Goldman v. Winn

• Citation: 565 F.Supp.2d 200
• Decision Date: 01 July 2008
• Docket Number: G.A. No. 04-12712-MLW.
• Parties: Franklin M. GOLDMAN, Petitioner v. David L. WINN, Warden, United States of America, Respondents.
• Court: U.S. District Court — District of Massachusetts

565 F.Supp.2d 200

Franklin M. GOLDMAN, Petitioner v. David L. WINN, Warden, United States of America, Respondents.

G.A. No. 04-12712-MLW.

United States District Court, D. Massachusetts.

July 1, 2008.

Robert M. Goldstein, Boston, MA, for Petitioner.

Nancy Rue, Sandra S. Bower, United States Attorney's Office, Boston, MA, for Respondents.

MEMORANDUM AND ORDER

WOLF, District Judge.

I. SUMMARY

In 1993, petitioner Franklin Goldman was convicted in this federal court of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. Ordinarily, the Guideline range for Goldman's offenses would have been 121 to 151 months.¹ If Goldman had been sentenced in 1993 to 121 months in custody, he would have been released no later than August 15, 2002. If he had been sentenced to 151 months in custody, he would have been released no later than February 15, 2005.

However, a defendant with at least two felony convictions for either a crime of violence or a controlled substance offense was classified as a Career Offender and had an increased Guidelines range. See U.S.S.G. § 4B1.1. In 1993, Goldman had two such convictions. Therefore, the Guideline range for his sentence was 360 months to life. In 1993, the late Judge A. David Mazzone sentenced Goldman, who was then forty-nine years old, to 360 months—thirty years—in prison. Thus, Goldman's status as a Career Offender added seventeen to twenty years to his sentence.

In 1993, Goldman had only two prior convictions that qualified for Career Offender purposes. One was a 1977 conviction in the Massachusetts Superior Court for the alleged kidnapping of Jeffrey Lopes. Goldman and two co-defendants, Francis Larkin and Ralph Mondello, were convicted in a non-jury trial by Superior Court Justice Vincent R. Brogna. Goldman was given a five to ten year sentence to be served concurrently with another sentence that he was then serving. Therefore, in 1977, the sentence imposed in the kidnapping case had no consequences for Goldman.

Nevertheless, in 1977 Goldman attempted to appeal his conviction and sentence. However, Justice Brogna denied his requests for appointment of counsel and for a transcript of the trial. In the absence of a transcript, Goldman's appeals were dismissed without ever being reviewed on their merits.

After the 1977 kidnapping conviction had dramatic consequences for the federal sentence imposed on Goldman in 1993, he promptly sought to have a series of four attorneys move to vacate that conviction in state court. Despite Goldman's efforts, it was not until 2000 that a motion for a new trial was filed on his behalf. In 2001, that motion was granted and Goldman's 1977 conviction was vacated. In 2002, the state decided not to retry Goldman.

In 1994, the Supreme Court had held that a defendant or prisoner who wished to challenge a state conviction that resulted in a federal sentencing enhancement could not do so in a federal sentencing proceeding. Custis v. United States, 511 U.S. 485, 114 S.Ct. 1732, 128 L.Ed.2d 517 (1994).² Rather, the Supreme Court indicated that the proper procedure would be to move to vacate the state sentence in state court and, if successful, "apply for reopening of any federal sentence enhanced by the state sentence[]." Id. at 497, 114 S.Ct. 1732.

Therefore, the vacatur of the kidnapping conviction in 2001 would ordinarily have made Goldman eligible for resentencing and for a substantial reduction of his sentence that could have resulted in his immediate release. Recognizing this, Goldman promptly filed in 2002 a motion to reopen his federal sentencing in accordance with the prescription in Custis. Such motions are now relatively common and generally result in a reduction of a federal sentence after a material state court conviction has been vacated.

At this point, however, Goldman and the courts confronted a complex series of procedural issues. By 2002, Goldman had unsuccessfully appealed his 1993 federal conviction. In 1995, prior to the enactment of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA") in 1996, Goldman also filed an unsuccessful motion pursuant to 28 U.S.C. § 2255 to correct his sentence. Evidently recognizing that Custis indicated that challenges to state convictions must first be successfully made in state court, Goldman's 1995 § 2255 motion did not challenge his Career Offender status. Prior to AEDPA there was no bar on filing a second, successive § 2255 motion. Therefore, when he filed his § 2255 motion Goldman would have reasonably expected to have been able to challenge his Career Offender status in a second § 2255 motion if he later succeeded in getting his 1977 conviction for kidnapping vacated. However, in 1996 AEDPA, among other things, imposed a one-year statute of limitations on § 2255 motions and prohibited federal prisoners from filing second or successive § 2255 motions except in very limited circumstances.

