United States v. Palmer

• Decision Date: 14 February 2013
• Docket Number: No. 89–cr–36 (RCL).,89–cr–36 (RCL).
• Citation: 902 F.Supp.2d 1
• Parties: UNITED STATES of America, Respondent, v. Michael PALMER, Petitioner.
• Court: U.S. District Court — District of Columbia

902 F.Supp.2d 1

UNITED STATES of America, Respondent,
v.
Michael PALMER, Petitioner.

No. 89–cr–36 (RCL).

United States District Court,
District of Columbia.

Sept. 26, 2012.
Opinion Denying Certificate of Appealability Feb. 14, 2013.

[902 F.Supp.2d 4]

Margaret J. Chriss, Mary Ann Snow, U.S. Attorney's Office, Washington, DC, for Respondent.

Sandra Gayle Roland, Federal Public Defender for D.C., Washington, DC, for Petitioner.

MEMORANDUM OPINION
ROYCE C. LAMBERTH, Chief Judge.
I. Introduction

Pending before the Court is petitioner ¹ Michael Palmer's Updated Motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. [377, 378]. After carefully reviewing the petitioner's updated filings, the United States' responses, relevant earlier filings from petitioner, and applicable law, the Court will GRANT petitioner's § 2255 motion in part and DENY it in part.

II. BackgroundA. Factual History

Mr. Palmer presided over a large-scale drug business which imported large amounts of cocaine from New York City and distributed it in Washington, D.C. in the late 1980s. At petitioner's sentencing hearing, Judge Harold Greene observed that Mr. Palmer's organization “created havoc and misery in their path” for several years, selling an “estimated 100 and 200 kilos of crack into the city,” for which they earned a total of “perhaps as much as 5 to $10 million.” Transcript of Sentencing at 2, United States v. Palmer (D.D.C., 89–cr–36, Oct. 18, 1989). In addition to supplying “thousands of men, women and children with crack,” id. at 2, the organization possessed “at least 27 guns, including a machine gun, submachine guns and sawed–off shotguns” that it used to “terrorize

[902 F.Supp.2d 5]

and intimidate peaceful citizens as well as rival gangs.” Id. at 9–10.

Mr. Palmer was arrested on January 12, 1989. See Petitioner's Updated Motion to Vacate [378] at 3 n. 2. In a 23–count indictment, the United States charged Mr. Palmer and seven codefendants with multiple narcotics and firearm offenses.

Following a jury trial, Mr. Palmer was convicted on 12 Counts. At sentencing, the Court remarked that “[i]n the 25 years ... that I have been on the bench, I have seldom, if ever, seen a case in which the evidence was as overwhelming as it was in this case ... and particularly [as to] the guilt of Mr. Palmer.” Transcript of Sentencing, at 7. The Court sentenced Mr. Palmer as follows:

• Count 1—Conspiracy to distribute and possess with intent to distribute crack and powder cocaine between January 1987 and January 12, 1989 in violation of 21 U.S.C. §§ 841(a) & 846.

• Sentence: life imprisonment.

• Count 2—Being the organizer, supervisor or manager of a continuing criminal enterprise (CCE) that involved at least 1500 grams of cocaine base between January 1987 and January 12, 1989 in violation of 21 U.S.C. § 848(b).

• Sentence: life imprisonment without parole (LWOP).

• Count 3—Conspiracy to use or carry firearms during and in relation to drug trafficking crimes between January 1987 and January 12, 1989 in violation of 18 U.S.C. §§ 371 & 924(c).

• Sentence: 5 years.

• Count 4—Use of juveniles in drug trafficking offenses between January 1987 and January 12, 1989 in violation of 21 U.S.C. § 845(b) & 18 U.S.C. § 2.

• Sentence: 20 years.

• Count 5—Possession with intent to distribute five grams or more of crack cocaine on or about March 3, 1987 in violation of 21 U.S.C. §§ 841(a) & 841(b)(1)(A)(iii) & 18 U.S.C. § 2.

• Sentence: 5 years.

• Count 6—Using or carrying a firearm in relation to a drug trafficking crime between November 16, 1987 and January 29, 1988 in violation of 18 U.S.C. §§ 924(c) & 2.

• Sentence: 5 years.

• Count 7—Using or carrying a firearm in relation to a drug trafficking crime on or about December 1, 1987 in violation of 18 U.S.C. §§ 924(c) & 2.

• Sentence: 5 years.

• Count 8—Distribution of powder cocaine on December 1, 1987 in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2.

• Sentence: 5 years.

• Count 11—Using or carrying a firearm in relation to a drug trafficking crime on or about February 22, 1988 in violation of 18 U.S.C. §§ 924(c) & 2.

• Sentence: 5 years.

• Count 12—Distribution of powder cocaine between July 1, 1988 and July 27, 1988 in violation of 21 U.S.C. § 841(a) and 18 U.S.C. § 2.

• Sentence: 5 years.

• Count 16—Using or carrying a firearm in relation to a drug trafficking crime on September 2, 1988 in violation of 18 U.S.C. §§ 924(c) & 2.

• Sentence: 5 years.

• Count 17—Assault with a dangerous weapon against Anthony Chung on September 2, 1988 in violation of 22 D.C. Code §§ 502 & 105.

• Sentence: 3 to 9 years.

