Clinkscale v. U.S.

• Decision Date: 28 January 2005
• Docket Number: No. 4:03 CV 416.,4:03 CV 416.
• Parties: Jantz S. CLINKSCALE Petitioner v. UNITED STATES of America Respondent
• Court: U.S. District Court — Northern District of Ohio

367 F.Supp.2d 1150

Jantz S. CLINKSCALE Petitioner v. UNITED STATES of America Respondent

No. 4:03 CV 416.

United States District Court, N.D. Ohio, Eastern Division.

January 28, 2005.

COPYRIGHT MATERIAL OMITTED

Jantz S. Clinkscale, F.C.I. Ashland, Ashland, KY, Pro se, for Plaintiff.

James V. Moroney, Jr., Office of the U.S. Attorney, Northern District of Ohio, Cleveland, OH, for Defendant.

MEMORANDUM OF OPINION AND ORDER DENYING PETITIONER'S 28 U.S.C. § 2255 MOTION

WELLS, District Judge.

Before this Court is pro se petitioner Jantz S. Clinkscale's motion to vacate, set aside, or correct his sentence, filed pursuant to 28 U.S.C. § 2255. (Docket # 1). In connection with his petition, Mr. Clinkscale also filed a motion for discovery of grand jury minutes. (Docket # 7). Respondent filed an answer to Mr. Clinkscale's petition and a response in opposition to his motion for discovery of grand jury minutes. (Docket # 8). Mr. Clinkscale then filed a traverse. (Docket # 9).

After briefing was completed on Mr. Clinkscale's motion, Mr. Clinkscale filed two related motions to amend his petition. (Docket # 11 and # 13). In his motions to amend, Mr. Clinkscale seeks to add an additional ground for relief based on the alleged inaccurate calculation of his sentencing credits. Respondent has filed a brief in opposition. (Docket # 12).

For the reasons set forth below, Mr. Clinkscale's 2255 motion, his motion for discovery of grand jury minutes, and his motions for leave to amend will be denied.

I. BACKGROUND

A. Trial Court Proceedings and Direct Appeal

On 20 October 1999, Mr. Clinkscale was indicted on 31 felony counts.¹ On 27 December 1999, Mr. Clinkscale file a motion to suppress all evidence seized during a 4 August 1998 search of his home on three different grounds: 1) the affidavit failed to set forth probable cause to believe that he was a drug dealer; 2) the information in the indictment was stale; and 3) the warrant failed to specify with particularity the precise crime for which the evidence could be sought. This Court denied the motion to suppress on 24 February 2000.²

On 28 February 2000, pursuant to a written plea agreement, Mr. Clinkscale pled guilty to eight counts of the indictment: Count One (conspiracy to distribute cocaine, and to possess cocaine with intent to distribute); Count Three (being a felon-in-possession of a firearm); Count Seven (wilfully subscribing to a false federal income tax return for the taxable year 1997); Counts 13, 18, and 23 (structuring currency transactions); and Counts 30 and 31 (money laundering). On 24 August 2000, this Court sentenced Mr. Clinkscale to a 90 month term of incarceration to be followed by four years of supervised release.

In the plea agreement, Mr. Clinkscale specifically reserved the right to appeal this Court's suppression order, and both parties acknowledge that, if Mr. Clinkscale were successful on appeal, he maintained the right to withdraw the guilty plea entered pursuant to the agreement. Other than preserving his right to appeal the suppression order, Mr. Clinkscale:

Expressly waive[d] the right to appeal his conviction, and his sentence on any ground, including any appellate right conferred by 18 U.S.C. § 3742, so long as the Court sentences the defendant in a manner consistent with the provisions set forth in paragraph 5 of [the plea] agreement.

(Plea Ag. at ¶ 13). Mr. Clinkscale does not dispute that his ultimate sentence was consistent with the terms of his plea agreement.

Ultimately, Mr. Clinkscale did file an appeal of this Court's suppression order. On 27 February 2002, the Sixth Circuit affirmed this Court's denial of Mr. Clinkscale's motion to suppress based upon the reasoning employed by this Court. U.S. v. Clinkscale, 30 Fed.Appx. 330 (6th Cir. Feb.27, 2002).

B. Mr. Clinkscale's 2255 Motion

On 7 March 2003, Mr. Clinkscale filed a motion to correct or vacate his sentence, pursuant to 28 U.S.C. § 2255, asserting two grounds for relief: 1) his indictment was defective in violation of the Fifth and Sixth Amendments of the United States Constitution, (Docket # 1, at PG4-PG14);³ and, 2) he was denied the effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution,(Docket # 1, at 4). With respect to his second claim, Mr. Clinkscale asserts that his counsel was constitutionally ineffective for failing to:

⁴

1) "Get defective indictment thrown out;"

2) "Effectively argue motion to suppress;"

3) "Argue [for a] 3 point deduction for acceptance of responsibility;"

4) "Argue [against a] 2 point increase for criminal history;"

5) "Argue that 922(g)(1) has no penalty provisions;"

6) "Point out seizure of items fell outside the scope of the warrant;"

7) "Challenge perjured statements made by government as to seizure of vehicles."

