Opinion
CASE NO.: 8:97-cr-273-T-23TBM.
April 12, 2011
ORDER
The order denying Terry's second motion under 28 U.S.C. § 2255 (Doc. 118) provides the history of this matter through December 22, 2004, and is attached for easy reference. Thereafter, Terry filed numerous motions seeking copies of documents, seeking amendment of his presentence report, seeking recusal of the district judge, attacking jurisdiction, attacking his plea, and attacking his sentence (Docs. 120, 123, 129, 130, 139, 140, 142, 144, 173, 174), all of which were denied or stricken (Docs. 122, 124, 132, 143, 148, 149, 185). The appeals of those orders are concluded (Docs. 138, 167, 176, 178, 180, 181, 182, 183, 184, 186, 190, 191).
Terry again moves (Doc. 192) to "withdraw his plea, as unconstitutional and allow him a fair trial, . . . an evidentiary hearing . . . [or] if none of the above is acceptable, allow Terry a copy of the original tape" of his plea hearing pursuant to Hansen v. United States, 956 F.2d 245 (11th Cir. 1992). Terry directs the court to "not construe this as a § 2255 or 2241" and provides no other basis for review.
Terry is precluded from pursuing a successive motion to vacate without permission from the Eleventh Circuit Court of Appeals. "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Felker v. Turpin, 518 U.S. 651, 664 (1996); Dunn v. Singletary, 168 F.3d 440, 442 (11th Cir. 1999). The district court lacks jurisdiction to review Terry's motion until the circuit court grants him permission to file a successive motion to vacate. Burton v. Stewart, 549 U.S. 147, 127 S. Ct. 793, 799 (2007) ("Burton neither sought nor received authorization from the Court of Appeals before filing his 2002 petition, a `second or successive' petition challenging his custody, and so the District Court was without jurisdiction to entertain it.").
Accordingly, Terry's motion to withdraw his plea, for an evidentiary hearing, or for a copy of the original tape of his plea hearing (Doc. 192) is DENIED.
Hansen holds that, "a prisoner's request for access to the court records of his underlying criminal conviction is premature prior to the filing of a collateral attack on that conviction. . . ." 956 F.2d at 247, n. 3. More particularly,Hansen states:
We do not agree, however, that this right extends to access to the records for the purpose of preparing a collateral attack on a conviction. We hold that a request by a prisoner for access to the court files of his underlying criminal conviction is premature prior to the filing of a collateral attack on that conviction; a prisoner is entitled to access to the court files only after he has made a showing that such files are necessary to the resolution of an issue or issues he has presented in a non-frivolous pending collateral proceeding.956 F.2d at 248.
ORDERED in Tampa, Florida.
James Terry's second or successive motion to vacate sentence pursuant to 28 U.S.C. § 2255 challenges the validity of his federal conviction for a distribution of heroin that resulted in death, for which offense Terry was sentenced to life imprisonment. The United States filed its response (Doc. 10) and Terry filed a reply (Doc. 11), which he later supplemented (Doc. 12). The arguments of the parties and the record demonstrate that the motion should be denied.
A prefatory observation: Terry's "second or successive motion" under § 2255 is completely without merit and based on a fundamental misconception by Terry, who complains that he was sentenced as a "career offender," notwithstanding that one of the two qualifying convictions supporting his "career offender" status was inaccurrately reported in the presentence report.However, Terry was NOT sentenced as a "career offender." The Probation Office discarded "career offender" status because Terry's guidelines score (40) was higher that his "career offender" score (37). As the presentence report states:
Chapter Four Enhancements: The defendant is a career offender as defined in USSG § 4B1.1, since he was 27 when he committed the instant offense; the offense of conviction is a felony controlled substance offense; and the defendant had at least two prior felony convictions of either a crime of violence or a controlled substance offense. These consisted of sentences for felony controlled substance offenses of Conspiracy to Distribute Marihuana, Case No. 93-GS-34-850, imposed March 18, 1994 (paragraph 38); and Possession with Intent to Distribute (Marihuana), Case No. 94-15761CFAWS, imposed May 30, 1996 (paragraph 40). Since the statutory maximum is Life the total offense level becomes 37. However, the base offense level of 40 will be used since it is greater.
