United States v. Guillory
| Decision Date | 27 June 2013 |
| Docket Number | CRIMINAL NO. 2:02-20062 |
| Parties | UNITED STATES OF AMERICA v. QUINCY O. GUILLORY |
| Court | U.S. District Court — Western District of Louisiana |
Before the Court is the Motion for Relief from Final Judgment pursuant to FRCP Rule 60(b) filed in proper person by Quincy O. Guillory. [rec. doc. 172]. Petitioner is currently confined at the Federal Correctional Institution in Beaumont, Texas, serving a total sentence of forty years and nine months imposed following petitioner's March 21, 2003 conviction for carjacking, using, carrying, possessing and brandishing a firearm during or in relation to a crime of violence (two counts), possession of a firearm by a convicted felon (two counts) and bank robbery. This matter was referred to the undersigned for Report and Recommendation.
By this Motion, Guillory requests that this Court vacate it's previous January 9, 2009 Judgment denying and dismissing his § 2255 Motion to Vacate pursuant to FRCP Rule 60(b)(6). Guillory contends that this Court should reconsider its prior decision based on the United States Supreme Court's subsequent decisions in Lafler v. Cooper, 132 S.Ct. 1367 (2012) and Martinez v. Ryan, 132 S.Ct. 1309 (2012).
In LaFler, the Court held that counsel's performance is deficient when counsel advises a defendant to reject a plea offer on grounds that the defendant could not beconvicted at trial and that to demonstrate prejudice from this deficient performance, the defendant must show that "but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (that is, that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed." LaFler, 132 S.Ct. at 1384-1385.
In Martinez, the Court held that, as an equitable matter, in states which do not permit the raising of an ineffective assistance of counsel claim via post-trial motion or on direct appeal, ineffective assistance in a collateral proceeding - the first proceeding in which an ineffective assistance claim may be raised - may constitute "cause" for procedural default of an ineffective assistance of counsel claim in two circumstances: (1) where the state courts did not appoint counsel in the initial-review collateral proceeding for a claim of ineffective assistance at trial or (2) where appointed counsel in the initial-review collateral proceeding, where the claim should have been raised, was ineffective under the standards of Strickland, meaning that the ineffective assistance claim is meritorious. Martinez, 132 S.Ct. at 1318-1319.
The pertinent procedural history of this case is as follows. Petitioner was convicted on March 21, 2003 of carjacking, using, carrying, possessing and brandishing a firearm during or in relation to a crime of violence (two counts), possession of a firearmby a convicted felon (two counts) and bank robbery. [rec. doc. 116]. On August 27, 2003, petitioner was sentenced to a total of forty years and nine months imprisonment. [rec. doc. 128, 129 and 133].
The United States Court of Appeal for the Fifth Circuit affirmed petitioner's convictions and sentences on August 31, 2004, and the decision was issued as a mandate on September 22, 2004. [rec. doc. 137; United States v. Guillory, 108 Fed. Appx. 175 (5th Cir. 2004)]. On direct appeal, petitioner argued that there was insufficient evidence presented at trial to link him to the offenses and that the district court erred in not ruling on his motion to suppress identification. See United States v. Guillory, 108 Fed. Appx. 175 (5th Cir. 2004). With respect to the former claim, the Fifth Circuit held that "Considering all the evidence in the light most favorable to the verdict, there was sufficient evidence presented at trial to prove that Guillory was guilty of the offenses charged." With respect to the latter claim, the Fifth circuit held that Id. at 176. The United States Supreme Court denied certiorari on January 10, 2005. Guillory v. United States, 543 U.S. 1079, 125 S.Ct. 938 (2005)
Petitioner filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 on December 21, 2005 in which he asserted the following grounds for relief: (1) that petitioner was denied due process because the government knowingly used the perjury testimony of MauriceThomas; (2) that petitioner's 25 year sentence under § 924(c)(1) was erroneous because his first conviction was not yet final; (3) that petitioner's sentence was in violation of Booker v. United States, 543 U.S. 220, 125 S.Ct. 738 (2005); and (4) that there was insufficient evidence to support petitioner's convictions. [rec. doc. 140].
