United States District Court, M.D. Tennessee, Nashville Division
A. TRAUGER U.S. DISTRICT JUDGE.
before the court is the Defendant's Motion To Compel The
Government To File A Rule 35(b) Motion To Reduce
Defendant's Sentence Due To Provision Of Extraordinary
Assistance In the Investigation And Prosecution Of Dangerous
Crime (Docket No. 788), along with supporting briefs and
exhibits (Docket Nos. 789, 791, 796, 802, 803, 805, 856,
875). The Government has filed briefs and exhibits in
response (Docket Nos. 799, 815, 846, 848, 884) to the Motion.
The court held an evidentiary hearing in this case on
December 6, 2017. For the reasons set forth herein, the
Defendant's Motion To Compel (Docket No. 788) is DENIED.
The Defendant's Conviction, Sentencing, and
Defendant was one of 12 defendants named in successive
indictments charging drug trafficking and money laundering
offenses in this case, which was originally assigned to
now-retired Judge Thomas A. Wiseman, Jr. (Docket Nos. 12, 33,
102, 407). On November 29, 2000, the Defendant pled guilty,
through a Plea Agreement, to participating in a cocaine
trafficking conspiracy and a money laundering conspiracy.
(Docket Nos. 474, 552). Judge Wiseman subsequently sentenced
the Defendant to a term of life imprisonment on the drug
trafficking count, and to a concurrent sentence of 20 years
on the money laundering count. (Docket Nos. 545, 553, 568).
The Sixth Circuit dismissed the Defendant's direct appeal
based on a Plea Agreement provision in which he waived his
right to appeal. (Docket No. 636). Robert Marlow represented
the Defendant throughout most of the trial court proceedings.
(Docket Nos. 316, 596).
Defendant subsequently filed a collateral action under 28
U.S.C. Section 2255, seeking to vacate his sentence. (Case
No. 3:03cv00094); Paul Allen Woods v. United States,
398 Fed.Appx. 117 (6th Cir. Sept. 23, 2010). Judge
Wiseman presided over the early stages of the Section 2255
case, denying two of the Defendant's three claims.
(Docket Nos. 24, 25 in Case No. 3:03cv00094). In ruling on
those claims, Judge Wiseman issued a decision in which he
recounted the Defendant's conduct during the criminal
Petitioner has appeared before this Court on numerous
occasions and this Court has found that Petitioner
pervasively obstructs justice. Petitioner lied under oath to
the grand jury and suborned perjury when he attempted to get
two witnesses to lie at his sentencing hearing.
(Docket No. 24, at 2, in Case No. 3:03cv000094 (footnote
omitted); Docket No. 799-4). Judge Wiseman subsequently
granted the Defendant's motion to recuse himself. (Docket
Nos. 40, 41 in Case No. 3:03cv00094). The case was then
randomly reassigned to now-retired Judge William J. Haynes,
Jr., who considered the Defendant's third claim. (Docket
Nos. 41, 121 in Case No. 3:03cv00094); (Docket No. 799-5).
the third claim, the Defendant alleged that Assistant United
States Attorney (“AUSA”) Sunny Koshy and Drug
Enforcement (“DEA”) Agent James Goodman allowed
him to have sexual intercourse in the DEA conference room
with one of his girlfriends, Tracy Buford. Paul Allen
Woods v. U.S., 398 F. Appx, at 119-24. The Defendant
claimed this occurred multiple times during the breaks of his
proffer sessions and that his attorney, Mr. Marlow, was
present for one of the encounters. Id. The Defendant
argued that the Government engaged in this conduct to
improperly influence him to enter a guilty plea. Id.
holding an evidentiary hearing, Judge Haynes denied the
claim, concluding as follows:
As to these factual disputes, the Court first credits the
testimony of Sunny Koshy, that he was unaware of and did not
authorize or condone any of Woods's private visits or
sexual contact with Buford. Goodman actually agreed to
Woods's brief visits with Buford. Although Woods and his
girlfriend had some sexual contact on these visits, the Court
credits testimony of Marlow who was in the room at the time
of most of these visits, that Woods and his girlfriend did
not have sexual intercourse. According to Marlow, Woods and
his girlfriend had only a few minutes in the small DEA
conference room and sexual intercourse did not occur. There
may have been some banter between Woods, his girlfriend and
Goodman, but the Court finds that the banter of the sexual
nature described by Woods and his girlfriend, did not occur.