This conviction for possession with intent to distribute marihuana was actually only simple possession.
Presentence Report, ¶ 27 at 4, Terry's Exhibit 8.
In other words, assuming the Probation Office mistakenly attributed an offense to Terry in determining the career offender score when he was actually not a "career offender," Terry suffered no prejudice because the "career offender" score wasdiscarded. Terry was sentenced as a category six, offense level forty offender, without any reference to "career offender" status, because the latter yielded a lesser score. The details follow.
The Conviction and Direct Appeal
Terry was indicted in Count One of "knowingly and intentionally distribut[ing] a quantity of heroin, a schedule I controlled substance, and as a result of the use of the substance, death resulted to Justin Hayden and George Bakun." Terry agreed in writing to plead guilty "to Count One of the Indictment." Plea Agreement, ¶ 1 at 1 (Doc. 19). Further, the plea agreement contained the following undisputed facts:
On March 14, 1997, in Hillsborough County, Florida, the defendant delivered heroin to Demian Gordon who in turn delivered the heroin to Justin Hayden and George Bakun. As a result of their use of this heroin, Justin Hayden and George Bakun died.
Plea Agreement, ¶ 9 at 16 (Doc. 19). Terry entered his guilty plea on October 28, 1997. An adjudication of guilt was entered on December 6, 1997, and sentencing was scheduled for March 4, 1998 (Doc. 28). Sentencing was re-scheduled for May 13, 1998 (Doc. 30), and again for July 14, 1998 (Doc. 34). While awaiting sentencing, Terry was free on bond and, as part of the plea agreement, he was assisting the United States in hopes of receiving a § 5K1.1 reduction in sentence. On July 8, 1998, the week before sentencing, the United States filed its § 5K1.1 motion and recommended a four-level reduction (Doc. 35). However, although court assembled the morning of sentencing, Terry absconded. A bench warrant was issued for Terry's arrest (Doc. 37).
Several months later Terry was located in Mexico and was returned to the United States by law enforcement. Sentencing was re-scheduled for November 12, 1998 (Doc. 44). Owing to Terry's absconding, among other things, the United States withdrew its § 5K1.1 motion, and Terry's offense level consequently increased by two points, which resulted in a total offense level of forty. Terry's sixteen criminal history points placed him in criminal history category six. An offense level of forty and a criminal history category six yields a sentencing range from 360 months to life. Terry was sentenced to life; he appealed.
Three months after sentencing and with his direct appeal pending, in early 1999 Terry filed his first § 2255 motion to correct, reduce, or vacate sentence (Doc. 63), which motion he later supplemented (Doc. 65). The particular allegations of this premature motion, filed nearly six years ago, include the same allegations on which Terry now relies in the pending second or successive motion to vacate sentence. Specifically, Terry argued in 1999 in the first § 2255 that the 1998 presentence report incorrectly scored two convictions against him:
The Defendant submits that he is not the person that was convicted in Case No. 90-8155CFAWS, and did not subsequently violate the associated probation in that case. See Presentence Report (PSR) (November 4, 1998, p. 6, ¶ 34.
The Defendant submits that he did no receive a sentence of imprisonment of at least 60 days in Case No. 92-23021MMAWS. See PSR, p. 6, ¶ 36.
Defendant's Supplement to Motion to Correct, Reduce or Vacate Sentence, ¶¶ 3, 4 at 1 (Doc. 65). The motion was denied (Doc. 74) for lack of jurisdiction because the direct appeal was pending.
Affirming the district court's allowing withdrawal of the § 5K1.1 motion by the United States, the circuit court rejected each of the claims in Terry's direct appeal and stated: "although [Terry] had provided substantial assistance to law enforcement following his arrest and indictment, Terry had absconded, attempted to bribe a deputy Marshal, continued to use drugs, and did not cease his criminal activity." Order at 3 (Doc. 75).
The circuit court identified Terry's claims as follows: "(1) that his guilty plea was involuntary; (2) that the United States breached the plea agreement when it withdrew its section 5K1.1 motion, objected to his request to be sentenced at the low end of the guideline range, and failed adequately to inform the court of his cooperation; (3) that the court was required to sentence him in accordance with the plea agreement or allow him to withdraw his guilty plea; (4) and that the court erred when it denied his request for an offense level adjustment for acceptance of responsibility." Order at 3 (Doc. 75).