Although Goldman styled his 2002 submission as a motion to reopen his 1993 federal sentencing as Custis instructed, Judge Mazzone construed it as a second or successive § 2255 motion which could not, under AEDPA, be considered without leave of the First Circuit. The First Circuit subsequently denied Goldman leave to file a second § 2225 motion because he had not made a prima facie showing that he had newly discovered evidence which, if credible, would establish by clear and convincing evidence that no reasonable factfinder would find him guilty of the drug crimes for which he was convicted in federal court in 1993.

Therefore, in 2004, Goldman filed the instant petition pursuant to 28 U.S.C. § 2241. Section 2241 empowers the federal courts to hear and grant petitions for writs of habeas corpus, and provides an equitable remedy to federal prisoners in very limited circumstances when § 2255 is inadequate or ineffective to challenge their detention. The First Circuit has not decided all issues concerning when § 2241 is available to federal prisoners. However, it has repeatedly emphasized that a claim of actual innocence will have a mechanism for review, including under § 2241 if § 2255 is unavailable. The standard for demonstrating actual innocence has been developed in the procedural default context, where courts recognize that a meritorious showing of actual innocence permits collateral review of claims otherwise defaulted by a petitioner's failure to raise them earlier. It is a very high standard. It is rarely met. However, this is one of those rare cases.

Here, the government argues that even if Goldman is permitted access to § 2241, his claims are procedurally defaulted because he did not raise them in an earlier proceeding and are barred because he did not pursue vacatur of his state court conviction with sufficient diligence. The court finds, however, that Goldman was sufficiently diligent in seeking to vacate his 1977 conviction after it had consequences for his federal sentence. Nevertheless, his claims would ordinarily be procedurally defaulted because of his failure to challenge his 1977 conviction during his 1993 federal sentencing hearing. However, his clear and convincing showing of actual innocence excuses this default.

After many hearings focusing primarily on the challenging procedural issues in this case, in 2007 Goldman obtained crucial new evidence of his actual innocence of the purported 1975 kidnapping of Lopes. That evidence was tested at a March, 2008 evidentiary hearing. The court finds that evidence to be credible and compelling. It provides clear and convincing proof that no fully informed reasonable juror would have convicted Goldman of kidnapping Lopes. Therefore, Goldman is entitled to be resentenced for his 1993 federal conviction without regard to that conviction.

As explained in detail in § III(C)(2), infra, although there is no transcript of the 1977 state, trial, the relevant police reports indicate that the critical witness was Jeffrey Lopes, the purported victim of the kidnapping. He claimed to have been kidnapped from the Stadium Cafe by three men, who demanded that his father, an incarcerated associate of La Cosa Nostra Boss Raymond Patriarca, pay money to them' to protect Lopes and his family from harm. Lopes and other witnesses identified Larkin and Mondello as two of the three men who came to the Cafe. Investigation demonstrated that Lopes was transported in vehicles rented by Larkin and Mondello. Larkin was arrested at the place where the payment for Lopes' protection was to have been made. Larkin was also identified as being in the motel where Lopes was taken after Mondello's own vehicle was disabled in a snow storm, and Larkin's fingerprint was found there.

In the police reports, Goldman is not identified by anyone as being at the Cafe or motel. He is identified by two service station operators as a person who dealt with them concerning the disabled vehicle.

The court assumes that Lopes identified Goldman at trial as one of his kidnappers. However, the contemporaneous records indicate that Goldman was impermissibly shown to Lopes and other witnesses prior to the jury-waived trial before Justice Brogna. Francis O'Boy, the former Assistant District Attorney who prosecuted Goldman, Mondello, and Larkin, characterized Lopes as a "despicable" person.

Therefore, the evidence that Goldman was involved in the purported 1975 kidnapping of Lopes was weak at the time he was tried in 1977. Significant, new exculpatory evidence was presented at the March, 2008 evidentiary hearing in this matter. First, Ralph DeLeo, an associate of Goldman, Mondello, and Larkin in the 1970s, credibly explained that he was the third person involved in the purported kidnapping of Lopes. According to DeLeo, Lopes owed a substantial debt. Harvey Brower, a criminal defense lawyer associated with Patriarca who later became a federal felon, arranged with Lopes a phony kidnapping to extort money from Lopes' father which would be used...