(Docket No. 121, at 10, in Case No. 3:03cv94); Woods v.
U.S., 398 Fed.Appx. at 122. Judge Haynes determined that
there was no causal connection between the Defendant's
decision to plead guilty and his visits with Buford.
Id., at 127. The Sixth Circuit affirmed on appeal,
and the Supreme Court denied the Defendant's petition for
writ of certiorari. (Docket Nos. 121, 122, 154, 157 in Case
No. 3:03cv00094); Id., at 128.
Defendant was represented by William Walton during a portion
of the Section 2255 proceedings. (Docket No. 80 in Case No.
3:03cv00094). Mr. Walton was replaced by Michael V. Thompson,
who was subsequently replaced by Richard L. Tennent. (Docket
Nos. 83, 125, 126 in Case No. 3:03cv00094). Mr. Tennent
represented the Defendant on appeal of the Section 2255 case.
(Docket No. 154 in Case No. 3:03cv00094).
The Motion To Compel
April 27, 2012, the Defendant, through Mr. Tennent, filed the
pending Motion To Compel, in which he requested that the
court compel the Government to file a Rule
35(b) motion to reduce his sentence, based on
the substantial assistance he provided in a criminal
prosecution in the Eastern District of Kentucky, and
otherwise, since his incarceration. The Defendant pointed out
that AUSA Patrick Molloy, from the Eastern District of
Kentucky, had recommended to the United States Attorney for
this District that a Rule 35 motion be filed on his behalf.
The recommendation, according to the Defendant, was based on
his testimony as a crucial trial witness in the prison murder
prosecution of Dwaune Gravley, who was a violent felon and
the head of a violent prison gang.
Judge Wiseman recused himself, the case was randomly
reassigned to now-retired Judge Todd J. Campbell. (Docket No.
794). Judge Campbell denied the Motion To Compel in a
Memorandum and Order (Docket No. 807) issued on October 18,
2012, which provides, in pertinent part, as follows:
In support of his request that the Court compel the
Government to file such a motion, the Defendant cites the
Sixth Circuit's decision in United States v.
Davenport, 465 Fed.Appx. 500, 2012 WL 688508 (6th Cir.
Mar. 5, 2012) and the Supreme Court's decision in
Wade v. United States, 504 U.S. 181, 112 S.Ct. 1840,
118 L.Ed.2d 524 (1992). In Davenport, the court
outlined the role of the district court in considering the
prosecution's failure to file a substantial assistance
As the Supreme Court has clearly established, ‘federal
district courts have authority to review a prosecutor's
refusal to file a substantial-assistance motion and to grant
a remedy if they find that the refusal was based on an
unconstitutional motive. Thus, a defendant would be entitled
to relief if a prosecutor refused to file a
substantial-assistance motion, say, because of the
defendant's race or religion.' Wade v. United
States, 504 U.S. 181, 185-86, 112 S.Ct. 1840, 118
L.Ed.2d 524 (1992). A defendant is also entitled to relief if
the prosecutor's refusal to file a substantial-assistance
motion is not rationally related to any legitimate Government
end. Chapman v. United States, 500 U.S. 453, 464-65,
111 S.Ct. 1919, 114 L.Ed.2d 524 (1991). However, the
defendant has the burden of making a substantial threshold
showing: ‘a claim that a defendant merely provided
substantial assistance will not entitle a defendant to a
remedy or even to discovery or an evidentiary hearing. Nor
would additional but generalized allegations of an improper
motive.' Wade, 504 U.S. at 186, 112 S.Ct. 1840.
