Golden v. United States, C 12-4012-MWB
| Decision Date | 06 February 2013 |
| Docket Number | No. C 12-4012-MWB,No. CR 09-4039-MWB,C 12-4012-MWB,CR 09-4039-MWB |
| Parties | TONY TERRELL GOLDEN, Petitioner, v. UNITED STATES OF AMERICA, Respondent. |
| Court | U.S. District Court — Northern District of Iowa |
PETITIONER'S SECTION 2255
MOTION
TABLE OF CONTENTS
This case is before me on petitioner Tony Terrell Golden's Pro Se Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1), filed on January 23, 2012. Golden claims that the attorney who represented him at the trial level provided him with ineffective assistance of counsel. The respondent denies that Golden is entitled to any relief on his claims.
On July 23, 2009, Golden was charged by a three-count Indictment (Crim. docket no. 1). Count one charged Golden with conspiracy to distribute 50 grams or more of "crack cocaine" from about 2004 through June 26, 2009. See Crim. docket no. 1. Count two charged Golden with possession with intent to distribute 50 grams or more of "crack cocaine" on or about June 26, 2009. Count three charged Golden with distribution of 2.6 grams of "crack cocaine" on or about June 3, 2009, within 1000 feet of a public school. See Crim. docket no. 2. On July 31, 2009, Golden signed and filed a Written Waiver Of Personal Appearance At Arraignment (Crim. docket no. 4), which contained a plea of not guilty to all three counts of the indictment. On July 31, 2009, then Chief United States Magistrate Judge Paul A. Zoss entered an Order accepting the waiver of the appearance of Golden and entering his plea of not guilty to each count. See Crim. docket no. 4.
On October 16, 2009, Golden appeared in front of Judge Zoss and entered his plea of guilty to count one and count two of the indictment. See Crim. docket no. 12. Judge Zoss signed and filed a Report And Recommendation Concerning Plea of Guilty (Crim.docket no. 13), recommending acceptance of Golden's guilty pleas, on October 16, 2009. I entered an Order Concerning Magistrate's Report And Recommendation Regarding Defendant's Guilty Plea (Crim. docket no. 16), thereby accepting Golden's guilty pleas, on November 2, 2009.
Golden filed a Motion For Downward Variance (Crim. docket no. 21), on December 23, 2009, on the basis of the sentencing disparity between crack and powder cocaine. On January 4, 2010, the Government filed a Response To Defendant's Motion For Variance (Crim. docket no. 24), asserting that even if the sentencing disparity between crack and powder cocaine were considered a mitigating factor, there were sufficient aggravating factors in Golden's case, including Golden's past history of violence and his past and current involvement in drugs, to support denial of a downward variance. See Crim. docket no. 24.
Golden appeared before me for sentencing on January 5, 2010. See Crim. docket no. 25. I found that the total offense level was 30, that the criminal history category was 4, that the advisory guideline range was 135 to 168 months and that there was a mandatory minimum ten year sentence. Sent. Trans. at 21-22. I then denied Golden's motion for a downward variance, and instead varied upward on the ground that Golden's selling of drugs was entered into and continued out of greed and not because of a dependence on drugs, he had virtually no work history, his prior violent criminal history, and his prior record of parole revocations, as well as the fact that Golden's prior conviction for attempted murder took place as part of a crack cocaine deal, were all aggravating factors. Sent. Trans. at 22-23. I varied upward to a 180 month sentence, on counts one and two, to run concurrently. Sent. Trans. at 23.
Golden, by counsel, filed a Notice of Appeal (Crim. docket no. 32), to the United States Court of Appeals for the Eighth Circuit on January 15, 2010. On January 21, 2010,Golden filed an Amended Notice of Appeal (Crim. docket no. 36). On August 29, 2010, the Eighth Circuit Court of Appeals, on a per curiam basis, affirmed Golden's sentence, finding that the record indicated an adequate justification for my upward variance and my analysis of the § 3553(a) factors. See Crim. docket no. 45.
On September 6, 2011, Golden filed a Pro Se Motion Under § 2255 To Vacate, Set Aside, Or Correct Sentence By A Person In Federal Custody (Civ. docket no. 1). On September 7, 2011, Golden filed a Pro Se Supplement (Civ. docket no. 3), to his § 2255 Motion, providing an affidavit in support of his motion. The Respondent filed an Answer (Civ. docket no. 4), on September 30, 2011. On March 29, 2012, Golden, by counsel, filed an Opening Brief (Civ. docket no. 8). The Respondent filed a Government's Response And Memorandum In Support Of Government's Response To Defendant's Motion (Civ. docket no. 13), on May 30, 2010. Golden, by counsel, filed a Reply To Government's Responsive Brief (Civ. docket no. 14), on June 29, 2010.
Section 2255 of Title 28 of the United States Code provides as follows:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground [1] that the sentence was imposed in violation of the Constitution or laws of the United States, or [2] that the court was without jurisdiction to impose such sentence, or [3] that the sentence was in excess of the maximum authorized by law, or [4] is otherwise subject tocollateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (); Bear Stops v. United States, 339 F.3d 777, 781 (8th Cir. 2003) (). Thus, a motion pursuant to § 2255 "is 'intended to afford federal prisoners a remedy identical in scope to federal Habeas corpus.'" United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993) (quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One "well established principle" of § 2255 law is that "'[i]ssues raised and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding based on 28 U.S.C. § 2255.'" Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010) (quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339 F.3d at 780. One exception to that principle arises when there is a "miscarriage of justice," although the Eighth Circuit Court of Appeals has "recognized such an exception only when petitioners have produced convincing new evidence of actual innocence," and the Supreme Court has not extended the exception beyond situations involving actual innocence. Wiley, 245 F.3d at 752 . Just as § 2255 may not be used to relitigate issues raised and decided on direct appeal, it also ordinarily "is not available tocorrect errors which could have been raised at trial or on direct appeal." Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir. 1993) (per curiam). "Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in Habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent." Bousley v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
"Cause and prejudice" to resuscitate a procedurally defaulted claim may include ineffective assistance of counsel, as defined by the Strickland test, discussed below. Theus, 611 F.3d at 449. Indeed, Strickland claims are not procedurally defaulted when brought for the first time pursuant to § 2255, because of the advantages of that form of proceeding for hearing such claims. Massaro v. United States, 538 U.S. 500 (2003). Otherwise, "[t]he Supreme Court recognized in Bousley that 'a claim that "is so novel that its legal basis is not reasonably available to counsel" may constitute cause for a procedural default.'" United States v. Moss, 252 F.3d 993, 1001 (8th Cir. 2001) (). The "actual innocence" that may overcome either procedural default or allow relitigation of a claim that was raised and rejected on direct appeal is a demonstration "'that, in light of all...
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