United States v. Ocampo

• Decision Date: 28 January 2013
• Docket Number: Case No. 06–20172–01.
• Citation: 919 F.Supp.2d 898
• Parties: UNITED STATES of America, Plaintiff–Respondent, v. Robert James OCAMPO, Defendant–Petitioner.
• Court: U.S. District Court — Eastern District of Michigan

919 F.Supp.2d 898

UNITED STATES of America, Plaintiff–Respondent,

v.Robert James OCAMPO, Defendant–Petitioner.

Case No. 06–20172–01.

United States District Court,

E.D. Michigan,

Northern Division.

Jan. 28, 2013.

Janet L. Parker, U.S. Attorney's Office, Bay City, MI, for Plaintiff–Respondent.

ORDER OVERRULING PETITIONER'S AND RESPONDENT'S OBJECTIONS, ADOPTING REPORT AND RECOMMENDATION, GRANTING IN PART AND DENYING PETITIONER'S MOTION TO VACATE, GRANTING RESPONDENT'S MOTION TO STRIKE, AND STRIKING PETITIONER'S MOTION TO SUPPLEMENT

THOMAS L. LUDINGTON, District Judge.

For Petitioner Robert Ocampo's involvement in a drug trafficking conspiracy, a jury convicted him of various drug and firearm offenses. This Court sentenced Petitioner to 420 months imprisonment. The Sixth Circuit affirmed the convictions and sentence. The Supreme Court denied a writ of certiorari.

Returning to this Court, Petitioner moved to vacate the sentence pursuant to 28 U.S.C. § 2255. ECF No. 416. The motion was referred to Magistrate Judge Charles E. Binder pursuant to 28 U.S.C. § 636(b)(1)(B). Judge Binder has issued a report recommending that the Court grant in part and deny in part Petitioner's motion. ECF No. 433. Both Petitioner and Respondent United States have filed objections. For the reasons that follow, both sets of objections will be overruled, Judge Binder's report and recommendation will be adopted, and Petitioner's motion will be granted in part and denied in part.

Briefly, Petitioner was convicted for violating 18 U.S.C. § 922(g)(1), which prohibitsfelons from possessing firearms. And, based on the same conduct, he was also convicted for violating § 922(g)(3), which prohibits unlawful users of controlled substances from possessing firearms. This violated Petitioner's rights under the Double Jeopardy Clause, such that counsel was ineffective for not raising the issue. See, e.g., United States v. Parker, 508 F.3d 434, 440 (7th Cir.2007) (“Those circuits that have addressed the question are in unanimous agreement that § 922(g) cannot support multiple convictions based on a single firearm possession because the allowable unit of prosecution is the incident of possession, not the defendant's membership in a class (or classes) of persons disqualified from possession.”).

Counsel's error, it must be acknowledged, is understandable. Counsel's focus, presumably, was on reducing Petitioner's actual sentence rather than the sentences for a pair convictions that had no impact on the amount of time that Petitioner will spend in federal prison. Nevertheless, it was error. Accordingly, his conviction for one of the two violations of § 922(g) will be vacated (specifically, his conviction under § 922(g)(3)). And his judgment of sentence will be amended to reflect a single violation of § 922(g) (specifically, a conviction under § 922(g)(1)). The remainder of Petitioner's claims for habeas relief, however, will be denied.

I

A

Long-term surveillance by law enforcement in the mid–2000s uncovered a marijuana and cocaine trafficking operation centered in Saginaw, Michigan. Petitioner was one of the individuals observed participating in the operation. Between January 2005 and March 2006, Petitioner made at least 28 trips from Michigan to other states. His conduct on these trips, law enforcement observed, was consistent with drug trafficking.

In March 2006, a four-count criminal complaint was filed against Petitioner. ECF No. 1. The same day, law enforcement executed search warrants of Petitioner's residence and storage unit. Law enforcement recovered about $80,000 in cash, several bricks of marijuana packaged for distribution, and a number of travel and financial documents related to the operation from Petitioner's residence. From his storage unit, law enforcement recovered weapons, ammunition, and more documents.

By the time that the grand jury had issued a fourth superseding indictment in October 2006, the alleged criminal conspiracy grew to include seven defendants and 36 criminal charges. ECF No. 62. In that indictment, Petitioner was charged with seven crimes: (1) conspiracy to possess with intent to distribute at least 5 kilograms of a substance containing cocaine and at least 100 kilograms of marijuana in violation of 21 U.S.C. § 846; (2) knowing use and maintenance of a residence for the purpose of distributing and using controlled substances in violation of 21 U.S.C. §§ 856(a)(1) and 860; (3) distribution of marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); (4) possession with intent to distribute marijuana in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(D); (5) felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); (6) felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(3); and (7) possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c).