Davenport, 465 Fed.Appx. at 503-04.
The Government's Response indicates that the reason for
its refusal to file a substantial assistance motion on the
Defendant's behalf is the Defendant's breach of his
plea agreement; failure to accept responsibility; efforts to
obstruct justice; perjury and the making of false
allegations; the seriousness of the Defendant's criminal
conduct; public safety factors; and lack of timely, full, and
As for the Defendant's efforts to obstruct justice and
perjury, the Government cites Judge Wiseman's statement
at sentencing that he would have required the Government to
file a substantial assistance motion at that time “. .
. were it not for his perjured testimony before the grand
jury and his attempted [subornation] of perjury.”
(Docket No. 799-2, at p. 10 of 12). The Government also cites
Judge Wiseman's statement at a hearing on the Section
2255 motion describing the Defendant:
[Woods] has appeared before this Court on numerous occasions
and this Court has found that Petitioner pervasively
obstructs justice. Petitioner lied under oath to the grand
jury and suborned perjury when he attempted to get two
witnesses to lie at his sentencing hearing.
Applying the standard set forth in Davenport and
Wade to the record in this case, the Court concludes
that the Government's refusal to file a substantial
assistance motion is not based on an unconstitutional motive,
and is rationally related to a legitimate Government end. The
Government's refusal is not unwarranted given the
Defendant's perjury and obstruction of justice, the
finding that his Section 2255 testimony was lacking in
credibility, and that he has yet to fully disclose the
details of his own past criminal conduct. Accordingly, the
Court declines to compel the Government to file a substantial
assistance motion, or to hold an evidentiary hearing. The
Motion To Compel is DENIED.
(Docket No. 807, at 2-5)(footnote omitted).
Defendant appealed and, on August 19, 2013, the Sixth Circuit
issued a decision vacating Judge Campbell's order and
remanding the case for further proceedings. (Docket No. 821).
On appeal, the Defendant argued that the Government had
“bargained away” its discretion to file a Rule 35
motion through the actions of AUSA Molloy. (Id., at
8). The court rejected the Government's argument that
this claim was waived because the Defendant did not raise it
in the district court: “Instead, we address the issue
and conclude that, given the peculiarities of this case, the
district court's denial of Woods's motion to compel
must be vacated and the case remanded for further
proceedings.” (Id., at 10). The court
explained that its conclusion was based on the following:
This result is appropriate here for several reasons. First,
the district court did not address this argument in its
opinion beyond stating that Woods ‘points out' the
existence of the letter. R. 807 (D. Ct. Op. at 2) (Page ID #
847). Thus, it appears that the district court might have
improperly applied the law by failing to recognize that the
government cannot refuse to file a Rule 35(b) motion if it
bargained away its discretion to do so. See
Benjamin, 138 F.3d at 1073-74. Second, although the
colloquy between AUSA Molloy and Woods appears to be evidence
that the government did not bargain away its discretion to
file a Rule 35 motion prior to Woods's testimony, we
agree with Woods that it is ambiguous enough that it does not
control the outcome of this case. Furthermore, it seems
unlikely that AUSA Molloy would have made an unconditional
promise to file a Rule 35 motion prior to weighing the value
of Woods's testimony (which might have included waiting
for the jury's verdict). Therefore, it is possible that
AUSA Molloy promised to file a Rule 35 motion after Woods
testified. Finally, whether the government actually bargained
away its discretion is an issue of fact that can be resolved
with minimal discovery and a hearing. We leave the contours
of discovery and a hearing to the district court, but we
note, as Woods did in his response to the government's
opposition to his motion to compel, that the letter from the
U.S. Attorney's Office for the Eastern District of
Kentucky to the U.S. Attorney's Office for the Middle
District of Tennessee and testimony from AUSA Molloy could
prove controlling. For these reasons and the unique facts
presented by this case, we vacate the district court's
denial of Woods's motion to compel and remand for further
(Id., at 10-11).
