Ricks v. United States, A-10-CA-352-LY

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtANDREW W. AUSTIN
Decision Date26 July 2013
Docket Number1:06-CR-206(1)-LY,A-10-CA-352-LY




SIGNED: July 26, 2013



Before the Court are: Todd Ricks' Motion to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255 (Dkt. # 1961); the Government's Response (Dkt. # 202); Ricks' Reply to the Government's Response (Dkt. # 215); Ricks' Motion for Summary Judgment in Part as to Grounds 6, 7, 8, 9, 25, 41, 42, 48 (Dkt. # 209); Ricks' Motion for Discovery (Dkt. # 208); and Ricks' Motion for a Hearing (Dkt. # 223). The undersigned submits this Report and Recommendation to the United States District Court pursuant to 28 U.S.C. §636(b) and Rule 1 of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges, as amended.

I. Factual Background

On September 5, 2006, Todd Ricks was charged in one-count indictment with possession of a firearm by a convicted felon, in violation of 18 U.S.C. §§ 922(g)(1). Ricks initially entered a plea of guilty to the indictment, but after obtaining new counsel, he filed a motion to withdraw his guilty plea, which was granted. Ricks went to trial on August 27, 2007, and a mistrial was declared two days later after the jury was unable to reach a verdict. On September 4, 2007, the Government filed

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a superceding indictment charging Ricks with: possession of a firearm and ammunition by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) & 924(e) (Count One); possession of a firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (Count Two); and maintaining a drug-involved premises, and aiding and betting same, in violation of 21 U.S.C. § 856(a)(1) and 18 U.S.C. § 2. On December 3, 2007, Ricks went to trial on the superceding indictment, and two days later, the jury returned a guilty verdict on all three counts. On March 5, 2008, the District Court sentenced Ricks to 240 months of imprisonment on counts one and three to run concurrently, and to 60 months on count two, to run consecutively to counts one and three, for a total imprisonment term of 300 months. The Court also imposed a three-year term of supervised release, ordered Ricks to pay a $300 special assessment fee and ordered him to forfeit a Lorcin .380 caliber pistol.

Ricks filed a direct appeal of his conviction and sentence, arguing that (1) there was insufficient evidence to show that he possessed a firearm in furtherance of a drug trafficking crime under 18 U.S.C. § 924(c)(1); (2) there was insufficient evidence to prove that he "maintained" a house for the purpose of manufacturing methamphetamine under 21 U.S.C. § 856; and (3) he was denied the effective assistance of counsel because his attorney failed to move for acquittal. On January 5, 2009, the Fifth Circuit rejected these claims and affirmed Ricks judgment and conviction. See Untied States v. Ricks, 304 F. App'x 343 (5th Cir. 2009). On May 26, 2009, the United States Supreme Court denied Ricks petition for certiorari. See 129 S.Ct. 2446 (2009).

On October 18, 2010, Ricks filed another appeal with the Fifth Circuit, this time appealing the District Court's denial of two motions. Specifically, in one motion, Ricks argued that a hung jury in his 2007 mistrial equated to a an acquittal and that he was thus entitled to a nunc pro tunc order

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of acquittal. In the other motion, Ricks sought a formal written ruling from the District Court that his motion for acquittal during the 2007 mistrial had been denied. The Fifth Circuit again rejected Ricks' arguments finding that "[t]he motions filed by Ricks in the district court were meaningless, unauthorized, and without any jurisdictional basis." See United States v. Ricks, 428 F. App'x 454, 455 (5th Cir. 2011). Accordingly, the Fifth Circuit denied the motions and dismissed Ricks' appeal as frivolous.

On May 24, 2010, Ricks filed the instant 66-page Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255.

II. Standard of Review

There are only four grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (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 was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; See United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996).

The scope of review under § 2255 is quite narrow. The Supreme Court and the Fifth Circuit have emphasized repeatedly that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991) (en banc), cert. denied, 502 U.S. 1076 (1992) (citing United States v. Friday, 456 U.S. 152, 165 (1982)). A defendant is presumed to stand "fairly and finally convicted" after conviction and exhaustion or waiver of his right to appeal. Id. As a result, review under § 2255 is ordinarily limited to questions of the Court's jurisdiction or of constitutional magnitude. Shaid, 937 F.2d at 232. Other types of error may not be raised under section 2255 unless the defendant demonstrates that the error could not have been raised on direct

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appeal and, if condoned, would result "in a complete miscarriage of justice." United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998).

Moreover, even issues of constitutional or jurisdictional magnitude may not be raised for the first time on collateral review without a showing both "cause" for the procedural default and "actual prejudice" resulting from the error. Shaid, 937 F.2d at 232. Courts must apply "this rigorous standard in order to ensure that final judgments command respect and that their binding effect does not last only until 'the next in a series of endless postconviction collateral attacks.'" Id. (quoting Frady, 456 at 165-66). However, claims based on ineffective assistance of counsel may be raised for the first time in a collateral proceeding, whether or not the issue could have been raised on direct appeal. Massaro v. United States, 538 U.S. 500, 509 (2003).

The Supreme Court has also recognized a narrow exception to the cause and prejudice standard when "a constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 493 (1986).

III. Analysis

A. Procedurally Barred Claims

1. Claims addressed by the Fifth Circuit

Several of Ricks' claims in the instant § 2255 Motion were already addressed by the Firth Circuit in his direct appeal. For example, in Claim One, Ricks argues that he should have been acquitted after a mistrial was declared in his first jury trial and requests that the Court enter a nunc pro tunc judgment of acquittal. This argument was raised and rejected by the Fifth Circuit. See Ricks, 428 F. App'x at 455. In addition, in Claims Seven and Eight, Ricks attacks his conviction under 18 U.S.C. § 924(c)(1) on grounds of insufficient evidence. Similarly, in Claims Nine, 41-42

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and 48, Ricks attacks his conviction under 21U.S.C. § 856 on insufficiency of evidence grounds. The Fifth Circuit rejected these arguments in Ricks first appeal. See Ricks, 304 F. App'x at 345-6.

"It is settled in this Circuit that issues raised and disposed of in a previous appeal from an original judgment of conviction are not considered in § 2255 Motions." See United States v. Kalish, 780 F.2d 506, 508 (5th Cir.), cert. denied, 476 U.S. 1118 (1986). Because all of the above-claims were already considered and rejected by the Fifth Circuit, this Court cannot entertain them in the instant § 2255 petition. Accordingly, Claims 1, 7-9, 41-42 and 48 should be dismissed.

2. Claims outside the scope of a § 2255 Motion

Movant has also asserted a non-constitutional claim that is not cognizable in a § 2255 Motion. In Claim 45, Ricks contends that there are clerical errors in the Presentence Investigation Report that "must be corrected." Motion to Vacate at p. 58. Such non-constitutional claims may not be asserted in a § 2255 proceeding. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) ("Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding."). However, to the extent that Ricks raises such a claim in the context of an ineffective assistance of counsel argument, the Court will address it below.

B. Constitutional and Jurisdictional Claims

The Government argues that Ricks procedurally defaulted the remaining claims in his § 2255 (with the exception of his ineffective assistance of counsel claims) because he did not assert them in his direct appeal. "It is well settled that where a defendant has procedurally defaulted a claim by failing to raise it on direct review,...

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