Gilmore v. United States

• Decision Date: 06 October 2022
• Docket Number: CV-21-00014-PHX-GMS (JZB),CR-17-00804-GMS-1
• Parties: James Dee Gilmore, Jr., Movant, v. United States of America, Respondent.
• Court: U.S. District Court — District of Arizona

James Dee Gilmore, Jr., Movant, v. United States of America, Respondent.

Nos. CV-21-00014-PHX-GMS (JZB), CR-17-00804-GMS-1

United States District Court, D. Arizona

October 6, 2022

HONORABLE G. MURRAY SNOW, CHIEF UNITED STATES DISTRICT JUDGE:

REPORT & RECOMMENDATION

Honorable John Z. Boyle United States Magistrate Judge

Movant James Dee Gilmore, Jr. has filed a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 asserting five grounds for relief from the sentences imposed for his conviction on two drug-related offenses in CR-17-00804-GMS-1. (Doc. 1.)^[1] Because Ground One was resolved against Movant on direct appeal and the remaining four grounds are without merit, the Court recommends the motion be denied and dismissed with prejudice. The Court notes that Movant states in his Traverse/Reply that he “declines to further argue” Grounds One, Two, Four, and Five. (Doc. 31 at 2.) Movant states that “Ground Three remains the basis” for his habeas claim. (Id.) Notwithstanding, this Report contains a discussion of all claims.

I. Factual Background & Procedural History.

The Presentence Investigation Report summarized the facts of the case as follows:

On May 16, 2017, [Movant] presented himself and his vehicle for inspection and entry into the United States at the San Luis, Arizona, Port of Entry. [Movant] was the driver and sole occupant of a Chevy Silverado truck, but was not the registered owner. As agents submitted [Movant's] information into their computer system a drug detecting canine alerted to the presence of narcotics in the spare tire located under the bed of the truck. A density machine also gave a high reading suggesting the tire contained matter.

After [Movant] was detained, he told agents he was a hay loader on his way home to Yuma, Arizona. He stated the truck was not his, but belonged to the mechanic who was working on his vehicle because it had been overheating. A plastic baggie containing methamphetamine was found on his person.

Upon inspection of the tire, agents found 46 packages of methamphetamine, weighing 21.5 kilograms, located within the tire located under the bed of the truck. [Movant] stated the methamphetamine found on his person was discovered in the truck when he was searching it for drugs, and planned to smoke the drug once he arrived home. He stated he had heard that drugs were often hidden in the doors or tires of the vehicles crossing into the United States. [Movant] denied the drugs belonged to him or that he was being paid to transport the drugs.

[Movant] also told agents that he did not ask to borrow the truck, the truck had been given to him because his truck was not where he had left it in Somerton, Arizona, and he needed to file a police report. He stated on April 16, 2017, his truck and trailer broke down in Somerton, and he had to leave it. [Movant] could not explain why computer records documented him crossing into the United States from Mexico in his personal truck on May 6, 2017.

[Movant] later admitted Rafa Caesar Gonzalez allowed him to borrow the truck as long as he would drive the truck to Phoenix. [Movant] was to deliver the truck to Gonzalez's uncle, who would then buy a bus ticket for [Movant] to return to Yuma, Arizona. He also said one time he was offered $3,000 to cross drugs into the United States and would be paid $5,000 for longer trips. [Movant] stated he had declined the offer to transport drugs for pay. He denied having knowledge of the drugs found in the truck or agreeing to cross drugs into the United States.

While [Movant] was being transported to the detention facility, he stated he was recruited by a drug trafficker known as Zanny Elizabeth Castro. Castro told [Movant] she would buy him a vehicle that would need to be placed into his name. [Movant] would then need to cross the vehicle to create a normal crossing pattern, before he could transport drugs. Castro stated she would pay him $500 for every trip. [Movant] stated after he discussed this with Castro, he declined her offer. [Movant] indicated Castro lives in Mexico but works as an agricultural foreman in Arizona and uses a yellow bus to transport drugs.

(CR Doc. 166 at 3-4.)

