Ferguson v. United States
| Decision Date | 20 April 2016 |
| Docket Number | Criminal No. 03-72,Civil No. 11-0154 |
| Parties | LARRY LEWIS FERGUSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Western District of Pennsylvania |
Pending before the court is a "motion for relief from a judgment or order pursuant to Fed. R. Civ. P...60(d)(3) or in the alternative Hazel-Atlas independent action" (the "motion for relief from judgment") filed by pro se petitioner Larry Lewis Ferguson ("petitioner"). (ECF No. 1168.) Petitioner in the motion for relief from judgment raises issues similar to issues he raised in a motion to vacate, set aside, or correct sentence by a person in federal custody, pursuant to 28 U.S.C. § 2255 (the "§ 2255 motion") (ECF No. 958) and a motion for reconsideration (ECF No. 1051) of this court's opinion and order denying the § 2255 motion (ECF No. 1038). The government in its response in opposition to the motion for relief from judgment argues that the motion for relief from judgment is a second or successive § 2255 motion, and, therefore, this court lacks subject-matter jurisdiction to hear the motion. (ECF No. 1178 at 4.)
The government is correct. Petitioner in the motion for relief from judgment attacks the integrity of his underlying criminal convictions. Petitioner did not receive authorization from the Third Circuit Court of Appeals to file a second § 2255 motion. This court, therefore, lacks subject-matter jurisdiction to hear petitioner's second § 2255 motion, i.e., the motion for relief from judgment. The motion for relief from judgment will, therefore, be denied for the reasons stated more fully herein.
This court in its opinion denying petitioner's § 2255 motion dated November 11, 2012, and its opinion denying petitioner's motion for reconsideration dated June 28, 2013, set forth in detail the background and procedural history of petitioner's case. The court in this opinion will repeat only the background and procedural history facts pertinent to the resolution of the motion for relief from judgment.
A federal grand jury indicted petitioner, among others, for, among other things, conspiracy to distribute and possess with intent to distribute at least 100 grams of heroin in violation of 21 U.S.C. § 846 and possession with intent to distribute heroin in violation of 21 U.S.C. § 841(a)(1). (ECF No. 1.) A superseding indictment charged petitioner with conspiracy with intent to distribute at least 100 grams of heroin (count one) and six substantive counts of possession with intent to distribute heroin (counts four, seven, nine, ten, twelve, and twenty). (ECF No. 354); Ferguson v. United States, Crim. Action No. 03-72, 2012 WL 5398809, at *1 (W.D. Pa. Nov. 2, 2012). Petitioner entered pleas of not guilty to all counts and proceeded to a trial, which ended in a mistrial. United States v. Ferguson, 394 F. App'x 873, 876 (3d Cir. 2010). A retrial was scheduled for January 2006. Ferguson, 2012 WL 5398809, at *1.
Before the retrial began, Assistant United States Attorney Todd Eberle ("Eberle") of the United States Attorney's Office for the Western District of Pennsylvania received a letter written by Arlando Crowe ("Crowe"), petitioner's cell mate in the prison where petitioner was being held while awaiting retrial. (T.T. 2/2/06 (ECF No. 746) at 5-6.) In the letter, Crowe claimed thathis cell mate told him about his case and "how he manipulated, lied and had witnesses testify falsely." (Id. at 4, 23-24.) January 9, 2006, was the date by which the parties were to exchange discovery and share exhibit lists. The government at that time, however, had not yet interviewed Crowe. (Id. at 6, 10-19.) The government listed Crowe as a possible witness, but at that time did not produce any statements relating to Crowe as Jencks Act material, pursuant to the Jencks Act, 18 U.S.C. § 3500. (Id. at 4-5.)
On January 27, 2006, agents with the Drug Enforcement Agency (the "DEA"), Mauricio Jimenez ("Jimenez") and Victor Joseph ("Joseph"), interviewed Crowe, who told them specific details about petitioner. (T.T. 2/1/06 (ECF No. 745) at 15-16.) After the interview, the government made the decision to call Crowe as a witness during petitioner's trial. (T.T. 2/2/06 (ECF No. 746) at 26.) On January 31, 2006, the government produced to petitioner's counsel, Robert Stewart ("Stewart"), the DEA agents' interview notes as Jencks Act material. (T.T. 2/1/06 (ECF No. 745) at 2.) During a February 2, 2006 hearing, Stewart moved to exclude Crowe's testimony on the ground that the government failed to produce to him the Jencks Act material, including the letter written by Crowe and the interview notes, in advance of the January 9, 2006 deadline. (T.T. 2/2/06 (ECF No. 746) at 3-8.) The court denied the motion, but postponed Crowe's testimony until February 7, 2006, which permitted petitioner and his counsel seven days to review the Jencks Act material prior to Crowe testifying before the jury. (Id. at 13.)
