Cannon v. United States

Decision Date12 February 2021
Docket NumberCase No. 3:20-cv-00097,Case No. 3:17-cr-00208
PartiesClifton Terrell Cannon, Petitioner, v. United States of America, Respondent. United States of America, Plaintiff, v. Clifton Terrell Cannon, Defendant.
CourtU.S. District Court — District of North Dakota

ORDER ON MOTIONS

Before the Court are three motions filed by Defendant Clifton Terrell Cannon. First is a motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255. Doc. No. 123. Second is a motion for discovery. Doc. No. 152. Third is a motion for reconsideration of an order denying compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 151. For the reasons below, the motions are denied.

I. BACKGROUND

Cannon sold heroin and hydromorphone in and around Fargo, North Dakota. Doc. No. 106, ¶ 6. He obtained the drugs from sources in Fargo, Alexandria, and Minneapolis. Id. Typically, he sold one-point (.1 gram) quantities of heroin for approximately $50 and half-gram quantities for $150. Id.

On June 17, 2017, Cannon sold a one-point quantity of heroin to a female with the initials J.P. for between $30 and $50. Id. ¶ 7. After purchase, J.P. intravenously injected some of the heroin and set out for a nearby gas station. Id. She injected more heroin when she got there. Id. Bystanders then witnessed her collapse in the parking lot. Id. Emergency medical personnel arrived and revived J.P. with Narcan. Id. An ambulance subsequently transported her to the hospital for additional medical treatment. Id. When discharged from the hospital later that day, J.P. consented to act as a confidential informant for law enforcement. Doc. No. 132, p. 25. She soon arranged to purchase a half-gram of heroin from Cannon. Id. The controlled purchase went off as planned. Id.

The grand jury returned an indictment against Cannon on September 21, 2017. Doc. No. 1. The indictment charged Cannon with (1) conspiracy to possess with intent to distribute and distribute a controlled substance resulting in serious bodily injury, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), 846, and 18 U.S.C. § 2; (2) distribution of a controlled substance resulting in serious bodily injury, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2; and (3) distribution of a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 18 U.S.C. § 2. Id.

Pursuant to a plea agreement, Cannon pleaded guilty to all three offenses. Doc. No. 100. The Court1 ultimately imposed a sentence of 360 months' imprisonment on counts 1 and 2 and 240 months on count 3, all to run concurrently. Doc. No. 109. The Court entered judgment on April 19, 2019. Doc. No. 112.

Cannon did not pursue a direct appeal. But since sentencing, he has filed multiple post-conviction motions. On May 13, 2019, Cannon moved for a sentence reduction under Rule 35 of the Federal Rules of Criminal Procedure. Doc. No. 114. Upon reassignment to the undersigned, the Court denied the motion. Doc. No. 116. On March 27, 2020, Cannon submitted a letter explaining that he had yet to receive requested documents from his former attorney, John Goff, and therefore intended to move for an extension of time to file a motion under 28 U.S.C. § 2255. Doc. No. 119. He moved for such an extension one week later, repeating that he had not received his case file and stating (incorrectly) that his "deadline [was] coming up April 19, 2020." Doc. No. 120. On April 13, 2020, Cannon filed another letter seeking an extension that also raised a lack of access to the prison law library due to facility lockdowns at the onset of the COVID-19 pandemic. Doc. No. 122. Because no mechanism exists for prospectively tolling the limitation period prescribed in 28 U.S.C. § 2255(f), the Court denied the extension requests. Doc. No. 121.

Cannon's 28 U.S.C. § 2255 motion eventually arrived on June 2, 2020. Doc. No. 123. He took advantage of the inmate mailbox rule, declaring that he had deposited the motion in the prison mailing system on May 26, 2020. See id. at 13; Rule 3(d), Rules Governing Section 2255 Proceedings for the United States District Courts ("§ 2255 Rules"). Cannon then repeatedly moved for discovery without success. Doc. Nos. 130, 139, 144.

On June 16, 2020, Cannon separately moved for compassionate release under 18 U.S.C. § 3582(c)(1)(A). Doc. No. 124. The Court denied the motion, concluding that his minor health conditions failed to demonstrate an increased risk of serious illness from COVID-19 while incarcerated. Doc. No. 128, pp. 7-8. The Court further rejected compassionate release because the 18 U.S.C. §§ 3142(g) and 3553(a) factors strongly weighed against release. Id. at 8-11.