On June 13, 2017, Movant was indicted with importation of 500 or more grams of methamphetamine (Count I) and possession of the same with intent to distribute (Count II). (CR Doc. 9 (Indictment).) Movant was convicted on both counts at the conclusion of a three-day trial and sentenced to concurrent prison terms of 151 months and 60 months of supervised release. (CR Docs. 84 (Verdicts); 171 (Judgment); see CR Docs. 108 (Transcript, Trial - Day 1), 109 (Transcript, Trial - Day 2), 110 (Transcript, Trial - Day 3).)

On April 29, 2020, the Ninth Circuit Court of Appeals affirmed the judgment on direct appeal. (COA Doc. 57 (Memo. Decision^[2]); see COA Docs. 21 (Opening Brief); 31 (Response); 48 (Reply).)

On November 16, 2020, the United States Supreme Court denied certiorari. (COA Docs. 64 (Petition), 65 (Denial).)

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

On January 4, 2021, Movant timely^[3] filed the instant motion under 28 U.S.C. § 2255, asserting five grounds for a new trial. (Doc. 1; see id. at 12.) Ground One claims the government violated Movant's due process and Sixth Amendment rights by failing to provide him an attorney after his arrest and allowing statements he made to law enforcement to be admitted at trial. (Id. at 4.) The remaining four grounds claim Movant's trial counsel, Assistant Federal Public Defender (“AFPD”) Susan Anderson, was ineffective because she did not: (a) object to or file a motion to suppress the testimony of the “DTO agent” (the government's expert witness on drug-trafficking organizations) (Ground Two); (b) request a continuance so that a psychiatrist could assess Movant's competency (Ground Three); (c) communicate with Movant about “discovery” (Ground Four); and (d) challenge text messages between Movant and “D-Rafa”^[4] introduced at trial. (Ground Five^[5]). (Id. at 5-9.)

In response, the government argues the Motion should be dismissed because Ground One was resolved in favor of the government on direct appeal and therefore may not serve as a ground for relief in a motion under § 2255, and Grounds Two through Five are meritless under Stricklandv. Washington, 466 U.S. 668 (1984). (Doc. 28.)

In reply, Movant appears to concede all but Ground Three to the government. (See Doc. 31 at 2.) Movant states he “declines to further argue Ground One and Ground Two because these issues were raised on direct appeal and thus cannot be raised in a 2255 motion” and “declines to further argue Ground Four and Ground Five because [he] is unable to prove a negative [and] in order to prevail in a 2255 motion, actual evidence supporting a petitioner's motion must be presented.” (Id.) “Ground Three remains the basis for [his] claim that he is being held in violation of the Constitution.” (Id.; see id. at 2-12 (Arguments); id. at 14-22 & Docs. 31-1, -2, -3 (Exhibits).) Notwithstanding the above, the Court will address the merits of Grounds Two through Five.

III. Law.

A. Standard for Relief.

“A federal prisoner may collaterally attack the legality of his conviction or sentence through a motion to vacate, set aside, or correct his sentence under § 2255.” United States v. Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022); see also Daniels v. United States, 532 U.S. 374, 377 (2001) (explaining § 2255 is “a postconviction remedy for federal prisoners”). A federal prisoner may seek relief on the ground that “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.” 28 U.S.C. § 2255(a). If the court finds the prisoner is entitled to relief, it must vacate and set aside the judgment and “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

B. Claims Precluded.

In general, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.”). Claims of ineffective assistance of counsel, however, may be raised on collateral review, regardless of whether they were raised on direct appeal. Massaro, 538 U.S. at 504 (“[A]n ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.”); see also Jackson, 21 F.4th at 1212 (“Ineffective assistance of counsel claims may be brought in collateral proceedings under § 2255.”).

C. Law of the Case.

“Under the ‘law of the case' doctrine, ‘a court is generally precluded from reconsidering an issue that has already been decided by the same court, or a higher court in the identical case.'” United States. v Alexander, 106 F.3d 874, 877 (9th Cir. 1997); see Musachhio v. United States, 577 U.S. 237, 244-45 (2016) (“[W]hen a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” (internal quotation marks and citations omitted)). Thus, a claim “expressly rejected” on direct appeal “cannot be the basis of a § 2255 motion.” United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985); see Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975) (“Issues raised at trial and considered on...