Terry's Second § 2255 Motion to Vacate Sentence
After dismissal of his first § 2255 motion and after his unsuccessful appeal, Terry filed through retained counsel, in December, 2000, another motion to vacate sentence pursuant to 28 U.S.C. § 2255 (Doc. 78), in which he asserted seven grounds, but the motion failed to include a challenge based on the claimed inaccuracies in the 1998 presentence report identified in the earlier, premature 1999 motion to vacate (Doc. 65). The United States answered (Doc. 88), and Terry was granted leave to file a reply (Doc. 93). Approximately five weeks later Terry's counsel filed a "Notice of Intent" (Doc. 94), claiming an intent to file a reply (but including no schedule). Two months later Terry filed a letter (Doc. 96) outlining his attempts to persuade retained counsel to challenge the presentence report. Seven weeks later, still without the promised reply from Terry, the district court reviewed the motion to vacate sentence and rejected (Doc. 97) the asserted claims. In sum, the Court extended to Terry the five months from March 26 until August 22, 2001, in which to file a reply (the allowance of which is discretionary, in any event), failing which the Court disposed of the motion.
The identified grounds were as follows: (1) the plea was not knowing, intelligent, or voluntary; (2) the sentence was invalid because it was based on a fact (death) not found beyond a reasonable doubt as required by Apprendi; (3) counsel was ineffective for representing to Terry that he would not get a life sentence, but would receive a sentence of three or four years; (4) counsel was ineffective for failing to move for a downward departure based on the victim's conduct; (5) Terry was actually innocent of distribution of heroin; (6) the statute under which Terry was convicted is unconstitutional because it imposes strict liability; and (7) the sentence was enhanced to life because one of the victims was the son of a secretary who had been assigned to the prosecuting supervisor in the United States Attorney's Office.
A week after entry of judgment, Terry submitted another letter (Doc. 99) alleging attempts to persuade retained counsel to reply to the United States's response and to raise the claimed inaccuracies in the presentence report. Terry, now pro se, filed a motion for reconsideration (Doc. 102) in which he claimed inaccuracies in the presentence report — claims indistinguishable from the claims he now presents in the pending second or successive motion to vacate. The motion was denied simultaneously with this Court's denial of a certificate of appealability (Doc. 106). On January 2, 2002, the circuit court likewise declined issuance of a certificate of appealability (Doc. 109). More than a year later, in March, 2003, Terry requested permission from the circuit court for leave to file a second or successive § 2255 motion.
The Second or Successive § 2255 Motion to Vacate
The circuit court granted Terry permission to file a second or successive motion based on the following determination:
In his application, Terry indicates that he wishes to raise the following claims in a second or successive § 2255 motion: (1) newly discovered evidence demonstrates that he was erroneously sentenced as a career offender, pursuant to U.S.S.G. § 4B1.1, based on two prior felony convictions that he did not commit and three other charges that were "altered"; (2) he was not provided the opportunity to review the presentence investigation report ("PSI"), as required under Fed.R.Cri.P. 32(c)(3)(A) and 18 U.S.C. § 3552; and (3) his counsel was ineffective because he failed to object to the career-offender enhancement and failed to review the amended PSI with Terry. In support of his claims, Terry provides, inter alia, documents dated 2002 from the U.S. Probation Office acknowledging that some of the prior convictions on which Terry's career-offender sentence was based may not have been committed by him.
Order at 1-2 (Doc. 112).
As identified in the circuit court's order, Terry's first ground challenges his sentence as a career offender, the second ground alleges he was denied an adequate opportunity to review the presentence report, and the third ground alleges that counsel was ineffective based on the allegations in the first and second grounds. Each of these asserted claims questions the validity of only the sentence, but not the underlying conviction. The test for granting leave to file a second or successive motion is whether the "newly discovered evidence . . . if proven . . . would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense." 28 U.S.C. § 2255 (emphasis added). See In re Dean, 341 F.3d 1247, 1248 (11th Cir. 2003) ("Section 2255's newly discovered evidence exception, however, does not apply to claims asserting sentencing error."). See also In re Provenzano, 215 F.3d 1233, 1237 (11th Cir.) ( 28 U.S.C. § 2244(b)(2)(B), which permits the filing of a second or success petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, does not apply to sentencing stage claims), cert. denied, 530 U.S. 1256 (2000). Consequently, Terry's motion for leave to filed a second or successive § 2255 motion, which challenges only his sentence and not his conviction, is facially insufficient.
