 18 years or older at the time of the offense, [he] is a career offender within the meaning of USSG 4B1.1. ...

See Docket Entry 8, Exhibit 1 at CM/ECF 2. On November 14, 2001, United States District Judge James A. Beaty, Jr., sentenced Aubin as a career offender to the custody of the Federal Bureau of Prisons (“BOP”). See Docket Entry 8, Exhibit 2.

         Aubin appealed and challenged, in part, his sentencing as a career offender. The United States Court of Appeals for the Fourth Circuit (“Fourth Circuit”) found no reversible error and affirmed. See United States v. Aubin, supra.

         On August 9, 2004, Aubin filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. 2255 in the Middle District of North Carolina. Judge Beaty denied the motion and declined to issue a certificate of appealability. See Docket Entry 8, Exhibit 5.

         Aubin attempted to appeal Judge Beaty's denial of the motion pursuant to 28 U.S.C. 2255. The Fourth Circuit denied a certificate of appealability and dismissed his appeal. See United States v. Aubin, 161 Fed.Appx. 331 (4th Cir. 2006).

         On September 19, 2013, Aubin filed a second motion pursuant to 28 U.S.C. 2255 in the Middle District of North Carolina. See Docket Entry 8, Exhibit 3 at CM/ECF 8 (Docket Entry 75). Approximately forty-two days later, he filed a third motion pursuant to 28 U.S.C. 2255 in the Middle District of North Carolina. See Docket Entry 8, Exhibit 3 at CM/ECF 8 (Docket Entry 78). Judge Beaty denied both motions on December 11, 2013, because Aubin failed to obtain authorization from the Fourth Circuit to file the motions. See Docket Entry 8, Exhibit 3 at CM/ECF 9 (Docket Entry 81).

         On December 17, 2017, Aubin filed a motion with the Fourth Circuit for authorization to file a second or successive motion pursuant to 28 U.S.C. 2255. See Docket Entry 2 at CM/ECF 2. He represents that he premised his motion for authorization primarily upon United States v. Simmons, 649 F.3d 237 (4th Cir. 2011). See Docket Entry 2 at CM/ECF 2. The Fourth Circuit denied the motion for authorization on January 3, 2018. See Docket Entry 8 at Exhibit 6.

         On March 23, 2018, Aubin began the case at bar by filing a petition for writ of habeas corpus pursuant to 28 U.S.C. 2241. In the petition, he advanced the following two claims:

1) in light of Mathis v. United States, ___ U.S. ___, 136 S.Ct. 2243, 195 L.Ed.3d 604 (2016), Aubin's sentencing as a career offender was improper because his prior convictions from the State of North Carolina no longer qualify as controlled substance offenses for purposes of the United States Sentencing Guidelines (“Guidelines”); and
2) in light of United States v. Simmons, Aubin is actually innocent of the felon-in-possession offense because his prior State of North Carolina conviction for possession with intent to sell and deliver cocaine is no longer a qualifying predicate conviction. Aubin asked that he be re-sentenced without the career ...

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