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Gaitor v. United States

United States District Court, E.D. Tennessee

May 24, 2018




         This matter is before the Court on the “Motion To Vacate, Set Aside, Or Correct A Sentence Pursuant to 28 U.S.C. § 2255, ” [Doc. 122], [1] filed by Frank Gaitor (“Gaitor” or “petitioner”). The United States has responded in opposition, [Doc. 126]. On June 16, 2017, the petitioner filed a motion to appoint counsel to determine whether he had “a claim due to the Mathis ruling.” [Doc. 131]. This motion was granted in part and denied in part by this Court: the Court declined to appoint counsel as no evidentiary hearing had been scheduled in the case, and “liberally construe[d] this motion as a supplement to Petitioner's § 2255 motion that seeks relief under Mathis for the reasons set forth therein.” [Doc. 132]. The government responded in opposition, claiming petitioner is not entitled to relief. [Doc. 133]. Therefore, this memorandum opinion will address petitioner's arguments from his original filing, and examine his claim under Mathis v. United States, 136 S.Ct. 2243 (2016).

         The matter is now ripe for disposition. The Court has determined that the files and records in the case conclusively establish that the petitioner is not entitled to relief under § 2255 and, therefore, no evidentiary hearing is necessary. For the reasons which follow, the petitioner's § 2255 motion lacks merit, and the motion will be DENIED.

         I. Procedural and Factual Background

         A sealed indictment was filed on April 12, 2011, [Doc. 1], charging Gaitor and his co-defendant, Myoka Michelle Ingram (“Ingram”) with conspiracy to distribute and possess with the intent to distribute 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) (Count One), and aiding and abetting each other in the distribution of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) (Count Two). Gaitor was also charged with the distribution of a quantity of a mixture and substance containing a detectable amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) on seven identified occasions (Counts Three - Nine).

         On August 18, 2011, counsel for petitioner filed a motion to withdraw as counsel, as a conflict of interest had arisen that would prevent him from representing petitioner. [Doc. 26]. This motion was granted, [Doc. 29], and another attorney was appointed to represent petitioner. However, petitioner filed a pro se motion to appoint new counsel on October 5, 2011, [Doc. 45], and a hearing was held to consider the motion on October 7, 2011. This Court granted petitioner's motion and appointed a new attorney. [Doc. 47]. On October 12, 2011, the Grand Jury returned a Nine-Count superseding indictment as to Gaitor and Ingram. [Doc. 48]. The superseding indictment was nearly identical to the original indictment, but included a longer time frame in the conspiracy charge in Count One: the date listed as the beginning date for the conspiracy was expanded from December 28, 2010, [Doc. 1], to September 2010. [Doc. 48]. Petitioner was never arraigned on the superseding indictment.

         On November 27, 2011, counsel for the petitioner filed both a motion to withdraw as attorney at the direction of the petitioner, [Doc. 53], and a signed plea agreement. [Doc. 56]. This Court held a hearing on November 29, 2011, the day before the petitioner's trial. At the hearing, the petitioner orally withdrew his request to remove his attorney, and expressed an intention to plead guilty rather than proceed to trial. [Doc. 107]. After a lengthy plea colloquy, the defendant pled guilty to Count One of the indictment, with the other Counts dismissed by the government.

         Sentencing proceedings were held on May 31, 2012. Petitioner was sentenced to 188 months imprisonment followed by a 12-year term of supervised release. [Doc. 86]. Petitioner timely appealed. [Doc. 88]. On direct appeal, petitioner raised the following arguments:

1) The district court failed to recognize its ability to depart downward on the basis that Gaitor's criminal history category over-represented his prior crimes; 2) the government filed a notice to enhance sentence pursuant to 21 U.S.C. § 851, in violation of the parties' plea agreement; 3) the career offended designation resulted in a disparate sentence; 4) the court used a prior conviction that no longer qualifies as a controlled substance offense for career offender purposes; 5) his sentence, under the career offender provision, was the result of impermissible double-counting; and 6) his sentence is substantively unreasonable.

[Doc. 114]. The Sixth Circuit rejected these arguments, and found that petitioner's guilty plea, including a valid appellate waiver, was knowing and voluntary. [Id. “Given the district court's colloquy, the validity of Gaitor's plea cannot be challenged in good faith.”]. Petitioner filed a writ of certiorari, which was denied by the U.S. Supreme Court on October 8, 2014. [Doc. 117].Petitioner filed his § 2255 motion on October 2, 2015. [Doc. 122].[2]

         II. Standard of Review

         This 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.

         When a 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 (6th Cir. 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 without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir. 1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D. Tenn. 1996). To warrant relief under 28 U.S.C. § 2255 because of constitutional error, the error must be one of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (citation omitted) (§ 2254 case); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). See also United States v. Cappas, 29 F.3d 1187, 1193 (7th Cir. 1994) (applying Brecht to a § 2255 motion). If the sentencing court lacked jurisdiction, then the conviction is void and must be set aside. Williams v. United States, 582 F.2d 1039, 1041 (6th Cir. 1978), cert. denied, 439 U.S. 988 (1978). To warrant relief for a non-constitutional error, petitioner must show a fundamental defect in the proceeding that resulted in a complete miscarriage of justice or an egregious error inconsistent with the rudimentary demands of fair procedure. Reed v. Farley, 512 U.S. 339, 354 (1994); Grant v. United States, 72 F.3d 503, 506 (6th Cir. 1996), cert. denied, 517 U.S. 1200 (1996). In order to obtain collateral relief under § 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152 (1982).

