Faircloth v. United States
| Decision Date | 18 May 2020 |
| Docket Number | Case No: 2:19-cv-269-FtM-29MRM,Case No. 2:06-CR-117-FTM-29MR |
| Parties | MICHAEL TERRILL FAIRCLOTH, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Middle District of Florida |
This matter comes before the Court on petitioner Michael Terrill Faircloth's (Faircloth or petitioner) Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #1; Cr. Doc. #89; Cr. Doc. #90)1 filed by counsel on May 13, 2019, and petitioner's pro se Motion Under 28 U.S.C. Section 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (Cv. Doc. #2) filed on May 14, 2019. Petitioner's attorney filed a Memorandum of Law (Cv. Doc. #10) on August 5, 2019. On October 3, 2019, petitioner's attorney was allowed to withdraw from the case. (Cv. Doc. #15.) The government filed a Response in Opposition (Cv. Doc. #16) onOctober 4, 2019, to which petitioner filed a pro se Reply (Cv. Doc. #19) on December 9, 2019.
Petitioner is in the unusual position of urging the Court to vacate his sentence so it may impose a more severe sentence. Petitioner was originally sentenced as an armed career offender to 120 months imprisonment, followed by five years of supervised release. Before petitioner completed that sentence, he escaped; when captured, petitioner was found in possession of a firearm. This led to two new federal criminal cases, which ultimately resulted in convictions. After serving about nine years of the 120 month sentence, but before being convicted and sentenced on the new federal offenses, petitioner filed his first § 2255 motion claiming he was not an armed career offender under recent Supreme Court cases. The Court agreed, set a re-sentencing hearing, and ultimately re-sentenced petitioner to 41 months imprisonment, with no supervised release to follow. By the time petitioner was re-sentenced, he had completely served the original 120-month term of imprisonment (but not the supervised release term).
Petitioner asserts that the federal Bureau of Prisons refuses to credit his "overserved" time (i.e., the difference between the 120 months he actually served and the 41 months he was re-sentenced to serve) on either of petitioner's two new federal sentences. Petitioner further asserts that the Bureau of Prisons would give him such credit if the Court had imposed a term of supervisedrelease at re-sentencing. Petitioner therefore argues that the Court erred in failing to impose a term of supervised release, and his attorney provided ineffective assistance of counsel by failing to request the Court to do so. Petitioner seeks to be re-sentenced to 41 months imprisonment, plus a three year term of supervised release, and requests that the Court order the Bureau of Prisons to give him credit for the over-service of his original sentence. (Cv. Doc. #10, pp. 10-11.)
On October 25, 2006, a federal grand jury in Fort Myers, Florida returned a one-count Indictment (Cr. Doc. #1) charging Faircloth with being a felon in possession of ammunition (the Ammunition Case). In due course defendant entered a plea of guilty pursuant to a Plea Agreement. (Cr. Docs. #39, 41.)
According to the Presentence Report, defendant qualified under the Armed Career Criminal Act (ACCA), resulting in a Sentencing Guideline range of 180 to 210 months imprisonment. (Cr. Doc. #72, p. 33.) At the September 24, 2007 sentencing, the Court granted a four-level reduction based on the government's substantial assistance motion (Cr. Doc. #54), which resulted in a Sentencing Guidelines range of 120 to 150 months imprisonment. Petitioner was sentenced to 120 months of imprisonment, followedby a term of 60 months supervised release. (Cr. Docs. #51, 53.) Defendant did not file a direct appeal.
About nine years later, on March 18, 2016, defendant filed a motion pursuant to 28 U.S.C. § 2255 asserting that in light of the intervening decisions of Johnson v. United States, 135 S. Ct. 2551 (2015) and Welch v. United States, 136 S. Ct. 1257 (2016) he did not qualify under the ACCA. (Cr. Doc. #61.) On July 15, 2016, the Court issued an Opinion and Order (Cr. Doc. #62) finding the ACCA no longer applied to defendant, and setting the case for a full resentencing.
On September 13, 2016, petitioner through counsel filed a Motion to Withdraw Plea. (Cr. Doc. #67.) On October 19, 2016, the Court denied the motion because it would prejudice the government. (Cr. Doc. #71.)
Under the new Sentencing Guideline calculations, petitioner's range was 51 to 63 months imprisonment. (Cr. Doc. #72, pp. 1-2.) At the December 5, 2016, resentencing, the government continued to ask for the four-level reduction based upon substantial assistance. The Court granted petitioner a four level reduction in the total offense level which, coupled with petitioner's Category VI criminal history, resulted in a Sentencing Guidelines range of 33 to 41 months imprisonment, followed by supervised release of between one and three years. (Cr. Doc. #84, pp. 20.) Defense counsel asserted that imposition of supervised release wasdiscretionary, not mandatory. (Id. at 20-21.) Defense counsel requested a sentence at the low end of the Sentencing Guidelines range, without imposition of a term of supervised release because of petitioner's two pending federal cases for which supervised release would be available. (Id. at 21.) The Probation Office took the position that a term of supervised release was mandatory. (Id. at 24.)