B

Petitioner's trial was held in November 2007. The jury found Petitioner guilty on all seven counts. ECF No. 161. In July 2008, Petitioner was sentenced to 360 months on counts 1, 2, 5, and 6, as well as 60 months on counts 3 and 4, with the terms to be served concurrently. ECF No. 223. Additionally, Petitioner was sentenced to 60 months on count 7, to be served consecutively to the sentences imposed in counts 1 through 6. Id.

Petitioner appealed to the Sixth Circuit, “alleging error in the district court's denial of a motion to suppress evidence, exclusion of certain hearsay testimony, denial of a motion to acquit based on the sufficiency of the evidence, failure to act on a purported Brady violation, and calculation of his advisory Sentencing Guidelines range.” United States v. Ocampo, 402 Fed.Appx. 90, 91 (6th Cir.2010). The Sixth Circuit found each of Petitioner's claims to “lack merit” and affirmed on November 15, 2010. Id. Petitioner then sought a writ of certiorari in the United States Supreme Court, which was denied on March 21, 2011. Ocampo v. United States, ––– U.S. ––––, 131 S.Ct. 1704, 179 L.Ed.2d 636 (2011).

C

In August 2011, Petitioner filed a motion to vacate pursuant to § 2255. ECF No. 346. The case was referred to Magistrate Judge Charles Binder for general case management. ECF No. 354. Petitioner went on to engage in a vigorous motion practice.¹ On October 5, and again on November 28, 2011, Judge Binder entered orders directing Petitioner to file amended briefs that complied with the local rules. (The local rules, for example, require that briefs supporting a motion not exceed 20 pages; Petitioner's first brief was 70 pages.)

In May 2011, Judge Binder granted Petitioner leave to file a second amended § 2255 motion. Petitioner did so, asserting the seven claims for relief. First, Petitioner asserts that his sentence should be vacated because “Probable Cause was legally Deficient for Arrest.” Pet'r's Br. Supp. Second Am. § 2255 Mot. 1, ECF No. 416. Second, he asserts: “Offenses carried in Indictment, Trial and Sentence that are Multiplicious and/or Duplictious Requires Dismissal and Retrial—Because they violate Double Jeopardy Clause.” Id. at 4. Third, Petitioner asserts: “There was insufficient evidence to convict Ocampo for possession of a firearm in furtherance of a drug trafficking crime.” Id. at 8. Fourth, Petitioner asserts: “District Court's decision to Admit Evidence of Prior Bad Acts that were cumulative, prejudicial and had no probative value requires retrial.” Id. at 11. Fifth, Petitioner asserts: “Denial of Franks Hearing was Court Err.” Id. at 16. Sixth, he asserts: “Overstated Criminal History and Offense Level that was Caused by Improper Classification was Prejudicial.” Id. at 20. And finally, Petitioner asserts: “United States District Court's order has denied the petitioner his constitutional due process to raise and present all available claims for relief.” Id. at 25.

The government responded. ECF No. 420. And Petitioner replied, repeatedly. ECF Nos. 422, 424, 425, 427, 429.

D

In September 2012, Judge Binder issued a report recommending the Petitioner's motion be granted in part and denied in part. ECF No. 433.

Judge Binder first notes that Petitioner was convicted of two subsections of § 922(g). Specifically, Petitioner was convicted on count 5 for violating subsection (g)(1), which prohibits felons from possessing firearms. And he was convicted on count 6 six for violating subsection (g)(3), which prohibits users of controlled substances from possessing firearms. Judge Binder goes on to report that “the subdivisions of § 922(g) do not support separate sentences for a single criminal act.” Report & Recommendation 11 (quoting United States v. Modena, 430 Fed.Appx. 444, 446 (6th Cir.2011)), ECF No. 433. Finding that Petitioner's counsel was ineffective for not raising this issue, he recommends that the Court “vacate the sentence, merge the counts of conviction into one count, and resentence the defendant based on a single conviction.” Id. (quoting United States v. Richardson, 439 F.3d 421, 423 (8th Cir.2006)). The remainder of Petitioner's claims, Judge Binder reports, lack merit.

Both Respondent and Petitioner filed objections to the report and recommendation.

E

In December 2012, Petitioner filed yet another motion to amend his § 2255 petition to add a new claim for relief. ECF No. 456. Respondent, in turn, moved to strike Petitioner's motion as untimely. ECF No. 457. For reasons detailed below, Respondent is correct. Before taking up this issue, however, a review of the parties' respective objections to the report and recommendation is undertaken.

II

A

Any party may serve and file written objections “[w]ithin fourteen days after being served with a copy” of the report and recommendation. 28 U.S.C. § 636(b)(1). The district court will make a “de novo determination of those portions of the report ... to which objection is made.” Id. The Court is not obligated to review the portions of the report to which no objection was made. Thomas v. Arn, 474 U.S. 140, 149–52...