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Gray v. United States

United States District Court, M.D. Tennessee, Nashville Division

January 10, 2020

MONTEZ GRAY, Petitioner,


          Marvin E. Aspen United States District Judge

         We have received Petitioner Montez Gray's motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Dkt. No. 1.) Petitioner Gray did not file a reply to the government's response brief on or before the extended deadline of October 12, 2019. (See Dkt. No. 6.)


         Petitioner Gray was charged with being a felon in possession of a firearm and conspiracy to possess with intent to distribute 100 grams or more of heroine in two separate cases. (Pet. to Enter Guilty Plea (Dkt. No. 60.)) Only the charge of being a felon in possession of a firearm is at issue in Petitioner's § 2255 petition. (Pet. Mem. in Support of Pet. Mot. (“Pet. Mem.”) (Dkt. No. 4) at 1.)

         On October 14, 2014, Nashville Police Department officers conducted a traffic stop on a silver Nissan Altimata, in which petitioner was present, for making an improper turn. (Plea Agreement (Dkt. No. 60) ¶ 8(b).) During a search of the vehicle, an officer located a Glock 9mm pistol on the floor board behind the front passenger's seat. (Id.) A records check was conducted on that firearm revealed that it was stolen. (Id.) Federal agents confirmed the firearm was not manufactured in Tennessee and thus was in and affecting interstate commerce. (Id.) Gray was taken into custody and advised of his Miranda rights. (Id. ¶ 8(c).) Gray stated he “had the firearm for approximately one month, that he paid $700 for the firearm, that he had it for protection, and that he had been previously convicted of a felony.” (Id. (emphasis added)) Petitioner was charged with knowingly possessing a firearm having previously been convicted of a crime punishable by imprisonment for a term exceeding one year. (Id. ¶ 8(a).)

         In addition to Gray signing a statement that he knew he was previously convicted of a felony, Petitioner's plea agreement also explicitly incorporated discussion of his prior conviction. The agreement explained Petitioner “is a previously convicted felon” who was “convicted of possession with intent to distribute less than .5 grams of cocaine, a Class C felony, on Juanary 20, 2010, in the Davidson County Criminal Court.” (Id. ¶ 8(d).) Finally, the agreement clarified Petitioner “received a sentence of imprisonment of six years” on that charge. (Id.)

         Petitioner entered a plea of guilty that included terms typical of such a plea. First, Petitioner waived his trial rights, such as the right to a speedy trial, right to a trial by jury, and right to confront witnesses against him. (Id. ¶¶ 6-7.) Second, Petitioner acknowledged he “hereby waives all (i) rights to appeal any issue bearing on the determination whether he is guilty of the crime(s) to which he is agreeing to plead guilty; and (ii) trial rights that might have been available if he exercised his right to go to trial.” (Id. ¶ 24.) Petitioner also “knowingly waiv[ed] the right to appeal any sentence within or below the guideline range.” (Id.) Finally, Petitioner “knowingly waive[d] the right to challenge the sentence imposed in any . . . collateral attack, including, but not limited to, a motion brought pursuant to 28 U.S.C. § 2255 and/or § 2241.” (Id. ¶ 25.)[1] Petitioner did not file a direct appeal in this case. (Gov. Mem. in Opp. to Pet. (“Gov. Mem.”) (Dkt. No. 3) at 3.) Gray filed this petition to vacate his sentence in light of the Supreme Court's decision in Rehaif v. U.S., - U.S. -, 139 S.Ct. 2191 (2019). (Dkt. No. 1.)


         We construe Petitioner's pro se petition liberally. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 2200 (2007) (“A document filed pro se is to be liberally construed, . . . . and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 292 (1976)).); see also Johnson v. U.S., No. 17 C 5753, 2019 WL 3779366, at *2 (6th Cir. Aug. 12, 2019) (quoting Erickson for this proposition). Nevertheless, for the foregoing reasons we deny Petitioner's request for relief in light of the Supreme Court's Rehaif decision.

         I. Plea Waiver

         Gray's plea agreement waives his right to attack his sentence using precisely the method he attempts here. “It is well-settled that a knowing and voluntary waiver of a collateral attack is enforceable.” Slusser v. U.S., 895 F.3d 437, 439 (6th Cir. 2018), cert. denied, 139 S.Ct. 1291 (2019) (citing Watson v. U.S., 165 F.3d 486, 489 (6th Cir. 1999)); see also Vowell v. U.S., 938 F.3d 260, 266-67 (6th Cir. 2019) (reaffirming the general proposition that “subsequent changes in the law did not render an otherwise valid waiver unknowing or involuntary”).[2] A “collateral attack on an illegal sentence does not undermine the knowing and voluntary waiver of any right, even a constitutional right, by means of a plea agreement.” Slusser, 895 F.3d at 439 (quotation omitted). “A voluntary plea agreement ‘allocates risk,' and ‘[t]he possibility of a favorable change in the law after a plea is simply one of the risks that accompanies pleas and plea agreements.'” Id. at 440 (quoting U.S. v. Morrison, 852 F.3d 488, 490 (6th Cir. 2017)). ““By waiving the right to appeal, a defendant assumes the risk that a shift in the legal landscape may engender buyer's remorse.” Id. (quoting Morrison, 852 F.3d at 490). “The subsequent developments in this area of the law do not suddenly make [a defendant's] plea involuntary or unknowing or otherwise undo its binding nature.” Id. (quotation and formatting omitted). “[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review.” Bousley v. U.S., 523 U.S. 614, 621, 118 S.Ct. 1604, 1610 (1998).

         Gray's claim is buyer's remorse of the kind the Sixth Circuit repudiated in Slusser. Gray pled guilty, knowingly and voluntarily waiving his rights to attack the constitutionality of his sentence in his plea. (Plea Agreement ¶ 24-25.) In doing so, Gray assumed the risk that subsequent developments in the law would favor him, trading certainty of a shorter sentence for the slim chance of a positive development in Supreme Court precedent in his favor. Thus, Gray's waiver of his right of appeal as part of his guilty plea prevents him from attacking his guilty plea through a petition for habeas corpus, even when the law changes in his favor. Nothing in Gray's petition, the plea agreement, or the briefing here suggests Gray was in any way coerced into pleading guilty and waiving his right to attack his conviction using a habeas proceeding. Finally, even if Gray wished to make such an argument, he would have needed to do so on direct appeal, which he did not do. See Bousley, 523 U.S. at 621, 118 S.Ct. at 1610. As a result, Gray's habeas petition must be denied as waived.

         II. Substance of Petitioner's Claim

         If petitioner does not challenge the validity of his plea on direct appeal, then he has procedurally defaulted his claim. Bousley, 523 U.S. at 621, 118 S.Ct. at 1610. “[T]he general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. U.S., 538 U.S. 500, 504, 123 S.Ct. 1690, 1693 (2003). Alternatively, the defendant may show he is “actually innocent.” Bousley, 523 U.S. at 622, 118 S.Ct. at 1611. Although claims that are “so novel that [their] legal basis is not reasonably available to counsel may constitute cause for a procedural default, ” claims about the statutory language that have been repeatedly litigated do not qualify. Id. (quotation omitted). In Bousley the Supreme Court declined to except from procedural default petitioner's argument that the federal firearm possession statute's ...

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