         Claims other than those of ineffective assistance of counsel are procedurally defaulted if not raised on direct appeal. Bousley v. United States, 523 U.S. 614, 621 (1998); Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001). “In the case where the defendant has failed to assert his claims on direct appeal and thus has procedurally defaulted, in order to raise them in a § 2255 motion he also must show either that (1) he had good cause for his failure to raise such arguments and he would suffer prejudice if unable to proceed, or (2) he is actually innocent.” Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003). See also Bousley, 523 U.S. at 622-23. This hurdle a petitioner faces to excuse procedural default is “intentionally high[, ]… for respect for the finality of judgments demands that collateral attack generally not be allowed to do service for an appeal.” Elzy v. United States, 205 F.3d 882, 884 (6th Cir. 2000). Further, federal inmates are not entitled to relitigate claims that were raised and considered on direct appeal absent an intervening change in the law, or other such extraordinary circumstance. Wright v. United States, 182 F.3d 458, 467 (6th Cir. 1999); Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999).

         III. Analysis and Discussion

         Pursuant to his plea agreement, the petitioner has explicitly waived the right to file a § 2255 motion, except for claims of ineffective assistance of counsel or prosecutorial misconduct not known to him by the time of the entry of judgment. [Doc. 56, ¶ 15(b)]. The shortcomings of counsel about which the petitioner complains would have been known by him before the entry of judgment. A defendant may waive any right, even a constitutional right, if he does so knowingly and voluntarily, and that a waiver provision in a plea agreement is enforceable. See United States v. Fleming, 239 F.3d 761, 263-64 (6th Cir. 2001); United States v. Ashe, 47 F.3d 770, 775-76 (6th Cir. 1995). “[A] defendant's informed and voluntary waiver of the right to collaterally attack a conviction and sentence is enforceable.” In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007); accord Davila v. United States, 258 F.3d 448, 450-52 (6th Cir. 2001); Watson v. United States, 165 F.3d 486, 489 (6th Cir. 1999). Here, because petitioner knowingly and voluntarily waived his right to file a § 2255 motion with few exceptions, and these claims do not fall within one of those exceptions, these claims have been waived. Nonetheless, the Court will address the merits.

Petitioner raises the following grounds for relief in his § 2255 motion:
Ground One: Whether this Court must vacate the petitioner's plea to Count One of the ‘original indictment' in light of the fact that the Court issued a superseding indictment prior to the guilty plea which the petitioner was never arraigned on in violation of due process?
Ground Two: The defense counsel was ineffective for failing to file an appeal of the issues as requested upon the petitioner's claim that the plea was to be placed under advisement pending the receipt of the PSR and thereby could not be accepted at the change of plea hearing[.]
Ground Three: Counsel was ineffective during plea negotiations and unprepared for the potential trial and plea proceedings[.]
Ground Four: Attorney was ineffective by not asking the Court to address the Motion to Withdraw filed.
Ground Five: Attorney failed to appeal the disparity in sentencing between Defendant and Co-Defendant.
Ground Six: Whether the government breached the plea agreement when the government sought an § 851 enhancement after stipulating that the government would not seek the enhancement?

         Finally, petitioner supplemented his motion to “add the Mathis ruling to [his] pending 2255 that was filed.” [Doc. 131]. Each of these grounds will be addressed in turn below:

         Ground One: Due Process Violation

         Petitioner argues that “the Court and the government erred in allowing him to plead guilty to Count One of the original indictment after obtaining a ‘superseding' indictment[, ] thereby nullifying/voiding the original indictment.” [Doc. 122]. He further argues that “the failure to arraign the petitioner on the superseding indictment violates his Fifth and Sixth Amendment rights to due process and notice of charges.” [Id.]. The government, however, argues that petitioner was aware of the existence of the superseding indictment before he pled guilty, and agreed that he wished to plead guilty to the original indictment. [Doc. 126]. The government further states that both indictments include the same substantive charges, with the only difference being an expanded date range during which the conspiracy took place, and argues that petitioner cannot demonstrate that he suffered prejudice. [Id.].

It is clear that this matter was discussed at petitioner's change of plea hearing:
Mr. Smith: One thing, and I apologize, and I don't know if this is even an issue or not, there was a superseding indictment returned on October 12, which did not substantively change any charges. Mr. Gaitor has never been rearraigned on that superseding indictment. I don't even know if it's necessary since it didn't substantively change the charges; but to the extent it did make a change and extend the period of the conspiracy in Count 1 by a couple of months. I just want to bring that to the Court's attention in case that's anything we need to address.
The Court: Well, this plea agreement says he's pleading guilty to the indictment, not the superseding indictment.
Mr. Smith: I realize that right now, so it really makes no different as far as the penalties or the evidence presented that supports the plea.
The Court: …[T]he stipulation of facts in this plea agreement stipulates a conspiracy between December 28, 2010 and March 9, 2011. It seems to me that was the period in the original.
Mr. Smith: That was in the original because I just took the plea agreement that had been sent to Mr. Moore and then Mr. Bowman; so we agree with that, your honor, we're good to go.
The Court: I'm satisfied that he can plead to Count 1 of the original indictment[.] … There's been a lot of discussion among the judges in the District recently about the effect of superseding indictment on a previously pending indictment. I think, I think the answer to that is that both of them are viable documents. … I mean, the superseding indictment doesn't render the original indictment moot[.]
Mr. Smith: Yes, your honor. Well, I think as long as we put ion the record that we've considered it and it's - was a conscious decision as opposed to an oversight that he is pleading guilty to Count 1 of the original indictment.
The Court: All right. And during the break if you and Mr. Lloyd would confer about that further, I don't think there's an issue there[.] …

[Doc. 107 at 6-8]. This discussion took place at the outset of petitioner's change of plea hearing; it is clear that the petitioner had full knowledge of the presence and effect (or lack thereof) of the superseding indictment, yet agreed to plead guilty to Count One of the original indictment. In fact, later during the petitioner's plea colloquy, the petitioner confirmed that he ...

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