Alston v. United States
| Decision Date | 17 April 2023 |
| Docket Number | 3:21-cv-1150-MMH-MCR,3:13-cr-124-MMH-MCR |
| Parties | ANDRE ALSTON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
Petitioner Andre Alston moves to vacate his conviction and sentence under 28 U.S.C. § 2255. (Civ. Doc. 1, § 2255 Motion.)[1] In 2015, Alston pleaded guilty to one count of possession of a firearm by a convicted felon and was sentenced to 15 years' imprisonment under the Armed Career Criminal Act (ACCA). See 18 U.S.C §§ 922(g)(1), 924(e).[2] Alston alleges prosecutorial misconduct and violations of his Fifth Amendment right to due process, his Sixth Amendment right to a speedy trial, and his right to the effective assistance of counsel. Alston also filed five motions for leave to amend his § 2255 Motion. (Civ. Docs. 14, 16 18, 19, 22.) The government responded to the § 2255 Motion (Civ. Doc. 5, Response to § 2255 Motion) and to the first four motions for leave to amend (Civ. Doc. 20 Response to Motions for Leave to Amend). Alston replied to the government's responses. (Civ. Doc. 6, Reply; Civ. Doc. 11, Amended Reply; Civ. Doc. 21, Motion to Reply to Government's Response to Motions for Leave to Amend.) Thus, the case is ripe for a decision.
Under 28 U.S.C. § 2255 and Rule 8(a) of the Rules Governing Section 2255 Proceedings[3], the Court has considered the need for an evidentiary hearing and determines that a hearing is unnecessary to resolve the motion. No evidentiary hearing is required because Alston's allegations are affirmatively contradicted by the record, patently frivolous, or even if the facts he alleges are true, he still would not be entitled to relief. Rosin v. United States, 786 F.3d 873, 877 (11th Cir. 2015); see also Patel v. United States, 252 Fed.Appx. 970, 975 (11th Cir. 2007).[4]
On June 20, 2013, a federal grand jury in the Middle District of Florida indicted Alston on one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). (Crim. Doc. 1, Indictment.) The government moved for (and obtained) a warrant for Alston's arrest that same day. (Crim. Docs. 2, 3.) At the time, Alston was in the custody of the Florida Department of Corrections (“FDOC”). When he learned of the Indictment in September 2013, Alston requested that he be brought before the Court to address the charge under the Interstate Agreement on Detainers Act (IADA). (See Crim. Doc. 19, Motion to Dismiss Indictment ¶ 6.) The United States eventually brought Alston before the Court on June 30, 2014. (See Crim. Doc. 9, Minute Entry of Initial Appearance.)
Represented by the Federal Defender's Office, Alston moved to dismiss the Indictment based on a violation of his right to a speedy trial under the IADA. See Motion to Dismiss Indictment ¶¶ 13-14; (see also Crim. Doc. 8, Pro Se Motion to Dismiss). He argued that his right to a speedy trial was violated because more than 180 days passed between the government's receipt of his demand under the IADA and when he finally appeared before the Court. After a hearing on the motion (Crim. Doc. 34, Motion Hearing Transcript), the Court declined to dismiss the Indictment (Crim. Doc. 36, Report and Recommendation [R & R] on Motion to Dismiss; Crim. Doc. 38, Order Adopting R & R). The Court reasoned that Alston's right to a speedy trial was not violated because, although the FDOC mailed a copy of Alston's IADA demand to the Bureau of Alcohol, Tobacco, and Firearms, a copy of the demand was not delivered to the United States Attorney and the Court. See R & R on Motion to Dismiss Indictment at 8-12. Because Alston's demand was not delivered to the proper authorities, the demand never triggered the requirement under Section 2, Article III of the IADA that Alston be brought to trial within 180 days of delivering the demand. Instead, Alston had the right to be tried within 120 days of his arrival in the Middle District of Florida (absent good cause shown), and that 120-day period had not expired. See id. at 11. Thus, the Court denied the Motion to Dismiss the Indictment. Order Adopting R & R (Crim. Doc. 38).