II. DISCUSSION

In his 28 U.S.C. § 2255 motion, Cannon contends that Goff provided ineffective assistance of counsel by (1) failing to file a requested notice of appeal, (2) failing to consult with him about the advantages and disadvantages of an appeal, (3) failing to contest that the heroin he sold to J.P. was an independently sufficient cause of her overdose, and (4) failing to challenge counts 1 and 2 as multiplicitous. The discovery motion seeks the production of all material relevant to Cannon's ineffective assistance of counsel claims. The motion for reconsideration of compassionate release relies on the same health conditions Cannon previously raised and additionally avers that the Court lacked jurisdiction over his offenses in the first place. The Court addresses each motion in turn.

A. Motion to Vacate, Set Aside, or Correct Sentence

A motion under 28 U.S.C. § 2255 affords relief "in several circumstances, including cases shown to contain jurisdictional errors, constitutional errors, and errors of law." Raymond v. United States, 933 F.3d 988, 991 (8th Cir. 2019) (citing 28 U.S.C. § 2255(b)). "Habeas review is an extraordinary remedy and will not be allowed to do service for an appeal." Fletcher v. United States, 858 F.3d 501, 505 (8th Cir. 2017) (quoting Jennings v. United States, 696 F.3d 759, 762 (8th Cir. 2012)). An evidentiary hearing is required unless the allegations in the motion are inherently incredible, contradicted by the record, merely conclusory, or would not entitle the petitioner to relief even if true. Roundtree v. United States, 751 F.3d 923, 926-27 (8th Cir. 2014). The movant bears the burden to demonstrate an entitlement to relief. Golinveaux v. United States, 915 F.3d 564, 567 (8th Cir. 2019).

As a threshold matter, the Government contends that dismissal without an evidentiary hearing is warranted because Cannon submitted his § 2255 petition too late. Cannon responds byraising the doctrine of equitable tolling in an attempt to extend the one-year limitation period. The Court concurs with the Government's position and will dismiss the petition as untimely.

A petitioner ordinarily must bring a § 2255 motion within one year of "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255(f)(1). An unappealed conviction becomes final when the time to file a notice of appeal expires. Anjulo-Lopez v. United States, 541 F.3d 814, 816 n.2 (8th Cir. 2008). Thus, Cannon's convictions became final when his window to appeal lapsed on May 3, 2019.2 His § 2255 motion arrived more than one year later on June 2, 2020. Even with the benefit of the inmate mailbox rule, Cannon waited to submit his motion until May 26, 2020—still at least three weeks overdue. The motion is therefore untimely under § 2255(f)(1).

Alternatively, a § 2255 motion is timely if submitted within one year of "the date on which the facts supporting . . . the claims presented could have been discovered through the exercise of due diligence." 28 U.S.C. § 2255(f)(4). To utilize § 2255(f)(4), "a petitioner must show the existence of a new fact, while also demonstrating that he acted with diligence to discover the new fact." Ingram v. United States, 932 F.3d 1084, 1088-89 (8th Cir. 2019) (citation omitted). Diligence requires a petitioner to take "prompt action . . . as soon as he is in a position to realize that he has an interest in challenging the prior conviction." Johnson v. United States, 544 U.S. 295, 308 (2005).

Cannon's ineffective assistance of counsel claims regarding overdose causation and multiplicity rest on facts readily available long before his convictions became final. Indeed, not only were the facts supporting these claims accessible, Cannon actually possessed subjectiveknowledge of them. Cannon sent Goff letters in June and November 2018—well before he changed his plea—identifying the very arguments he now relies on for relief. Doc. No. 156-2, pp. 1-2. For example, he asked, "How can they charge the same offense in more than one count? (Multiplicity)." Id. at 1. He then separately referenced Burrage v. United States, in which the Supreme Court held that "where use of the drug distributed by the defendant is not an independently sufficient cause of the victim's death or serious bodily injury, a defendant cannot be liable under the penalty enhancement provision of 21 U.S.C. § 841(b)(1)(C) unless such use is a but-for cause of the death or injury." 571 U.S. 204, 218-19 (2014). Immediately following that citation, Cannon probed at the asserted lack of a toxicology report or other evidence proving that J.P. overdosed from the heroin he supplied. Doc. No. 156-2, p. 2. These communications mirror the predicates for his present claims, conclusively showing their factual bases were available to Cannon more than one year before he filed his habeas petition. See Doc. No. 123, pp. 4-8. Accordingly, those claims remain time barred under § 2255(f)(4).

The appeal claims fare no better. At the outset, any facts supporting Cannon's allegation that Goff failed to consult with him regarding the prospects of an appeal necessarily arose before the time to appeal lapsed. The limitation period in § 2255(f)(4) consequently did not extend past May 3, 2020, rendering Cannon's initial appeal-related claim...

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