The Court ordered that sentences for Counts 1, 3, 4, 5, 8 and 12 run concurrently with the sentence imposed on Count 2 (LWOP), and that the sentences for Counts 6, 7, 11 and 16 (all § 924(c) violations)

[902 F.Supp.2d 6]

run consecutively to each other and to the sentence imposed on Count 2. In sum, Defendant was sentenced to LWOP plus twenty years. Mr. Palmer was also ordered to pay a special assessment fee of $1,050.

Mr. Palmer was acquitted on nine counts:

• Count 9—Possession with intent to distribute 50 grams or more of crack cocaine on December 19, 1987.

• Count 10—Using or carrying firearms on December 19, 1987 in relation to the drug trafficking offenses described in Counts 1 and 9.

• Count 13—Assault with a dangerous weapon against Brenda M. in September, 1988;

• Count 14—Using or carrying a firearm on September 1, 1988 in relation to the drug trafficking offense described in Count 1;

• Count 18—Possession with intent to distribute crack cocaine on October 28, 1988;

• Count 19—Using or carrying a firearm on October 28, 1988 in relation to the drug trafficking offenses described in Counts 1 and 18;

• Count 20—Distribution of 50 grams or more of crack on January 9, 1989;

• Count 21—Using or carrying firearms on January 8, 1989 in relation to the drug trafficking offenses described in Counts 1 and 20; and

• Count 23—Receipt and possession of an unregistered machine gun on January 9, 1989.

The two remaining Counts, 15 and 22, named Mr. Palmer's co-defendants only. Mr. Palmer appealed his conviction and the D.C. Circuit affirmed. See United States v. Harris, 959 F.2d 246 (D.C.Cir.), cert. denied,506 U.S. 933, 113 S.Ct. 364, 121 L.Ed.2d 277 (1992).

B. Procedural History

Since his conviction was affirmed on appeal, Mr. Palmer has submitted many postconviction filings pursuant to § 2255 seeking to vacate, set aside or correct his sentence. This Section briefly reviews the history of those filings.

On September 15, 1995, Mr. Palmer filed a pro se Motion for New Trial [Based on] Newly Discovered Evidence, relying on Rule 33 of the Federal Rules of Criminal Procedure and “USCA title 18.” [47]. The Court denied the motion on December 5, 1995. [48]. Mr. Palmer appealed and the D.C. Circuit affirmed the denial, expressly construing Palmer's “Motion for New Trial” as a Motion to Vacate under § 2255. United States v. Palmer, 97 F.3d 593 (D.C.Cir.1996).

On April 22, 1996, the Federal Public Defender filed a Motion to Vacate Conviction Pursuant to 28 U.S.C. § 2255, asserting a single issue: Mr. Palmer's convictions under § 924(c) must be vacated under Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). [59]. On July 8, 1996, Mr. Palmer moved pro se to dismiss this motion, arguing that it was filed without his knowledge or consent. [73]. He did so in order to avoid being barred from raising additional issues in his own motion to vacate, which could have been barred as “successive” after the FPD's motion. Later, with both motions still pending, Mr. Palmer apparently changed his mind about the FPD motion, and on April 8, 1997, Mr. Palmer filed pro se a Motion to Amend, seeking to adopt the FPD's Bailey claim. [88]. On the same date, Mr. Palmer also filed his own Motion to Vacate under § 2255, adding numerous issues to the single Bailey issue raised by counsel in its previous motion. [89].

On June 2, 1997, the Court granted Palmer's initial motion to dismiss FPD's

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Motion to Vacate based on Bailey. [104]. The Court also denied two additional claims Palmer had raised in his April 8 Motion to Vacate, and directed the government to respond to his remaining claims. Id. On June 12, 1997, the government filed a response, asserting that because the D.C. Circuit had construed Palmer's initial 1995 post-conviction motion as a Motion to Vacate under § 2255, the April 8, 1997 Motion was barred as a successive motion under the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA). [109]. Palmer filed a Response on June 23, 1997 [111], a Supplemental Reply on July 22, 1997 [119], a Second Supplemental Reply on August 8, 1997, [123] and an additional Supplement and Amendment on October 29, 1998. [170]. The government filed another brief in opposition on March 24, 1999, reiterating that Palmer's Motion was barred as a successive motion, claiming that Palmer's claims were in any event procedurally barred since he had failed to raise them on direct appeal, and also attacking his claims on their merits. [174]. Palmer filed a Reply on August 24, 1999. [185].

On December 30, 1999, the district court dismissed Palmer's § 2255 claims as successive. [188]. Palmer appealed. SeeBrief for Appellant, United States v. Palmer, 2001 WL 36040241 (D.C.Cir. Brief filed June 18, 2001). On June 18, 2001, while his appeal was pending, Palmer filed an additional § 2255 motion in the district court. [198]. On July 19, 2002, the D.C. Circuit reversed the District Court's December 1999 dismissal of Palmer's claims as successive and remanded. See United States v. Palmer, 296 F.3d 1135 (D.C.Cir.2002).

On remand from the D.C. Circuit, the district court issued an order [216] on September 10, 2003 dismissing without prejudice defendant's pending § 2255 motions—those filed on April 8, 1997 [89], October 29, 1998 [170], June 18, 2001 [198]—and ordered him to file a consolidated motion that...