Young v. United States

• Decision Date: 16 September 2011
• Docket Number: Crim. No. 2:04-CR-218,Civ. No. 2:08-CV-707
• Parties: GREGORY YOUNG. Petitioner, v. UNITED STATES OF AMERICA, Respondent.
• Court: U.S. District Court — Southern District of Ohio

GREGORY YOUNG. Petitioner,

v.UNITED STATES OF AMERICA, Respondent.

Civ. No. 2:08-CV-707

Crim. No. 2:04-CR-218

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Dated: September 16, 2011

Judge Sargus

Magistrate Judge King

ORDER and

REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings this motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. This matter is before the Court on the motion and supplemental memoranda in support, Respondent's return of writ, Petitioner's reply, Respondent's response, Petitioner's traverse, and the exhibits of the parties. Also before the Court are Petitioner's Motion for Appropriate Action, Doc. No.123, Motion for Expansion of the Record, Doc. No. 118, Motion for Correction of Clerical Error, Doc. No. 124, request for the appointment of counsel and polygraph examination and request to hold proceedings in abeyance, Doc. No. 90. Respondent has also moved to strike Petitioner's supplemental brief as time-barred, Response of United States to Defendant's Supplement to §2255 Petition, Doc. No. 115. For the reasons that follow, it is recommended that all new claims raised by Petitioner be STRICKEN as barred by the one-year statute of limitations and that the remainder of Petitioner's claims be DENIED as without merit.

FACTS and PROCEDURAL HISTORY

Petitioner challenges his June 7, 2005, convictions, after a jury trial, on possession withintent to distribute 50 grams or more of crack cocaine, and possession with intent to distribute 100 grams or more of cocaine in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii); 18 U.S.C. § 2 . Doc. No 61. The United States Court of Appeals for the Sixth Circuit summarized the facts of this case as follows:

In each count, the defendant was charged as both a principal and an aider and abettor.

Young was observed engaging in erratic driving on U.S. Route 35 south of Chillicothe by a motorist who alerted the Ohio Highway Patrol by use of his cell phone. The Highway Patrol Officer stopped Young's vehicle. The stop eventually led to the discovery of crack cocaine and powder cocaine in the vehicle and on the person of Young who was driving the vehicle. Two passengers were in the vehicle, Price Day and a woman. When the troopers opened the door of Young's vehicle, they smelled a strong odor of marijuana. The vehicle was laden with crack cocaine and powder cocaine. A bag containing in excess of 53 grams of crack cocaine was protruding from underneath the driver's side floor mat. Eventually, a bag containing in excess 52 grams of cocaine powder was found between Young's abdomen and the elastic waistband on his trousers.

A subsequent search of the trunk of Young's vehicle, based on a search warrant, led to the discovery of a "purplish colored plastic bag" with the name of "Deveroes" on it and containing clothing that fit the body type of Young rather than the other male, Price Day. In the bag, a loaded .40 caliber Glock firearm was discovered, as well as three bags containing, respectively, 54 grams of crack cocaine, 17 grams of cocaine powder, and 64 grams of cocaine powder.

Young's attorney, in the opening statement, advanced the claim that the cocaine powder found on Young's person was for his own personal use.

United States v. Young, 243 Fed.Appx. 105, unpublished, 2007 WL 1958631, at *1 (6th Cir. July 3, 2007). After a jury trial, Petitioner was found guilty as charged. On March 23, 2006, the Court imposed an aggregate prison term of 240 months plus five years supervised release. Doc. Nos. 71, 72. Petitioner filed a timely appeal in which he argued that the evidence was constitutionallyinsufficient to sustain his convictions.¹ On July 3, 2007, the United States Court of Appeals for the Sixth Circuit affirmed Petitioner's convictions and sentence. United States v. Young, 2007 WL 1958631. On May 11, 2009, Petitioner filed a motion for retroactive application of the sentencing guidelines to crack cocaine offenses, Doc. No. 94, which was denied on July 23, 2009, Doc. Nos. 99, 100, 103. On October 8, 2010, the United States Court of Appeals for the Sixth Circuit affirmed that denial. See Doc. No. 110.

Meanwhile, on July 22, 2008, Petitioner sought, by way of a letter addressed to this Court, to vacate his sentence. This letter was received by the Court as a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Doc. No. 85. On October 6, 2008, Petitioner supplemented that motion with a form petition under 28 U.S.C. § 2255. Doc. No. 86. He asserted the following claims in that filing, which the Court will regard as Petitioner's operative filing:

1. Evidence was insufficient to support the verdict.

Appellate attorney was ineffective when not responding to government's misleading statements of facts, and when he didn't obtain the traffic stop video, which proves the ass[istant] U.S. Attorney committed fraud upon the appeals court when she claimed "baking soda" was a "cutting" agent the lab tech. Testified it wasn't and didn't an[alyze] the substance, video also shows Price-Day wearing the same sweat suit as in bag. Attorney Graeff admitted ineffectiveness.