appeals court then considered the Defendant's argument
that he had made a substantial showing that the
Government's refusal to file a Rule 35 motion was based
on an unconstitutional motive - retaliation for filing a
Section 2255 action. The court concluded that the case should
be remanded because the district court abused its discretion
in failing to determine whether the Defendant had made such a
Woods requested that the district court ‘grant an
evidentiary hearing where the full basis of the
government's denial can be ascertained, and where the
full extent of Mr. Woods' assistance can be
presented.' R. 789 (Memo in Support of Mot. to Compel at
18) (Page ID # 206). Our precedents make clear that a hearing
is appropriate when ‘[a] defendant ... makes a
substantial threshold showing of an unconstitutional
motive.' Bagnoli, 7 F.3d at 92. Rather than
analyzing whether Woods made a substantial threshold showing,
the district court examined the government's proffered
reasons for refusing to file such a motion. See R. 807 (D.
Ct. Op. at 4-5) (Page ID # 849-850). Thus, the district court
skipped an important determination: whether Woods was
entitled to a hearing based on a substantial threshold
showing that the government's motive was
unconstitutional. Because the failure to make this
determination was an abuse of the district court's
discretion, we vacate the district court's denial of
Woods's motion to compel and remand for further
(Id., at 12).
remand, this matter was set for hearing repeatedly over the
ensuing four years. During that time, the Defendant has been
represented by four successive attorneys: Mr. Tennent,
Kimberly S. Hodde, David L. Cooper, and Robert Lynn Parris.
Mr. Parris currently represents the Defendant. Upon the
retirement of Judge Campbell, the case was randomly
reassigned to the undersigned Judge on December 16, 2016.
Substantial Threshold Showing
explained in the Sixth Circuit's opinion remanding this
case, federal courts have authority to review a
prosecutor's refusal to file a motion for sentence
reduction based on substantial assistance if the
prosecutor's refusal is based on an unconstitutional
motive, like the defendant's race or religion. (Docket
No. 821, at 9-10) (citing Wade v. United States, 504
U.S. 181, 185-86, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992)).
The Sixth Circuit has also held that a defendant is entitled
to relief if the prosecutor's refusal to file a
substantial assistance motion is not rationally related to
any legitimate government end. United States v.
Davenport, 465 Fed.Appx. 500, 503 (6th Cir.
2012). A defendant has a right to a hearing on the issue,
however, only if he makes a “substantial threshold
showing” that he satisfies these standards. (Docket No.
821, at 10); United States v. Bagnoli, 7 F.3d 90, 92
(6th Cir. 1993).
evaluating a prosecutor's motives for refusing to file a
substantial assistance motion, the Sixth Circuit has held
that the existence of an independent, constitutional ground
for the government's refusal precludes a defendant from
making the “substantial threshold showing.”
United States v. Washington, 250 Fed.Appx. 716, 719
(6th Cir. 2007)(citing United States v.
Capps, 140 F. App's 911 (11th Cir.
2005)). Similarly, the Third Circuit has held that, in order
to prove prosecutorial vindictiveness in the refusal to file
a substantial assistance motion, a defendant “must show
that the prosecutor withheld a 5K1.1 motion solely
to penalize him for exercising his [constitutional
right].” United States v. Paramo, 998 F.2d
1212, 1221(3rd Cir. 1993)(emphasis added). See
also United States v. Gomez, 705 F.3d 68, 79
(2nd Cir. 2013)(citing Paramo for this
case, the Defendant initially argued that the
Government's refusal to file a Rule 35(b) motion on his
behalf was motivated by its desire for retaliation for the
Defendant's having filed a Section 2255 case. On appeal,
the Government did not dispute that such a motive would
qualify as an unconstitutional one. (Docket No. 821, at 11 n.
