United States v. Pollard

• Decision Date: 04 October 2022
• Docket Number: CRIMINAL 13-20887,CIVIL 19-12316
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. D-2 TAMMY DENICE POLLARD, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

UNITED STATES OF AMERICA, Plaintiff, v. D-2 TAMMY DENICE POLLARD, Defendant.

CRIMINAL No. 13-20887

CIVIL No. 19-12316

United States District Court, E.D. Michigan, Southern Division

October 4, 2022

ORDER DENYING DEFENDANT'S MOTION UNDER 28 U.S.C § 2255 [#249], DENYING AS MOOT MOTION FOR STATUS REPORT ON HEARING [#292] and DISMISSING WITH PREJUDICE CIVIL CASE NO. 19-12316

DENISE PAGE HOOD, UNITED STATES DISTRICT JUDGE

On March 3, 2015, pursuant to a Rule 11 Plea Agreement Defendant pleaded guilty to Count Three (production of child pornography, in violation of 18 U.S.C. §§ 2251(a), 2251(e), and 2) and Count Four (conspiracy to engage in sex trafficking of children, in violation of 18 U.S.C §§ 1594(c) and 1591(a)) of the First Superseding Indictment. ECF No. 110. Prior to her sentencing and after being appointed new counsel to represent her for purposes of sentencing, Defendant filed a motion to withdraw her guilty plea, ECF No. 190, which the Court denied on September 7 2016. ECF No. 208. On September 28, 2016, the Court sentenced Defendant to 180 months on Count Three and 300 months on Count Four, to be served concurrently. See ECF No. 223 (Judgment, entered on November 9, 2016).

Defendant timely appealed her conviction and sentence. Because Defendant's Rule 11 Plea Agreement included a waiver the right to appeal her conviction, on September 7, 2017, the Sixth Circuit Court of Appeals dismissed her appeal based on that appellate waiver. ECF No. 242. Defendant did not file a writ of certiorari.

On August 5, 2019, Defendant filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 (the “2255 Motion”). ECF No. 249. The 2255 Motion has been fully briefed. For the reasons set forth below, the 2255 Motion is denied.

III. Legal Standard

A. 2255 Motions

28 U.S.C. § 2255 authorizes a federal prisoner to move the district court to vacate a sentence. 28 U.S.C. § 2255(a). A defendant seeking relief under § 2255 “must allege as a basis for relief: (1) an error of constitutional magnitude; (2) a sentence imposed outside statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006) (citing Mallett v. United States, 334 F.3d 491, 496-97 (6th Cir. 2003)). When raising claims alleging errors of constitutional magnitude, a defendant must show that the constitutional error had a substantial and injurious effect or influence on the proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999). Further, relief under § 2255 requires a showing of “a fundamental defect which inherently results in a complete miscarriage of justice.” Davis v. U.S., 417 U.S. 333, 346 (1974).

B. Ineffective Assistance of Counsel Claim

Under the Sixth Amendment, a defendant has a right to “have the assistance of counsel for his defense.” U.S. Const. Amend. VI. The Sixth Amendment guarantees a defendant the right to “reasonably effective assistance of counsel.” Strickland v. Washington, 466 U.S. 668, 687 (1984). In Strickland, the Supreme Court articulated a two-prong test for ineffective counsel:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown of the adversary process that renders the result unreliable.

Id. “There is a strong presumption that legal counsel is competent,” United States v. Osterbrock, 891 F.2d 1216, 1220 (6th Cir. 1989), and “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. A “reviewing court must give a highly deferential scrutiny to counsel's performance.” Ward v. United States, 995 F.2d 1317, 1321 (6th Cir. 1993). Further, “[t]he reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). “The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.