Terry erroneously represented to the circuit court that his claims are new. Without the district court's record, the circuit court could not detect that Terry has known about these claims since at least February, 1999, when his trial counsel filed a premature motion to vacate sentence (Doc. 63 65). Thus, through due diligence, Terry had access to the documents necessary to challenge the inaccuracies in the presentence report many years ago. Terry's only "new" documentation, obtained in the interim but unavailable earlier, was the Bureau of Prison's opinion that Terry's career offender designation was likely incorrect. But the Bureau of Prison's opinion did not disclose to Terry a new claim. The Bureau of Prisons merely concurred (for reasons unknown, the Bureau of Prisons overlooked the obvious fact that "career offender" status was not the basis for Terry's sentence) in Terry's already formed misconception.
To the extent that this lack of due diligence arguably indicates ineffective assistance of counsel, the claim could and should have been asserted in Terry's prior § 2255 motion. As outlined above, Terry attempted unsuccessfully to persuade his retained § 2255 counsel to challenge the inaccuracies in the presentence report. See earlier discussion at p. 4 regarding letters Terry submitted to the Court pro se. Nevertheless, Terry cannot rely on ineffective assistance of counsel to overcome post-conviction counsel's default. See Coleman v. Thompson, 501 U.S. 722 (no right to counsel in post-conviction proceedings) and Wainwright v. Torna, 455 U.S. 586 (1982) (if no constitutional right to counsel, then no opportunity for ineffective assistance).
Finally, the underlying premise that Terry was sentenced as a career offender, the representation upon which the circuit court relied in authorizing this second or successive § 2255 motion, is wrong. Terry was not sentenced as a career offender. Because Terry's total offense level (40) based on his criminal offense was greater than the offense level based on career offender status (37), Terry was sentenced pursuant to § 2D1.1 (criminal offense level) and not § 4B1.1 (career offender provision). Terry's entire motion is similar to the proverbial house-of-cards; remove one card and the entire house falls. Consequently, Terry's argument that convinced the circuit court to grant leave to file a second or successive § 2255 motion was based on a fundamental misstatement.
Paragraph 27 of Terry's presentence report, states that Terry would qualify as a career offender based on two prior convictions. Terry argues, and the United States concedes (Response at 6, Doc. 10), that the presentence report, in demonstrating the career offender calculation, incorrectly attributes to Terry a conviction for possession with intent to distribute marihuana (the conviction was simple possession). Terry argues, and the United States concedes (Response at 7, Doc. 10), that in addition to the erroneous career offender calculation, the presentence report also incorrectly attributes to Terry a conviction for grand theft (actually committed by a different individual with the same name).
Terry's Exhibit 8 filed in support of his § 2255 motion.
The presentence report states in ¶ 40 that the Hillsborough County conviction in 94-15761CFAWS included three counts: possession of marihuana, possession with intent to distribute marihuana, and possession of paraphernalia. To the contrary, Terry's Exhibit 4 shows that he was not charged with possession with intent to distribute. The presentence report was not accurate.
The presentence report states in ¶ 34 that Terry was convicted of grand theft in Hillsborough County in 1990. To the contrary, Terry's Exhibit 3 shows that he is not the James Michael Terry who was convicted of that grand theft. The presentence report was not accurate
However, as stated, these inaccuracies are inconsequential to Terry's sentence because he was not sentenced as a career offender. Terry is a category five offender without these two disputed convictions. The applicable sentencing range is 360 months to life at offense level forty in criminal history categories six, five, four, and three. Disregarding the two disputed convictions reduces the criminal history category to five — but the same life results. Terry's rich criminal history fully supports the life sentence in criminal history category five (or four or three). As the district court told Terry at sentencing:
I have sentenced you where I have for the reasons I have stated, specifically because of the two deaths involved, your absconding, your record, your intractability, and, frankly, your manifest lack of rehabilitation or even contrition.