3). The Defendant argues that he has made a
“substantial threshold showing” that the
Government harbored this unconstitutional motive based on the
following: (1) the Defendant was treated in a manner
radically unlike similarly-situated defendants; (2) the
Defendant's false allegations, which are relied upon by
the Government to support its refusal, were made in the
Section 2255 case; and (3) there is no other rational reason
to deny Rule 35 relief to the Defendant. (Docket No. 856).
the first argument, the Defendant contends that he has
provided more and received less than other defendants who
were rewarded with a Rule 35 motion. The Defendant claims
that those similarly-situated defendants are Juan Canela,
Karen Sue Holloway, Sonji Howard and Anthony Bowers.
According to the Defendant, the only factor distinguishing
him from these defendants is his having filed a Section 2255
case. While there appear to be similarities between the
Defendant and his descriptions of these defendants, however,
the court is not persuaded that the only distinguishing
factor between them and the Defendant is his having filed a
Section 2255 case. For example, the Government may have
determined that the Defendant is not similarly situated to
Mr. Canela, Ms. Holloway, and Ms. Howard because they do not
appear to have been found by a judge to have committed
described by the Defendant and as revealed by the court
record, Mr. Bowers' situation is more complicated. Mr.
Bowers was initially denied a Rule 35 sentence reduction by
Judge Campbell because he had engaged in an assault on
another inmate while a Rule 35 motion was pending. (Docket
Nos. 802-6, 802-7). In reaching his decision, Judge Campbell
found Mr. Bowers' testimony about the prison assault not
to be credible. (Docket No. 802-7, at 5 of 9). Several years
later, Mr. Bowers filed a motion for sentence reduction based
on a retroactive sentencing guideline amendment, and the
Government filed a response opposing the defense request for
a sentence below the mandatory minimum imposed by statute.
(Docket No. 802-8; Docket No. 157 in Case No. 3:00cr75).
Judge Campbell held a resentencing hearing and imposed the
mandatory minimum sentence. (Id., at 37). At that
resentencing hearing, Mr. Bowers discussed his journey to
rehabilitation over the previous four years. (Id.,
at 38-42). At the conclusion of that hearing, AUSA Koshy
commented on the apparent change in Mr. Bowers, and Judge
Campbell stated that Mr. Bowers “made some heartfelt
statements” and “[c]ould have a bright future if
he applied himself properly.” (Id., at 43-44).
months later, the Government filed a motion recommending a
sentence reduction for Mr. Bowers below the statutory
mandatory minimum, citing Mr. Bowers' “exemplary
allocution” at the resentencing hearing and his having
testified in a state murder trial without expecting a benefit
in return. (Docket No. 164 in Case No. 3:00cr75). Judge
Campbell granted the motion and reduced Mr. Bowers'
sentence as requested. (Docket No. 169 in Case No. 3:00cr75).
In the court's view, as of the time the Government agreed
to a sentence reduction for Mr. Bowers, his situation was no
longer similar to the Defendant's situation. In comparing
the two, the Government may have determined that, unlike Mr.
Bowers, the Defendant's credibility and rehabilitation
remain in doubt.
the Defendant argues that his filing of a Section 2255 case
motivated the Government to deny his Rule 35 motion because
the false statements it relies on in denying relief were made
by the Defendant in a Section 2255 case. The filing
of a Section 2255 case, however, is not the same as
lying during the course of litigating the case. The
Defendant has not established that making false statements in
a court proceeding is constitutionally-protected conduct.
the Defendant argues that his filing the Section 2255 case
motivated the Government to deny him relief because there is
no other rational reason for it to do so. The record
demonstrates, however, that the reasons articulated by the
Government - the Defendant's breach of his plea
agreement, failure to accept responsibility, efforts to
obstruct justice, perjury and the making of false
allegations, the seriousness of the Defendant's criminal
conduct, public safety factors, and lack of timely, full, and
truthful cooperation - are rational ones and serve the
legitimate goal of deterring such conduct.
the court concludes that the Defendant has failed to make a
substantial threshold showing that the Government's
refusal to file the Rule 35 motion was in retaliation for his
having filed a Section 2255 case. Federal inmates routinely
file Section 2255 cases, and the Defendant has not shown that
the Government felt compelled to punish him simply because he
The Evidence ...