On February 7, 2006, Crowe testified that petitioner revealed to him details about his involvement in the crimes charged in the superseding indictment. (T.T. 2/7/06 (ECF No. 747) at 8-88.) On February 23, 2006, a jury found petitioner guilty of six counts (one, four, seven, ten, twelve, and twenty) and not guilty of one count (count nine). (ECF No. 645.)
On September 1, 2006, petitioner's new counsel, John Halley ("Halley"), filed a motion for a new trial on petitioner's behalf. (ECF No. 767.) On October 13, 2006, the court on the record denied petitioner's motion for a new trial. (ECF No. 781.) On October 13, 2006, petitioner was sentenced to a term of imprisonment of 360 months at each of the six counts for which he was found guilty, a term of supervised release of 8 years at counts one and six, a term of supervised release of 6 years at counts four, seven, ten, twelve, and twenty, with all terms of supervised release to concurrently run, and a special assessment of $600. (ECF No. 806.) On October 20, 2006, petitioner filed a notice of appeal of the judgment entered against him. (ECF No. 810.) On November 12, 2010, the Third Circuit Court of Appeals affirmed this court's judgment entered against petitioner on October 20, 2006. (ECF No. 942.)
On February 7, 2011, petitioner filed his first § 2255 motion. (ECF No. 958.) On April 29, 2011, the government filed a response in opposition to petitioner's § 2255 motion. (ECF No. 977.) On June 9, 2011, petitioner filed a reply with respect to his § 2255 motion. (ECF No. 984.) Petitioner filed two motions to supplement his § 2255 motion, which the court construed as supplemental briefing and ultimately granted. (ECF Nos. 992-93, 995-996.) On January 6, 2012, the government filed a response in opposition to petitioner's first motion to supplement his § 2255 motion. (ECF No. 994.) On January 19, 2012, petitioner filed a reply to the government's response in opposition. (ECF No. 998.)
On November 2, 2012, the court issued an opinion, which set forth the reasons why the § 2255 motion would be denied and entered an order denying the motion and entering judgment in favor of the government. (ECF Nos. 1038, 1039.) On November 29, 2012, petitioner filed a motion for reconsideration of the court's judgment entered in favor of the government with respect to his § 2255 motion. (ECF No. 1051.) On February 14, 2013, the government filed aresponse in opposition to petitioner's motion for reconsideration. (ECF No. 1078.) On March 4, 2013, petitioner filed a reply, which was entitled a response, with respect to his § 2255 motion. (ECF No. 1084.) On April 22, 2013, petitioner filed a supplemental brief, which was entitled a sur-reply brief, with respect to his motion for reconsideration. (ECF No. 1100.) On June 28, 2013, the court entered an opinion and order denying petitioner's motion for reconsideration. (ECF No. 1121.)
On August 8, 2013, petitioner filed a notice of appeal of the court's opinion and order denying his § 2255 motion and the court's opinion and order denying his motion for reconsideration. (ECF No. 1131.) On August 27, 2013, petitioner filed an amended notice of appeal of the court's opinion and order denying his § 2255 motion and the court's opinion and order denying his motion for reconsideration. (ECF No. 1136.) On October 31, 2013, the Third Circuit Court of Appeals issued an order denying petitioner's motion for certificate of appealability explaining that "jurists of reason would not debate the District Court's denial on the merits of appellant's claims of ineffective assistance of trial and appellate counsel, or the District Court's denial of reconsideration, for the reasons that the District Court explained in its opinions." (ECF No. 1141 at 1.)
On February 26, 2015, petitioner filed the pending motion for relief from judgment and a brief in support of the motion. (ECF Nos. 1168 and 1169.) On June 16, 2015, the government filed a response in opposition to petitioner's motion for relief from judgment. (ECF No. 1178.) On July 27, 2015, petitioner filed a reply, which was entitled a response, with respect to his motion for relief from judgment. (ECF No. 1185.) On December 1, 2015, petitioner filed a motion to supplement his motion for relief from judgment. (ECF No. 1195.) On March 31, 2016, this court granted petitioner's motion to supplement. (ECF No. 1200.)
Petitioner's motion for relief from judgment having been fully briefed is now ripe to be decided by the court.
In 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), which, among other things, established stringent procedural and substantive requirements that an applicant must satisfy in order to file a "second or successive" habeas corpus petition with a district court.1 The AEDPA's requirements for filing a second or successive petition under § 2255 is codified at 28 U.S.C. § 2255(h). Section 2255(h...
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