For example, Terry continued the sale of drugs while in Mexico and attempted to bribe the United States Marshal to effect his freedom after he was taken into custody in Mexico.
Transcript of Sentencing at 93 (Doc. 58). Again, even adjusting Terry's criminal history points as he requests affects no alteration in his possible range of sentence (360 to life).
According to the presentence report, Terry scored 16 criminal history points. This total erroneously included 2 points for the grand theft conviction that was committed by a different individual with the same name. See ¶ 34 of the presentence report. This total also included 2 points pursuant to § 4A1.1(b) based on the erroneous representation that Terry received a sentence or more than 60 days for a conviction of possession with intent to distribute marihuana. See ¶ 40 of the presentence report. Consequently, correcting Terry's criminal history points to 12 lowers him to a category five, but the range of sentence is unaffected by the correction.
Opportunity to Review the Presentence Report
The circuit court also granted Terry leave to file a second or successive § 2255 motion based on a claim that "he was not provided the opportunity to review the presentence investigation report ("PSI"), as required under Fed.R.Crim.P. 32(c)(3)(A) and 18 U.S.C. § 3552". Order at 2 (Doc. 112). This claim is refuted by the record.
Terry was the subject of four presentence reports regarding the sentencing in this action: December, 1997, February, May, and November, 1998. The inaccurate career offender calculation and erroneous criminal history representation that Terry challenges in the second or successive § 2255 motion, rejected above because the errors were inconsequential to Terry's sentence, were reported in the same manner in both the original and the final presentence reports. The original presentence report was prepared eleven months before Terry was sentenced. Consequently, Terry's argument that he "had the PSI for only a few minutes to realize that there were inaccuracies contained within it," Memorandum in Support of Motion for Second or Successive 28 U.S.C. § 2255 at 10 (Doc. 1), is a blatant misrepresentation of the facts.
Compare December 9, 1997, Presentence Report, ¶ 26 at 4 (Terry's Exhibit 7) with November 4, 1998, Presentence Report, ¶ 27 at 4 (Terry's Exhibit 8) (the inaccurate career offender calculation), and December 9, 1997, Presentence Report, ¶ 39 at 7 (Terry's Exhibit 7) with November 4, 1998, Presentence Report, ¶ 40 at 7 (Terry's Exhibit 8) (erroneous criminal history representation).
Terry represents that during the sentencing hearing he advised the district court that he had not discussed the presentence report with his counsel. Placed in proper context, the record shows that Terry's response was not the emphatic denial he represents. In fact, both Terry and his defense counsel confirmed that they had discussed the report.
The Court: All right. Well, let me ask one or the other or both of you if you have had an opportunity to review and evaluate the presentence report on behalf of Mr. Terry?
Mr. Fernandez [defense counsel]: Yes, we have, Your Honor.
The Court: All right. Mr. Terry, have you seen the presentence report?
The Defendant: Yes, sir.
The Court: Have you discussed it with your counsel?
The Defendant: Not really.
The Court: You have not?
The Defendant: Not really.
Mr. Fernandez: We have both gone through — I have gone through the PSI with Mr. Terry in its entirety. The addendum to the PSI is merely one page, which I have explained to him, which reflects a potential increase in his score for failing to accept responsibility and for obstruction of justice.
The Court: Right
Mr. Fernandez: Those are the only changes in the PSI. And I have gone through those changes with Mr. Terry. But the original PSI, I think both Mr. Farmer and I at different times went through the PSI with him.
The Court: Is that right, Mr. Terry?
The Defendant: Yes.
The Court: Do you generally understand the presentence report? Without respect to whether you agree with it or not, do you understand it?
The Defendant: Yes, sir.
Transcript of Sentencing at 5-6 (Doc. 58). Terry's contention that he did not have an adequate opportunity to review the presentence report is specious.
Accordingly, the motion to vacate sentence pursuant to 28 U.S.C. § 2255 (Doc. 1) is DENIED. All other pending motions are DENIED as moot (Doc. 13, 14, 15 17). The Clerk shall enter a judgment against James Terry and CLOSE this action.
ORDERED in Tampa, Florida.