(Docket # 1, at 4).

II. MOTIONS FOR DISCOVERY AND TO AMEND HIS SECTION 2255 MOTION

Before addressing the underlying motion itself, this Court turns its attention to Mr. Clinkscale's motion for discovery of grand jury minutes and his motions to amend his petition.

A. Motion for Discovery of Grand Jury Minutes

With this discovery motion, Mr. Clinkscale seeks a transcript of the grand jury minutes along with the following:

• The names and addresses of all attorneys for the government appearing before, presenting evidence to, or making statements to the grand jury;

• A statement as to whether any unsworn witnesses or unauthorized persons were present in the grand jury room;

• A statement as to when the grand jury first commenced its duties and a copy of any documents or orders relating to or extending its authority or term.

(Docket # 7). In the alternative, he requests that this Court conduct an in camera review of the requested grand jury materials to determine whether there was any abuse or defect in the grand jury proceedings.

Under Rule 6 of the Rules Governing 2255 proceedings, Mr. Clinkscale is not automatically entitled to conduct discovery, but rather must obtain leave, for good cause shown, from the court to do so. Although the permitted discovery may include grand jury transcripts, DeVincent v. United States, 602 F.2d 1006, 1010 (1st Cir.1979), Mr. Clinkscale, in order to lift the "veil of secrecy" surrounding grand jury proceedings, must demonstrate the existence of a "particularized need" for such discovery that outweighs the general rule of grand jury secrecy. Douglas Oil Co. of California v. Petrol Stops Northwest, 441 U.S. 211, 220-23, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Dennis v. United States, 384 U.S. 855, 869-70, 86 S.Ct. 1840, 16 L.Ed.2d 973 (1966); see also In re Antitrust, 805 F.2d 155, 160-61 (6th Cir.1986).⁵ The Douglas Oil standard for disclosure is "a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others." United States v. Sells Engineering, Inc., 463 U.S. 418, 445, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983).

Mr. Clinkscale contends that such discovery is necessary to establish whether a government witness, Agent Gary L. Gruver, presented perjured testimony to the grand jury. Mr. Clinkscale submits that he has a reasonable basis for suspecting Mr. Gruver of perjury because of the following testimony Mr. Gruver gave during a detention hearing:

Q: Now, you say you found during a search a considerable sum of money.

A: In excess of $327,000. Q: Can you connect even a dollar of that money up to any drug transaction?

A: I don't know.

(Docket # 7, Attach. A). From that brief interchange, Mr. Clinkscale argues that "it is reasonable to infer" that Mr. Gruver gave perjured testimony to the grand jury. This inference is based on the following chain of reasoning:

• Mr. Gruver was "a primary investigating officer" in his case;

• After the indictment was handed down, Mr. Gruver was not sure whether he could connect the money to a specific drug transaction;

• Because the indictment alleges that the money laundering transactions were proceeds of drug trafficking, Mr. Gruver may well have lied to the grand jury.

Beginning with an isolated snippet of testimony by one officer involved in his case, Mr. Clinkscale spins a story which falls well short of meeting his burden for the grand jury disclosure he seeks. Riddled with unsupported assumptions, Mr. Clinkscale's purported basis for suspecting perjury on the part of Mr. Gruver which infected the grand jury proceedings is nothing more than pure speculation.⁶ Mr. Clinckscale has failed to demonstrate the requisite good cause necessary for discovery in a 2255 proceeding let alone the much higher standard required to lift the "veil of secrecy" of grand jury proceedings. Accordingly, his motion for discovery is denied.

B. Motions to Amend

In both of his motions to amend, Mr. Clinkscale seeks the opportunity to raise the argument that he should receive credit for time served while on house arrest. The Attorney General, through the Bureau of Prisons, is vested with the authority of calculating any sentencing credits to which a federal defendant may be entitled. United States v. Wilson, 503 U.S. 329, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992); United States v. Westmoreland, 974 F.2d 736, 737 (6th Cir.1992). Because challenges to such determinations relate to the execution of a sentence, Mr. Clinkscale's claim that he should have received credit for time served while under house arrest is not cognizable in a 2255 motion. Dorsey v. United States, 53 F.3d 331, 1995 WL 264442, *2 (6th Cir. May 5, 1995). Any claim challenging sentencing credit determinations must be brought pursuant to 28 U.S.C. § 2241 in the district court having jurisdiction over the petitioner's custodian. Alvey v. United States, 899 F.2d 1221, 1990 WL 40080, *1 (6th Cir. Apr.9, 1990); United States v. Little, 392 F.3d 671, 679-80 (4th Cir.2004); Romandine v. United States, 206 F.3d 731, 736 (7th Cir.2000). Because a 2255 motion is not...