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Richardson v. United States

United States District Court, S.D. Florida

May 10, 2017




         THIS MATTER is before the Court on a Report and Recommendation [DE 14] ("Report"), addressing Darryl Richardson's Motion to Vacate Sentence pursuant to 28 U.S.C. § 2255 [DE 1]. Richardson requests that his criminal history be recalculated in light of a prior state sentence that has since been vacated. The Report finds that the Court lacks jurisdiction to consider the Motion. The Report also recommends that the Motion be dismissed as successive and as time-barred. Having reviewed de novo the Report, Richardson's Objections [DE 15], the Government's Response [DE 18], their additional briefings [DEs 28 & 33], oral argument, and the record, the Court declines to adopt the Report and concludes that Richardson is entitled to a resentencing. Accordingly, the Motion is granted.

         I. BACKGROUND

         On January 30, 2006, Richardson was convicted of conspiring to distribute five or more kilograms of cocaine. [Case No. 04-CR-20705-SEITZ.] The Presentence Investigation Report ("PSI") assigned him a Total Offense Level of 40 and a Criminal History Category III based on four criminal history points-one point for a 1993 judgment not at issue; one point for a 1995 Fulton County State Court conviction and sentence for theft; and two points for committing the federal offense while on probation from the 1995 conviction. [DE 8 at 2.]

         Richardson objected to the PSI, claiming there was insufficient evidence to identify him as the defendant in those prior cases. [DE 8-3.] He withdrew his objection however after Probation provided fingerprint verification. [DE 8 at 2.] On April 21, 2006, the Court sentenced Richardson to 360 months imprisonment.[1] Id. at 3. His conviction was affirmed in July 2008. United States v. Richardson, 532 F.3d 1279 (11th Cir. 2008). On appeal, Richardson did not raise any issues with his prior offenses.[2]

         In July 2007, Richardson filed a pro se state habeas petition in the Fulton County Superior Court, requesting that his 1995 conviction be vacated on grounds that it was uncounseled.[3] [Case No. HC00614.] His petition was returned unprocessed in December 2007. [DE 1-6; DE 1-7.] In January 2008, Richardson wrote to the Superior Court asking why his petition was returned. [DE 1-8.] He claims he never received an answer. Richardson then filed a second habeas petition in the Superior Court in August 2008. [Case No. HC00692.]

         While his state petition was pending, Richardson filed a § 2255 petition in August 2009, claiming that his 1995 conviction was uncounseled and should not have been included in his criminal history. [Case No. 09-CV-22349-SEITZ.] Magistrate Judge Goodman issued a Report and Recommendation, concluding that Richardson was procedurally barred from attacking his state conviction for failure to raise the issue at sentencing or on appeal. [DE 8 at 5-7.] This Court adopted the Report and denied the petition in September 2012. The Eleventh Circuit affirmed in April 2014. [DE 8 at 7-8.]

         In January and July 2014, Petitioner filed two additional federal habeas petitions which were dismissed as successive. [Case Nos. 14-CV-20063-MORENO; 14-CV-22680-SEITZ.]

         Richardson's 2008 state petition was denied in March 2014 for lack of service. [DE 33-3.] In October 2014, Richardson filed a third state habeas petition with the assistance of counsel. [DE 1 at 6-7.] On April 1, 2015, the State Court of Fulton County vacated the 1995 sentence and affirmed the conviction.[4] [DE 1-9.] Richardson then filed the instant Motion on October 14, 2015, requesting that his federal sentence be vacated in light of his vacated state sentence.

         Magistrate Judge Turnoff issued his Report and Recommendation on June 13, 2016. Richardson filed Objections on June 27, 2016 and the Government filed its Response on July 25, 2016. The Court held a hearing on November 8, 2016 to discuss the objections. The Court continued the hearing until March 7, 2017. In the interim, both parties filed additional briefing.

         II. ANALYSIS

         The Report recommends the Motion be dismissed for several reasons. First, the Report concludes that the alleged sentencing error would not result in a "complete miscarriage of justice" and, thus, is not cognizable under 28 U.S.C. § 2255. Next, the Report finds that the Motion is successive. Lastly, the Report finds that Richardson did not seek to vacate his state sentence with sufficient diligence to restart the one-year statute of limitations under § 2255(f)(4). Richardson objects to each of these conclusions.

         As a threshold matter, the Government argues that Richardson is procedurally barred from bringing his claim for failure to raise it at the time of sentencing. The Report does not address this issue and the Court reviews it in the first instance. In general, a defendant is barred from raising an issue in a § 2255 petition that was not raised at sentencing or on appeal. United States v. Frady, 456 U.S. 152, 167 (1982); Lynn v. United States, 365 F.3d 1225, 1232-33 (11th Cir. 2004). The Government correctly asserts that Richardson could have raised his uncounseled state sentence during his federal sentencing proceeding. See Custis v. United States, 511 U.S. 485, 495-96 (1994) (permitting a defendant to collaterally attack a prior uncounseled state conviction during his federal sentencing proceedings). Thus, as Judge Goodman noted in his 2012 Report, Richardson is procedurally barred from attacking his state sentence on a § 2255 petition. [Case No. 09-CV-22349, DE 62 at 10 (citing Daniels v. United States, 532 U.S. 374, 382 (2001).]

         However Richardson is not attacking his state sentence anymore. He successfully vacated that sentence in state court based on its constitutional defect. Richardson is now asking the Court to reopen and reduce his federal sentence in light of the vacated state sentence. The Supreme Court and the Eleventh Circuit have repeatedly recognized the ability to reopen a federal sentence after having an enhancing state sentence vacated in state court. Custis, 511 U.S. at 197; Daniels ...

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