2. Evidence was insufficient to support constructive possession.

Government's use of perjured testimony and the exculpatory evidence withheld from the trial court and appellate courts amounted to misconduct and without the above no evidence exists to be used to support any type of possession.

3. Government misconduct, use of perjured testimony and with[h]olding exculpatory evidence.

Government used perjured testimony by Tpr. Shaner and Det. Music, Mr. McDaniels to establish circumstantial case, also fabricated "probable cause" used staged photos, mislead the court and jury, didn't prove evidence stated in her opening statement, used false evidence to appellate court just to start with, also with[h]eld from Court truth of Ross Co. Deputies, cooperation, and proffer truth.

4. Ineffective trial counsel(s)[.] Counsel Adam Ne[u]man admitted other crimes evidence in opening as well as fraud upon the Court.

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5. Ineffective Appellate counsel and sentencing counsel.

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6. Judge bias. . . .

Doc. No. 86. Proceedings in this matter were stayed until October 19, 2010, when Petitioner's direct appeal was resolved. Order, Doc. No. 106. On November 17, 2010, Petitioner filed a Brief in Support of § 2255, in which he advanced additional claims for relief. Doc. No.114.

REQUEST FOR APPOINTMENT OF COUNSEL AND POLYGRAPH EXAM

Petitioner requests the appointment of counsel to assist him in proving his actual innocence. Doc. No. 90. The Sixth Amendment provides no right to the appointment of counsel in habeas corpus proceedings, which are considered to be civil in nature. Hoggard v. Purkett, 29 F.3d 469 (8th Cir. 1994)(citing Evitts v. Lucey, 469 U.S. 387 (1985); Barker v. Ohio, 330 F.2d 594 (6th Cir. 1964)). A federal court has the discretion to appoint counsel in a habeas proceeding where "the interests of justice so require." 18 U.S.C.A. § 3006(A)(2);Mira v. Marshall, 806 F.2d 636, 638 (6th Cir. 1986). Moreover, under Rule 8(c) of the Rules Governing Section 2255 Proceedings, a court must appoint counsel if an evidentiary hearing is required to resolve a petitioner's claims. This Court is notpersuaded that either the interests of justice or the need for an evidentiary hearing requires the appointment of counsel in this case. See Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)(quoting Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)(no evidentiary hearing required where "the record conclusively shows that the petitioner is entitled to no relief")). Nothing in the record indicates that this case is so unusually complex that Petitioner requires the assistance of counsel to advance his claims or that an evidentiary hearing will be required.

Similarly, the record reflects no basis to support Petitioner's request for a polygraph examination. See Doc. No. 90. Even favorable results from a polygraph examination would not assist Petitioner in establishing that he is entitled to relief in these proceedings. Petitioner had the opportunity to testify on his own behalf at his trial and yet the jury rejected his claim of innocence. Moreover, a free standing claim of actual innocence fails to provide a basis for federal habeas corpus relief.

Citing Herrera [v. Collins, 506 U.S. 390 (1993)] and House [v. Bell, 547 U.S. 518 (2006)], the Sixth Circuit has ruled that a free-standing claim of actual innocence based upon newly-discovered evidence does not warrant federal habeas relief. See Wright v. Stegall, No. 05-2419, 2007 WL 2566047, *2-3 (6th Cir. Sept.5, 2007) ("Since the Supreme Court has declined to recognize a freestanding innocence claim in habeas corpus, outside the death-penalty context, this court finds that petitioner's claim is not entitled to relief under available Supreme Court precedent"); Cress v. Palmer, 484 F.3d 844, 854-55 (6th Cir. 2007); see also Monroe v. Smith, 197 F.Supp.2d 753, 763 (E.D. Mich. 2001) (habeas petitioner's claim that he is entitled to relief due to state trial judge's failure to grant him a new trial based on newly-discovered evidence is not cognizable in a habeas proceeding). Thus, Petitioner's claim that he is actually innocent and has newly discovered evidence to prove it does not state a claim upon which habeas relief can be granted. See Johnson v. Hofbauer, 159 F.Supp.2d 582, 606 (E.D. Mich.2001).

Lardie v. Birkett, 2008 WL 474072 (E.D. Michigan Feb.19, 2008); see also Webb v. Wolfenbarger,2009 WL 369482 (E.D. Mich. Feb. 11, 2009) (same).

Petitioner's request for the appointment of counsel and for a polygraph examination, see Doc. No. 90, are therefore DENIED.

MOTION FOR APPROPRIATE ACTION

Petitioner has filed a Motion for Appropriate Action, Doc. No.123, in which he asks that this Court declare his innocence of the offenses charged. Petitioner stands convicted after a jury trial which rejected this claim and his...