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Cole v. United States

United States District Court, W.D. Tennessee, Eastern Division

August 10, 2017

FREDERICK COLE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Cr. No. 1:11-cr-10080-STA-1

          ORDER DISMISSING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          S. THOMAS ANDERSON, CHIEF UNITED STATES DISTRICT JUDGE.

         Before the Court is the amended motion of Petitioner, Frederick Cole, to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (“Amended Petition”). (Am. Pet., ECF No. 8.) For the reasons that follow, the Amended Petition is DISMISSED as untimely.

         BACKGROUND

         On November 9, 2011, a criminal information was filed in this district charging Cole with conspiracy to traffic more than one hundred kilograms of marijuana, in violation of 21 U.S.C. §§ 846. (Information, United States v. Cole, No. 1:11-cr-10080-STA-1 (W.D. Tenn.) (“Cr. Case”), ECF No. 2.) On that same date, the defendant appeared before the Court to waive his right to an indictment and plead guilty to the information. (Waiver, Cr. Case, ECF No. 3; Min. Entry, Cr. Case, ECF No. 5; Plea Agreement, Cr. Case, ECF No. 6.)

         Petitioner was represented by attorney Mark Donahoe throughout a three-day sentencing hearing. The Court heard testimony and argument related, primarily, to the issues of drug quantity and obstruction of justice. (Sent. Hrg. Tr., Cr. Case ECF Nos. 41, 44, 50.) The Court found that, for purposes of establishing Cole's base offense level, the total drug quantity attributable to him fell within the 1000-3000 kilogram range. See 2011 United States Sentencing Commission, Guidelines Manual (“U.S.S.G.” or “Guidelines”), § 2D1.1. The Court also found that Cole's offense level should be increased by two levels for obstruction of justice involving his attempts to threaten federal officials involved in his case. See U.S.S.G. § 3C1.1. After granting a downward departure, the Court sentenced the defendant to 240 months' incarceration, four years of supervised release, and a $100 special assessment. (Judgment, Cr. Case, ECF No. 34.) Judgment was entered on September 4, 2012. (Id.)

         Petitioner subsequently filed a pro se notice of appeal. (Not., Cr. Case, ECF No. 39.) On December 12, 2012, the Sixth Circuit granted the government's motion to dismiss the appeal as untimely. United States v. Cole, No. 12-6392 (6th Cir. Dec. 12, 2012).

         POST-CONVICTION FILINGS AND § 2255 PETITION

         On February 11, 2013, Petitioner filed a motion in his criminal case styled “Judicial Notice of Records and Permission[] to Proceed In Forma Pauperis” (“Motion for Transcripts”). (Mo. Trans., Cr. Case, ECF No. 45.) By his motion, Cole requested “a copy” of his sentencing transcripts “at the expense of the government.” (Id. at 1.) He explained that his attorney had “fail[ed] to mail his transcripts” to him, and that he needed them in order “to file a proper motion for relief pursuant to 18 U.S.C. § 3742 and § 2255.” (Id. at 2.) He “assert[ed] the transcripts contain sentencing violations as depicted in the Supreme Court decision of Shepard v. U.S., 544 U.S. 13 . . . and Townsend v. Burke, 334 U.S. 736, 740-41[, ] . . . where it is error to be sentenced base on inaccurate information.” (Id.) The Court subsequently denied the motion. (Order, Cr. Case, ECF No. 46.)

         On May 20, 2014, Petitioner, through retained counsel, filed his § 2255 Petition. (Pet., ECF No. 1.) He asserted a single ground for relief and supplied no supporting facts:

Ground One: The petitioner received ineffective assistance of counsel, in violation of his Sixth Amendment rights.
Supporting Facts: Present counsel has only recently begun work on this case and would, if it please the Court, reserve the right to file a further amended and supplemental motion more fully setting out the defendant's claim.

(Id. at 4.) The Petition also referenced Petitioner's Motion for Transcripts, characterizing it as Coles' “initial § 2255 motion.” (Id. at 5.)

         In its review of the Petition on October 13, 2014, the Court noted that, despite counsel's statement that he would “further amend[]” the petition, he had not done so. (Order, ECF No. 5 at 1.) The Court therefore ordered Petitioner “to file any amendment or supplement he may have to his § 2255 Motion within twenty-eight days.” (Id.) The Amended Petition was not filed until April 21, 2015, and was filed without leave of Court. (Am. Pet., ECF No. 8.)

         On April 27, 2017, the Court allowed the filing of the Amended Petition nunc pro tunc, granted counsel's motion to withdraw, and ordered the government to respond to the Amended Petition. (Order, ECF No. 12.)

         Although the Amended Petition was prepared and submitted by counsel, the specific factual allegations appear to be Petitioner's own words. (See Am. Pet., ECF No. 8 at 4, 13.) With regard to many of the allegations, it is difficult to discern what, exactly, Petitioner is trying to claim. Although a petition prepared by counsel is not entitled to the same liberal construction reserved for pro se petitions, the Court nevertheless employs some measure of liberality in construing Cole's claims as follows:

         Claim 1: Counsel was ineffective for failing to object to the “inaccurate information” used at sentencing to enhance his offense level under the Guidelines, specifically:

(a) With regard to the drug quantity involved, counsel should have objected to the introduction of false statements attributed to Timothy Davis relating to Petitioner's involvement in the “truck full of drugs.”
(b) With regard to obstruction of justice, counsel should have objected to hearsay evidence, introduced through a law enforcement officer, that two people “accused [Petitioner] of making threats against officials.”
(c) With regard to obstruction of justice, counsel should have objected to the introduction of false statements by co-defendant Angela Bass regarding Petitioner's threats.
(d) With regard to obstruction of justice, counsel should have objected to the testimony of a fellow inmate who described ...

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