In June 2015, Alston (now represented by his third lawyer) pleaded guilty under a written Plea Agreement. (See Crim. Doc. 87, Plea Agreement; Crim. Doc. 123, Plea Transcript.) Alston admitted that in April 2013 in Palatka, Florida, he sold a pistol with a scratched-off serial number to a confidential source and an undercover detective for $150. Plea Transcript at 32-33. He also admitted that, before possessing the firearm, he had been convicted of three felonies (all in Florida): (1) the unlawful sale or delivery of a controlled substance in 2001; (2) the sale of cocaine within 1,000 feet of a place of worship or a convenience business in May 2008; and (3) the sale of cannabis within 1,000 feet of a public park in October 2008. Plea Agreement at 17-18; see also Plea Tr. at 33-34. The Magistrate Judge who conducted the change-of-plea colloquy reported that “[after cautioning and examining the defendant under oath concerning each of the subjects mentioned in Rule 11, I determined that the guilty plea was knowledgeable and voluntary, and that the offense charged is supported by an independent basis in fact containing each of the essential elements of such offense.” (Crim. Doc. 89.) The Court accepted Alston's guilty plea and adjudicated him accordingly. (Crim. Doc. 96.)
Several months later, after moving to continue the sentencing hearing five times, Alston moved to withdraw his guilty plea. (Crim. Doc. 125, Motion to Withdraw Plea; Crim. Doc. 132, Supplemental Memorandum.) Alston alleged that his first attorney, Maurice Grant of the Federal Defender's Office, gave ineffective assistance by failing to adequately question a witness at the hearing on his Motion to Dismiss the Indictment and by failing to object to the Report and Recommendation on the Motion to Dismiss. Alston also argued that his second attorney, Wade Rolle, misadvised him that if he pleaded guilty he would be relieved of the condition of pretrial release confining him to home detention, freeing him to “work the streets” in an effort to earn a substantial assistance reduction. The Court rejected the Motion to Withdraw the guilty plea, explaining that the allegations against Mr. Grant did not affect the knowing and voluntary nature of the guilty plea and that the allegations against Mr. Rolle were refuted by the sworn statements Alston made during the change-of-plea colloquy. (Crim. Doc. 134, Order Denying Motion to Withdraw Guilty Plea at 9-12.)
Alston appeared before the Court for sentencing on November 28, 2016. (Crim. Doc. 150, Sentencing Transcript.) A United States Probation Officer recommended that Alston qualified to be sentenced under the ACCA based on his prior convictions for the unlawful sale or delivery of a controlled substance, the sale of cocaine within 1,000 feet of a place of worship or convenience business, and the sale of cannabis within 1,000 feet of a public park. (Crim. Doc. 137, Presentence Investigation Report [PSR] ¶ 31.) According to the Probation Officer, Alston's guidelines sentencing range was 235 to 293 months in prison, based on a total offense level of 33 and a Criminal History Category of VI. Id. ¶ 107. Alston objected to the ACCA enhancement, arguing that the prior conviction for the sale of cannabis within 1,000 feet of a public park should not count as his third “serious drug offense.” Sentencing Tr. at 3-4. The Court overruled that objection and determined Alston qualified to be sentenced under the ACCA. Id. at 8-13. After addressing other objections, the Court accepted the government's recommendation to impose the mandatory minimum sentence of 180 months (15 years) in prison, followed by five years of supervised release. See id. at 21-25; (Crim. Doc. 144, Judgment).
Alston appealed his conviction and sentence. His appellate attorney moved to withdraw and filed a brief under Anders v. California, 386 U.S. 738 (1967).
On August 18, 2017, after an independent review of the record, the Eleventh Circuit Court of Appeals determined there were no arguable issues of merit and affirmed Alston's conviction and sentence. United States v. Alston, 696 Fed.Appx. 479, 480 (11th Cir. 2017).
Alston did not petition the Supreme Court for certiorari review. As a result, his conviction and sentence became final 90 days later, on November 16, 2017, when the time to petition for a writ of certiorari expired. See Clay v. United States, 537 U.S. 522, 525 (2003) (). Under 28 U.S.C. § 2255(f)(1), Alston had until November 16, 2018, to move to vacate his sentence.
In June 2018, Alston filed a one-page motion for the appointment of counsel (Crim. Doc. 155, First Motion to Appoint Counsel) and a one-page motion to extend the deadline to move to vacate his sentence under § 2255 (Crim. Doc. 156, Motion for Extension). In the Motion for Extension, Alston said only that his appellate attorney had filed an Anders brief, that the deadline to file a § 2255 motion was “coming up on August 18, 2018,” that he had “issues he's seeking to raise,” and that he “needs more time [and] counsel representation [sic].” Id. The Court denied the two motions in a written order entered on June 22, 2018. (Crim. Doc. 157, Order of June 22, 2018.)
Alston filed nothing again with the Court until March 2020, when he renewed his motion to appoint counsel...
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