Douglas v. United States
| Decision Date | 30 March 2012 |
| Docket Number | 1:08-cv-282\1:01-cr-188 |
| Parties | DAMIEN DOUGLAS v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — Eastern District of Tennessee |
MEMORANDUM
Damien Douglas ("Douglas") has filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Criminal Court File No. 212).1 Douglas contends he was denied effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution.
The motion, together with the files and record in this case, conclusively show Douglas is entitled to no relief under 28 U.S.C. § 2255. For the reasons which follow, the Court has determined an evidentiary hearing is not necessary and concludes that Douglas' § 2255 motion lacks merit and will be DENIED (Criminal Court File No. 212).
Also before the Court are five motions filed by Damien-three requesting to amend his § 2255 motion and two requesting to supplement his response to the government's reply to his § 2255 motion (Criminal Court File Nos. 220, 222, 234, 236, & 237). Initially, the Court observes that the three motions to amend his § 2255 motion were filed after the expiration of the one year statute oflimitations for filing a § 2255 motion. Nevertheless, the Court had the government respond to the first two motions to amend. Thus the Court will address them in the analysis below.
In his third motion to amend, Douglas argues that in light of the Sixth Circuit's opinion in United States v. Almany, 598 F.3d 238 (6th Cir.), cert. granted 131 S.Ct. 637 (2010), his "first § 924(c) sentence must be vacated due to the second § 924(c) being a 'greater' mandatory minimum." (Criminal Court File No. 234). The United States Supreme Court, however, subsequently vacated the Sixth Circuit's opinion in Almany and on remand the Sixth Circuit restored the original sentence. United States v. Almany, 626 F.3d 901 (6th Cir. 2010). Accordingly, in addition to being DENIED because it is time-barred, Douglas' third motion to amend is also futile as the Sixth Circuit opinion he relies upon has been vacated by the United States Supreme Court (Criminal Court File No. 234).
In his motions to supplement, Douglas reargues his response to the government's reply regarding the alleged insufficient evidence as to the Credit Union's federally insured status and adds case citations (Criminal Court File Nos. 236 & 237). No objection has been filed. Accordingly, the motions to supplement are GRANTED (Criminal Court File Nos. 236 & 237).
A sentence in a criminal case must be vacated if the Court makes a finding "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, . . . " 28 U.S.C. § 2255. Thus, "[a] motion brought under § 2255 must allege one of three bases as a threshold standard: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of factor law that was so fundamental as to render the entire proceeding invalid." Weinberger v. United States, 268 F.3d 346, 351 (6th Cir. 2001), cert. denied, 535 U.S. 967.
A motion filed pursuant to 28 U.S.C. § 2255 must consist of something more than legal conclusions unsupported by factual allegations. United States v. Johnson, 940 F.Supp. 167, 170 (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); Clemmons v. Sowders, 34 F.3d 352 (6th Cir. 1994). In order to prevail on a § 2255 motion alleging non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Riggs v. United States, 209 F.3d 828, 831 (6th Cir.), cert. denied, 531 U.S. 884 (2000); Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994).
Under Rule 8 of the Rules Governing Section 2255 Proceedings in the United States District Courts, the Court is to determine after a review of the answer and the record whether an evidentiary hearing is required. If no hearing is required, the district judge is to dispose of the case as justice dictates. The Court finds it is not necessary to hold an evidentiary hearing.
A superseding indictment was filed on December 19, 2001, alleging a conspiracy to commit the robberies alleged in the original indictments filed under criminal case numbers 1:01-cr-186; 1:01-cr-187, and 1:01-cr-188. Upon motion of the government, which was opposed by Douglas, the Court granted the government's motion finding (Criminal Court File No. 68).
On December 19, 2001, a seven-count superseding indictment was filed (Criminal Court File No. 58). Douglas was named in the first five counts. Count One charged that in or about early March 2001 and continuing until about April 27, 2001, Douglas and Dameyon Stamper ("Stamper"), Lorenzo Suttles ("Suttles"), and coconspirators Timothy Douglas ("T. Douglass"), Bryce Gilbert ("Gilbert"), and Corey Young ("Young"), named in the Superseding Indictment as unindicted coconspirators, and other known and unknown to the grand jury, conspired to rob the Memorial Hospital Employees Credit Union and the Allied Printers/IBEW 846 Papermill Employees Credit Union by the use of a dangerous weapon [18 U.S.C. § 2113 (a) & (d)] and conspired to rob a Taco Bell restaurant by means of actual and threatened force and violence [18 U.S.C. § 1915], all in violation of 18 U.S.C. § 371.
Count Two charged that Stamper and Douglas, aided and abetted by each other and coconspirators T. Douglas and Young, and others known and unknown to the grand jury, robbed the Memorial Hospital Employees Credit Union in Chattanooga, Tennessee by the use of a dangerous weapon, in violation of 18 U.S.C. §§ 2113(a) & (d) and 2(a) & (b) (Criminal Court File No. 58, Superseding Indictment).
Count Three of the superseding indictment charged that Stamper and Douglas, aided and abetted by each other and coconspirators Douglas and Young, and others known and unknown to the grand jury, used, by brandishing, a firearm during and in relation to the crime of violence charged in Count Two of the Superseding Indictment, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2(a) & (b).
Count Four charged that on or about April 2, 2001, Suttles and Douglas, aided and abetted by each other and Gilbert, and others known and unknown to the grand jury, affected interstate commerce and the movement of articles and commodities in such commerce by robbing a Taco Bell Restaurant in Chattanooga, Tennessee by the means of actual and threatened force and violence, in violation of 18 U.S.C. § 2(a) and (b) and 1951.
Count Five charges that on or about April 2, 2001, Suttles and Douglas, aided and abetted by each other and Gilbert, and others known and unknown to the grand jury, used, by brandishing, a semi-automatic pistol during and in relation to the crime of violence charged in Court Four of the Superseding Indictment, in violation of 18 U.S.C. §§ 924(c)(1)(A)(ii) and 2(a) &(b).
Following a jury trial, Douglas was convicted on all five counts (Criminal Court File No. 133, Verdict Form). Douglas was sentenced in the United States District Court for the Eastern District of Tennessee at Chattanooga on November 18, 2002, to a total sentence of 454 months, i.e., concurrent terms of 60 months on the conspiracy conviction and 70 months on each of the robbery convictions consecutive to the statutory mandatory minimum consecutive sentences of 84 and 300 months on the § 924(c) convictions, for a total sentence of 454 months (Criminal Court File Nos. 150, 152).
On June 7, 2004, the Sixth Circuit affirmed Douglas' convictions and sentence (Criminal Court File No. 166). On January 24, 2005, Douglas' sentence was vacated by the Supreme Court in light of United States v. Booker, 543 U.S. 220 (2005). Douglas v. United States, 543 U.S. 1109 (2005). On June 23, 2005, the Sixth Circuit remanded the case for resentencing (Criminal Court File No. 172).
On March 27, 2006, the Court reconsidered Douglas' sentence under the no-advisory Guidelines and other relevant factors in 18 U.S.C. § 3553(a). The Court selected the same sentence it previously had imposed and the sentence was affirmed on direct appeal on March 14, 2008 (Criminal Court File No. 209). Douglas timely filed the instant § 2255 motion on November 26, 2008 (Criminal Court File No. 212)
The facts underlying Douglas' offense conduct are taken from different portions of the Court of Appeals for the Sixth Circuit opinion affirming Douglas' conviction and sentencing (Criminal Court File No. 166):
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