III. Analysis

A. The 2255 Motion is Untimely and Procedurally Barred

As an initial matter, the Court notes, and Defendant acknowledges, that the 2255 Motion was not timely filed. Motions brought under Section 2255 are subject to a one-year limitations period established by the Antiterrorism and Effective Death Penalty Act of 1996, generally running from “the date on which the judgment of conviction becomes final.” 28 U.S.C. § 2253(f)(1); Dunlap v. United States, 250 F.3d 1001, 1004-05 (6th Cir. 2001). In this case, the judgment of conviction became final on or about December 7, 2017, 90 days after her appeal was dismissed by the Sixth Circuit. Accordingly, Defendant had to file her 2255 Motion on or before December 7, 2018, but she did not file her 2255 Motion until August 5, 2019, approximately eight months after the one-year statute of limitations period expired. For this reason, Defendant's 2255 Motion is procedurally barred, absent satisfaction of a recognized exception to the one-year statute of limitations.

B. Defendant Cannot Satisfy the “Actual Innocence” Exception

Defendant asserts that she qualifies for and is entitled to the “actual innocence” exception to the statute of limitations that otherwise would bar her claim. A court may entertain an untimely Section 2255 motion if the petitioner has a credible claim of actual innocence. See, e.g., Schlup v. Delo, 513 U.S. 298 (1995). As the Seventh Circuit recently stated:

“[A]ctual innocence, if proved, serves as a gateway through which a petitioner may pass whether the impediment is a procedural bar ... or ... expiration of the statute of limitations.” McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); see Schlup v. Delo, 513 U.S. 298, 317 (1995) (holding that a petitioner who procedurally defaults his claims can overcome the procedural bar if he successfully raises a claim of actual innocence-that is, if he “raise[s] sufficient doubt about [his] guilt to undermine confidence in the result”). The actual innocence gateway exception is “grounded in the ‘equitable discretion' of habeas courts to see that federal constitutional errors do not result in the incarceration of innocent persons.” Herrera v. Collins, 506 U.S. 390, 404 (1993) (quoting McCleskey v. Zant, 499 U.S. 467, 502 (1991)). To establish actual innocence, “a petitioner must show that it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.” Schlup, 513 U.S. At 327.

* * * * *

The actual innocence exception is merely a gateway through which a court can consider a petitioner's otherwise barred claims on their merits. See Herrera, 506 U.S. at 404-05. Framing the exception as a gateway presupposes that a petitioner will have underlying claims separate from the claim that he is actually innocent. “The Supreme Court has not recognized a petitioner's right to habeas relief based on a stand-alone claim of actual innocence.” Gladney, 799 F.3d at 895. Moreover, “[t]he point of the exception is to ensure that ‘federal constitutional errors do not result in the incarceration of innocent persons.'” Perrone, 889 F.3d at 903 (quoting Herrera, 506 U.S. at 404).

Lund v. United States, 913 F.3d 665, 667-68 (7th Cir. 2019).

“‘[A]ctual innocence' means factual innocence, not mere legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 (1998). “The Supreme Court has made clear that the term ‘actual innocence' means factual, as opposed to legal, innocence.” Harvey v. Jones, 179 Fed.Appx. 294, 299 (6th Cir. 2006) (citing Sawyer v. Whitley, 505 U.S. 333, 339 (1992)). Evidence of actual innocence must be premised on “new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.” Schlup, 513 U.S. at 324. “Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful.” Id.

Defendant's reliance on the actual innocence exception is misplaced, as she really argues that she was coerced by Curry to participate in the crimes and, as such, only engaged in the criminal acts under duress. As the Government notes, Defendant argues that: (a) Curry “had a psychologically coercive effect upon [her] actions” (ECF No. 249, PgID 3475); (b) she “was compelled (forced) to partake in such activities where she had not voluntarily contributed any service to [the co-defendant's] endeavors” (ECF No. 249, PgID 3476); (c) Curry “compelled [her] to hold one of the victim's legs so that he could accomplish his criminal intent” (ECF No. 249, PgID 3479); (d) she “attempted to comply with [Curry's] requests to defend her own bodily interests” (ECF No. 249, PgID 3480); and (e) the Court did not have an “adequate factual basis, because duress, coercion, or influence would have had a large impact on [her] ability to offend.” (ECF No. 249, PgID 3486). All of these arguments, however, constitute an assertion of legal, not actual, innocence.

Defendant has not presented...