Following the filing of an Answer by the government [rec. doc. 152] and a Reply by petitioner [rec. doc. 154], the Court denied and dismissed the Motion on January 9, 2009. [rec. doc. 155]. In denying relief, this Court held that petitioner's first and second claims for relief were procedurally defaulted because they had not been raised on appeal. With respect to the first claim, in discussing whether counsel's ineffectiveness could constitute cause for the default, the Court alternatively reached the merits stating that 1
Petitioner's sentencing claim asserted under § 924(c)(1) was likewise alternatively dismissed as "manifestly without merit given the Supreme Court's interpretation of the statute in Deal v. United States, 508 U.S. 129, 113 S.Ct. 1993 (1993).
Petitioner's Booker claim was rejected because Booker cannot be applied retroactively to cases on collateral review2 and any claim of ineffective assistance of counsel for failing to raise a Booker type claim on appeal is foreclosed by Fifth Circuit precedent.3
Petitioner's insufficient evidence claim was not considered because it had already been fully litigated on direct appeal and, accordingly, under Circuit precedent could not be reconsidered in a § 2255 Motion.4
Petitioner's Motion for Reconsideration was denied on January 22, 2009. [rec. doc. 157]. This Court denied a Certificate of Appealability on July 23, 2009. [rec. doc., 164].
The United States Court of Appeal for the Fifth Circuit denied a Certificate of Appealability on April 4, 2010. [rec. doc., 166].
The instant Motion was filed on May 10, 2013.
For the following reasons, the undersigned RECOMMENDS that the instant Motion for Relief from Judgment Pursuant to F.R.C.P. Rule 60(b) be construed as a second or successive federal habeas corpus petition pursuant to 28 U.S.C. § 2244(b) and therefore be DISMISSED for lack of subject matter jurisdiction, and alternatively,DENIED and DISMISSED on the merits.
In light of the above procedural history, as a threshold matter, this Court must determine whether petitioner's Motion is properly construed as a second and successive §2255 Motion to Vacate filed without proper authorization or whether this Court has jurisdiction to consider petitioner's Motion under Rule 60(b).
Petitioner cites the United States Supreme Court's decision in Gonzalez v. Crosby, 545 U.S. 524, 125 S.Ct. 2641 (2005) in support of the propriety of the instant Rule 60(b) Motion.5 In Gonzalez, the Court held that relief is available under Rule 60(b) in habeas proceedings, but only to the extent that the Motion is not inconsistent with the federal statutory provisions and rules set forth by AEDPA, including its limits on successive federal petitions. Id. at 529.
The Court held that a Rule 60(b) Motion filed after disposition of a § 2254 habeas corpus petition is properly construed as a successive habeas petition if it presents a "claim." Id. at 530. A "claim" is defined as "an asserted federal basis for relief from a state court's judgment of conviction." Id. The Court explained that a Rule 60(b) Motion filed after disposition of a § 2254 habeas corpus petition advancing one or more new"claims" or attacking the federal court's previous resolution of a "claim" on the merits, although labeled a Rule 60(b) Motion, is in substance a successive habeas petition and should therefore be treated accordingly. Id. at 530-531. The Court recognized that if this were not the case, such pleadings would be inconsistent with, and would circumvent, AEDPA's prohibitions for the filing of successive habeas corpus actions. Id. at 531.
On the other hand, when no "claim" is presented, that is, when neither the Motion itself, nor the federal judgment from which it seeks relief, substantively addresses federal grounds for setting aside the movant's conviction or sentence, allowing the Motion to proceed as denominated creates no inconsistency with the habeas statutes or rules, and therefore the Motion may properly be considered. Id. at 533. In other words, "a Rule 60(b) Motion in a § 2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction." Id. at 538. Thus, when a 60(b) Motion asserts some defect in the integrity of the federal habeas proceeding, such as a procedural argument that the federal court misapplied the federal statute of limitations, no "claim" is presented and...
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