Gould v. United States, CIVIL ACTION NO. 7:11-CV-141-0-BL

• Decision Date: 05 February 2015
• Docket Number: CIVIL ACTION NO. 7:11-CV-141-0-BL
• Parties: CARLOS RASHAD GOULD, No. 33934-177 Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Northern District of Texas

CARLOS RASHAD GOULD, No. 33934-177 Petitioner, v. UNITED STATES OF AMERICA, Respondent.

CIVIL ACTION NO. 7:11-CV-141-0-BL

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF TEXAS WICHITA FALLS DIVISION

February 5, 2015

Referred to U.S. Magistrate Judge

REPORT AND RECOMMENDATION

Before the Court is Petitioner Carlos Rashad Gould's post-conviction challenge under 28 U.S.C. § 2255, filed November 7, 2011. (Doc. 1). Petitioner is currently being housed at the Federal Correctional Institution in El Reno, Oklahoma. For the reasons stated herein, the Court recommends that Petitioner's § 2255 motion be dismissed.

I.

Petitioner was a co-defendant in a seven-count indictment consisting of drug trafficking and firearm charges. United States v. Gould, 529 F.3d 274, 275 (5th Cir. 2008); (Doc. 1, p. 1); (Doc. 5, p. 2); (Doc. 16, p. 1). Petitioner pled guilty to violating 21 U.S.C. § 846 and 18 U.S.C. § 942(c), for conspiring to traffic 50 grams or more of cocaine base (Count 1), and possessing a firearm in furtherance of a drug trafficking crime (Count 3). Gould, 529 F.3d 274; (Doc. 1, p. 1); (Doc. 5, p. 2); (Doc. 16, p. 1). As a result, Petitioner was sentenced to a total of 270 months in a federal penitentiary. Gould, 529 F.3d 274; (Doc. 5, p. 2); (Doc. 16, p. 1). On his first direct appeal, the Fifth Circuit vacated Petitioner's sentence and remanded the case for resentencing. Gould, 529 F.3d at 275; (Doc. 1, p. 8); (Doc. 5, p. 3); (Doc. 16, p. 2). Petitioner was resentencedto a total of 197 months in prison on August, 20, 2008. (Doc. 1, p. 8); (Doc. 5, p. 2); (Doc. 16, p. 2). This sentence was affirmed by the Fifth Circuit on July 29, 2009, and the Supreme Court on November 15, 2010. United States v. Gould, 329 Fed. App'x 569 (5th Cir. 2009); Abbott v. United States, 131 S. Ct. 18, 31 (2010); (Doc. 16, p. 2). Petitioner then filed this timely § 2255 motion.

II.

On January 22, 2015, the Court granted Petitioner's motion to supplement his complaint and seek relief on an additional ground. (Doc. 32). After reviewing Petitioner's motion to vacate, the numerous attachments and briefs filed therewith, the Government's response, and Petitioner's reply, the Court finds that Petitioner seeks relief on four grounds:

1. Whether Petitioner's rights were violated "when his sentence was significantly increased" by facts not included in the plea bargain or decided upon by the jury, in violation of Alleyne v. United States, 133 S. Ct. 2151 (2013);

2. Whether the Fair Sentencing Act of 2010 (FSA), and Pepper v. United States, 131 S. Ct. 1229 (2011), apply retroactively to Petitioner;

3. Whether Petitioner's counsel was ineffective for failing to argue that Petitioner was being held accountable for a quantity of drugs that was possessed by his coconspirator before the conspiracy began; and

4. Whether Petitioner's counsel was ineffective for failing to file a motion to suppress certain evidence.

(Doc. 5); (Doc. 29).

In response, the Government asserts that Petitioner is "procedurally barred from raising his claim under Pepper because he failed to raise it at his resentencing and direct appeal," theFSA does not apply retroactively, and that Petitioner cannot satisfy the Strickland test to show that his counsel was ineffective. (Doc. 16).

III.

28 U.S.C. § 2255 allows a prisoner to move the convicting court to vacate, set aside, or correct his conviction or sentence on four grounds: "(1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is otherwise subject to collateral attack." United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996) (internal marks omitted). When the conviction is a result of a guilty plea, a post-conviction challenge under § 2255 will only be successful "if: (1) the plea was not entered voluntarily or intelligently, . . . or (2) the [prisoner] establishes that he is actually innocent of the underlying crime." United States v. Sanders, 157 F.3d 302, 305 (5th Cir. 1998). "Relief under . . . § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996) (citations and internal quotation marks omitted); United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981).