Relying on 18 U.S.C. § 3583(a), the Court found that supervised release was not mandatory, and declined to impose a term of supervised release. (Id. at 25-26.) The Court imposed a sentence of 41 months imprisonment in order to give petitioner credit for his substantial assistance. (Id. at 29-30.) The Court declined to decide whether petitioner could "bank" or receive credit for any portion of the 120 month prior sentence which was over-served. (Id. at 30-31.) Judgment (Cr. Doc. #79) was filed on December 6, 2016.
Defendant had, of course, already served more than 41 months imprisonment. According to the Bureau of Prisons, a 41-month term would have been completed on April 21, 2009; petitioner had completed the 120-month prison term on January 14, 2015.2 (Cv. Doc. #16, p. 5.)
Defense counsel filed a Notice of Appeal (Cr. Doc. #81) and on appeal challenged the Court's denial of petitioner's motion to withdraw his guilty plea. The Eleventh Circuit affirmed the conviction and sentence on October 18, 2017. (Cr. Doc. #87); United States v. Faircloth, 712 F. App'x 887 (11th Cir. 2017). Petitioner's pro se petition for certiorari was denied on May 14, 2018. Faircloth v. United States, 138 S. Ct. 2012 (2018).
As part of the original incarceration on the Ammunition Case, petitioner was released to a halfway house in Miami, Florida. On or about February 12, 2014, petitioner left the halfway house without permission and was deemed to have escaped. On March 14, 2014, petitioner was indicted in the Southern District of Florida for Escape (the Escape Case). (Cv. Doc. #10, ¶ 2; Cv. Doc. #16, p. 4.)
On May 21, 2014, petitioner was arrested on the Escape Case at his residence in Cape Coral, Florida, where he was found with a loaded firearm on his person. (Cv. Doc. #10, ¶ 3; Cv. Doc. #16, p. 4.) On July 9, 2014, petitioner was indicted in the MiddleDistrict of Florida for Possession of a Firearm and Ammunition by a Convicted Felon (the Firearm Case) based on the loaded firearm found at the time of his arrest on the Escape Case. (Cv. Doc. #16, p. 4.)
On January 28, 2016, petitioner was found guilty by a jury on the Firearm Case in the Middle District of Florida. See United States v. Faircloth, 2:14-cr-76-FTM-38MRM, Doc. #161. On June 19, 2017, petitioner was sentenced to 120 months of imprisonment, consecutive to the sentence to be imposed for the escape. (Cv. Doc. #10, ¶ 4; 2:14-cr-76-FTM-38MRM, Doc. #227.) This conviction and sentence were affirmed on direct appeal. United States v. Faircloth, 770 Fed. Appx. 976, 977 (11th Cir. 2019). The Supreme Court denied certiorari on March 2, 2020. Faircloth v. United States, 140 S. Ct. 1273 (2020).
On August 16, 2017, petitioner was sentenced on the escape charge to 27 months of imprisonment, to run consecutive to the 41-month term imposed in the Ammunition Case. (Cv. Doc. #16, p. 5.)
Petitioner and his former counsel raise several grounds for relief in their respective § 2255 motions. The Court summarizes each ground.
In his pro se Ground One, petitioner phrases the issue as one of ineffective assistance of counsel. Petitioner asserts that his attorney failed to use due diligence to ascertain whether or not a term of supervised release was necessary to ensure he would receive time-served credit for the over-served sentence. Petitioner asserts that his attorney was twice given untrue information by a sentencing specialist with the Bureau of Prisons, but faults counsel for not verifying the information. (Cv. Doc. #2, p. 4.)
In the Ground One in counsel's § 2255 Motion, counsel phrases the issue as being trial court error. Specifically, counsel argues that the trial court erred in not imposing a term of supervised release upon re-sentencing, which prevented petitioner's sentence from being aggregated with his new sentences because his original sentence had already expired. Imposition of a supervised release term would have meant petitioner's sentence in the instant case had not expired, and the Bureau of Prisons would be able to aggregate his consecutive sentences and provide credit for the over-served time. (Cv. Docs. #1, p. 4; #10, pp. 5-7.)
In Ground Two of petitioner's pro se § 2255 motion he asserts that his attorney provided ineffective assistance of counsel byfailing to seek a writ of certiorari from the Supreme Court, as petitioner...
To continue reading
Request your trial