United States District Court, E.D. Tennessee, Greeneville
MEMORANDUM OPINION AND ORDER
RONNIE GREER UNITED STATES DISTRICT JUDGE.
the Court is a “Motion Under 28 U.S.C. § 2255 To
Vacate, Set Aside, Or Correct Sentence By A Person In Federal
Custody, ” [Doc. 399], filed by Richard Gaudio,
(“petitioner” or “Gaudio”). The
United States has responded in opposition to the motion,
[Doc. 409], and the matter is ripe for disposition. The Court
has determined that the files and records in the case
conclusively establish that Gaudio is not entitled to relief
under § 2255 and no evidentiary hearing is necessary.
For the reasons which follow, petitioner's motion will be
DENIED and the case DISMISSED.
Factual and Procedural Background
was charged in six counts of a superseding indictment
returned by a federal grand jury on December 13, 2011, [Doc.
98]. He was charged in Count 1 with conspiracy to distribute
and possess with intent to distribute at least five kilograms
of cocaine in violation of 21 U.S.C. §§ 846,
841(a)(1) and 841(b)(1)(A); in Counts 29, 30 and 31 with
distributing cocaine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C); in Count 32 with possession with
intent to distribute cocaine in violation of 21 U.S.C. §
841(a)(1) and (b)(1)(C); and in Count 33 with possessing a
firearm in furtherance of a drug trafficking offense in
violation of 18 U.S.C. § 924(c)(1)(A). After a three day
jury trial, petitioner was convicted on all counts, although
of a lesser included charge, i.e., conspiracy to distribute
and possess with intent to distribute less than 500 grams, as
to Count 1. [Doc. 241]. Sentencing was set for January 7,
2013 and a presentence investigation report
(“PSR”) was ordered.
post-trial motion for judgment of acquittal as to Count 1,
[Doc. 243], was denied, [Doc. 320], and, after a continuance
at the request of petitioner, [Docs. 313, 316], a sentencing
hearing was conducted on March 27, 2013, [Doc. 352]. The
Court overruled an objection by petitioner to the guideline
range calculation in the PSR and subsequently adopted the
PSR. Petitioner's criminal history category was I; his
total offense level was 20 for counts 1, 29, 30, 31 and 32;
and the resulting advisory guideline range was 33-41 months
of imprisonment. Count 33 carried a 60-month mandatory
minimum consecutive sentence and the total advisory guideline
range was 93-101 months. [PSR, ¶¶ 33, 34, 40 and
58]. Petitioner was sentenced to a term of imprisonment of 93
months, the bottom of the advisory guideline range, [Doc.
352]. Judgment was entered on April 2, 2013, [Doc. 353].
Petitioner filed a notice of appeal on April 9, 2013, [Doc.
354], and the Sixth Circuit affirmed this Court's
judgment on April 17, 2014, [Doc. 393]. The instant §
2255 motion was timely filed on October 14, 2014, [Doc. 399].
recitation of the facts established at trial is not necessary
to the resolution of the single issue raised in
petitioner's § 2255 motion. The facts relevant to
the motion were set out in the Sixth Circuit's order as
Gaudio argues on appeal that the trial court abused its
discretion in failing to answer a juror question regarding
conspiracy. During jury deliberations, the jury sent the
court the following question:
In relation to charge # 3, is it appropriate for us to
consider whether a conspiracy existed independent of the
original conspiracy charged? By this we mean is it
appropriate for us to consider whether the defendant was part
of a new conspiracy or a second conspiracy of his own making?
The court discussed the question with the parties, stating
that it was not sure what the jury meant by “charge
#3.” Gaudio, through counsel, stated that the jury
might have been thinking about the “conspiracy under
500 grams” listed as a third option on the jury verdict
form and that it would not have made sense for the question
to be about the third “actual charge” against
Gaudio, because it involved “one of the sales” of
cocaine. Gaudio then posited that the jury might have been
thinking that Gaudio had his own independent conspiracy
involving less than 500 grams and was asking whether it could
consider that in Gaudio's conspiracy charge. The court
responded that it “almost seemed as if the jury was
asking about multiple conspiracies. The court noted that it
had not given a charge about multiple conspiracies, and if it
had, the charge would have stated clearly that even if Gaudio
was a member of another conspiracy, the jury could only find
him guilty if he was a member of the conspiracy charged in
the indictment. However, the court stated that, because of
the question's wording and the uncertainty involved, the
court did not think it could do anything except tell the jury
that it did not understand the question and thus could not
answer it. The court stated further that although the jury
was probably referring to charge # 3 on the verdict form, the
court did not know what the jury meant by a conspiracy
independent of the original conspiracy or a second conspiracy
of Gaudio's own making.
Gaudio stated, “I think perhaps the instruction you
gave about the multiple conspiracies might clear it up,
that's at least how I read this; but, you know, we're
not certain.” After further discussion, the court
stated that if the jury was really asking about whether it
could find Gaudio guilty of a conspiracy not charged in the
indictment, the answer would be no, but the court would be
speculating as to whether that was the question being asked
by the jury. The court then proposed the following answer:
“Members of the jury: Your precise question is unclear
to the court. At this time I cannot give you any instructions
beyond what's already been given. You have a copy of the
court's instructions and have the verdict form.”
When asked whether the answer was “[a]ll right, ”
both parties answered affirmatively.
[Doc. 393, at 2-3].
Standard of Review
Court must vacate and set aside petitioner's sentence if
it finds that “the judgment was rendered without
jurisdiction, or that the sentence imposed was not authorized
by law or otherwise open to collateral attack, or that there
has been such a denial or infringement of the constitutional
rights of the prisoner as to render the judgment vulnerable
to collateral attack, . . .” 28 U.S.C. § 2255.
Under Rule 4 of the Governing Rules, the Court is to consider
initially whether the face of the motion itself, together
with the annexed exhibits and prior proceedings in the case,
reveal the movant is not entitled to relief. If it plainly
appears the movant is not entitled to relief, the court may
summarily dismiss the § 2255 motion under Rule 4.
defendant files a § 2255 motion, he must set forth facts
which entitle him to relief. Green v. Wingo, 454
F.2d 52, 53 (6th Cir. 1972); O'Malley v.
United States,285 F.2d 733, 735 (6thCir.
1961). “Conclusions, not substantiated by allegations
of fact with some probability of verity, are not sufficient
to warrant a hearing.” O'Malley, 285 F.2d
at 735 (citations omitted). A motion that merely states
general conclusions of law without substantiating allegations
with facts is ...