New points of error may only be raised on collateral attack upon a showing of both "cause for [the] procedural default and actual prejudice due to any such errors." Placente, 81 F.3d at 558; United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc); Murray v. Carrier, 477 U.S. 478, 493 (1986). "Even then, any new assertion of error is limited to 'issues of constitutional or jurisdictional magnitude.'" United States v. Odiodio, No. 3:03-cv-0896-D, 2005 WL 2990906 *5 (N.D. Tex. November 7, 2005) (quoting Shaid, 937 F.2d at 232). The cause and prejudice standard is "a significantly higher" threshold to meet than the plain-error standardapplied on direct appeal. Shaid, 937 F.2d at 232 (quoting United States v. Frady, 456 U.S. 152, 165-66 (1982)). This is "to ensure that final judgments command respect and that their binding effect does not last only until 'the next series of endless post[-]conviction collateral attacks.'" Shaid, 937 F.2d at 232 (quoting Frady, 456 U.S. at 165-66). The only exception to this demanding standard, is when "a movant can establish a fundamental miscarriage of justice, i.e., that he . . . is actually innocent of the crime convicted." Odiodio, 2005 WL 2990906 at *5; Shaid, 937 F.2d at 232; Carrier, 477 U.S. at 496; see Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); United States v. Sorrells, 145 F.3d 744, 750 (5th Cir. 1998) ('"actually innocent' standard imposes a higher burden on [prisoners] than the 'prejudice' prong in the cause and prejudice standard"); see Rodriguez v. Johnson, 104 F.3d 694, 697 (5th Cir. 1997).

IV.

A.

This Court allowed Petitioner to supplement his original motion, (Doc. 32), and add a claim alleging that his rights were violated "when his sentence was significantly increased" by facts not included in the plea bargain or decided upon by the jury, in violation of Alleyne v. United States, 133 S. Ct. 2151. (Doc. 29). Specifically, Petitioner asserts that he was held "accountable for additional unindicted, uncharged, unsubstantiated, uncorroborated 3000 grams of powder cocaine allegedly possessed by [Petitioner's] co-defendant, before the conspiracy of conviction began. . . ." (Doc. 29, p. 3). Petitioner concedes his objection was "foreclosed by case law precedent" at the time of sentencing, but argues that the 2013 Supreme Court holding in Alleyne, serves as intervening law that should apply to his case. (Doc. 29, p. 4).

Because it is well-settled that Alleyne does not apply retroactively, Petitioner cannot rely on its principles for relief, and as such, no relief is warranted. In re Kemper, 735 F.3d 211 (5thCir. 2013) ("the Supreme Court did not declare that Alleyne applies retroactively on collateral review"); United States v. Olvera, ___ F.3d ___, 2015 WL 110149 (5th Cir. 2015) ("We reiterate that Alleyne does not apply retroactively."); Hughes v. United States, 770 F.3d 814, 817-19 (9th Cir. 2014); In re Mazzio, 756 F.3d 487, 489-91 (6th Cir. 2014); United States v. Reyes, 755 F.3d 210, 212-13 (3d Cir. 2014); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013) (per curiam); United States v. Stewart, 540 Fed. App'x 171, 172 n. 1 (4th Cir. 2013) (per curiam); In re Payne, 733 F.3d 1027, 1029-30 (10th Cir. 2013); Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013); O'Neal-Sloane v. Warden, 576 Fed. App'x 63 (3d Cir. 2014) ("Alleyne does not apply retroactively to cases on collateral review").

B.

Petitioner next contends that the Fair Sentencing Act of 2010 should be applied to his case because direct review by the Supreme Court was still pending when the FSA was enacted. (Doc. 1, 5, 29). Thus, Petitioner argues his conviction was not final, and the FSA should be applied as an "intervening change in law. . . [that] applies to all cases pending on direct review." (Doc. 29, p. 11).

In United States v. Doggins, the Fifth Circuit held that because the FSA did not explicitly state its intention to be applied retroactively, the Savings Statute, 1 U.S.C. § 109, prevents any retroactive application. 633 F.3d 379, 384 (5th Cir. 2011). Thereafter, the Supreme Court held in United States v. Dorsey that although the FSA does not explicitly allow retroactive application, "Congress intended the [FSA's] more lenient penalties to apply to offenders who committed crimes before August 3, 2010, but were sentenced after that date." 132 S. Ct. 2321, 2331 (2012) (emphasis added); United States v. Kelley, 716 F.3d 180, (5th Cir. 2013); United States v. Barrow, 557 Fed. App'x 362 (5th Cir. 2014); United States v. Mason, 519 Fed. App'x 257, 258(5th Cir. 2013) ("the FSA is not retroactively applicable because [petitioner] was sentenced in 2002 before the FSA's effective date."); United States v. Reed, 490 Fed. App'x 633 (5th Cir. 2012). This narrow application does not make the FSA "retroactive" in a way that would allow for a reduction of a sentence imposed prior to its passage. See Kelley, 716 F.3d at 181. Indeed, the Fifth Circuit has declined to apply the FSA in cases where prisoners were resentenced after the passage of the FSA. Kelley, 713 F.3d at 181.

The FSA took effect on August 3, 2010. Dorsey, 132 S. Ct. 2321. The sentence now challenged on collateral attack was imposed on August 20, 2008. (Doc. 1, p. 8). The fact that Petitioner's direct appeal was pending in the Supreme Court is of no consequence. As such, Petitioner may not seek application of the FSA through this § 2255 motion.

C.

Petitioner moves the Court to vacate the...