Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richardson v. United States

United States District Court, S.D. Florida

May 21, 2018

DARRYL RICHARDSON, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          REPORT OF MAGISTRATE JUDGE

          MAGISTRATE JUDGE P.A. WHITE JUDGE.

         I. Introduction

         The pro se movant, Darryl Richardson, has filed this motion to vacate, pursuant to 28 U.S.C. §2255, challenging the constitutionality of his original, 2006 sentence and the 2017 resentencing and resulting judgment for conspiracy to distribute five kilograms or more of cocaine, entered following a jury verdict in No. 04-20705-Cr-Seitz.

         This cause has been referred to the undersigned for consideration and report pursuant to 28 U.S.C. §636(b)(1)(B), (C); S.D.Fla. Local Rule 1(f) governing Magistrate Judges; S.D. Fla. Admin. Order 2003-19; and Rules 8 and 10 Governing Section 2255 Cases in the United States District Courts.

         No order to show cause has been issued because, on the face of the petition, it is evident the petitioner is entitled to no relief. See Rule 4, [1] Rules Governing Section 2255 Proceedings. Because the movant is not entitled to post-conviction relief, summary dismissal is warranted so that the government has not been ordered to file any response herein. See Broadwater v. United States, 292 F.3d 1302, 1303-04 (11th Cir. 2002) (a district court has the power under Rule 4 of the Rules Governing Section 2255 Cases to summarily dismiss a movant's claim for relief so long as there is a sufficient basis in the record for an appellate court to review the district court's decision).

         Before the Court for review are the movant's §2255 motion (Cv-DE#1) with supporting memorandum (Cv-DE#3), the Presentence Investigation Report (?PSI”), Statement of Reasons (?SOR”), along with all pertinent portions of the underlying criminal file, as well as, the movant's relevant, prior §2255 proceeding, assigned case no. 15-23827-Civ-Seitz.[2]

         II. Claims

         This court, recognizing that movant is pro se, has afforded him liberal construction, in accordance with the Supreme Court's decision in Haines v. Kerner, 404 U.S. 419 (1972). As can best be discerned, the movant raises the following 3 grounds for relief, as follow:

1. He was unlawfully assessed a criminal history point for a prior state court conviction that had been vacated. (Cv-DE#1:4).
2. He was denied effective assistance of counsel at the 2017 resentencing hearing, where his lawyer failed to object to the possession of a weapon enhancement as contained in the PSI. (Cv-DE#1:5).
3. He was denied effective assistance of counsel at the 2017 resentencing hearing, where his lawyer failed to ensure that the movant receive all prior custody credit towards the current resentencing judgment. (Cv-DE#1:7).

         III. Procedural History

         Briefly, the movant's convictions involved a conspiracy commencing on or about 1990 and continuing to on or about 2001, in Miami-Dade County, Florida. United States v. Richardson, 532 F.3d 1279 (11 Cir. 2008); (Cr-DE#245). Specifically, the movant was charged by Indictment with a sole count of conspiracy to distribute at least five kilograms or more of cocaine, in violation of 21 U.S.C. §841 and §846. (Cr-DE#3). The movant was the only defendant charged in the Indictment. (Id.). The government tried movant three times, with the first two trials failing to produce a unanimous verdict, but the third returning a finding of guilt, following a jury verdict. See United States v. Richardson, 532 F.3d at 1283.

         The original PSI assigned movant a total offense level 40 and a criminal history category III, based on four criminal history points, assessed as follows: (1) one point for a 1993 judgment; (2) one point for a 1995 Fulton County State conviction and sentence for theft; and, (3) two points for committing the federal offense while on probation from the 1995 conviction. (See 05cv23827:Cv-DE#5-Order Granting Motion to Vacate). Movant filed objections to the PSI, claiming there was insufficient evidence to identify him as the defendant in those prior convictions, but later withdrew the objections after the probation officer provided fingerprint verification. (Id.:2; Cr-DE#181). Thereafter, the movant was originally sentenced to a term of 360 months imprisonment, followed by 5 years supervised release. (Cr-DE#s187).

         Movant prosecuted a direct appeal, raising multiple grounds for relief, two of which attacked the conviction and one of which challenged the sentence imposed claiming the court considered certain of the movant's illegal acts that would have been time-barred under the movant's multiple conspiracies theory. See United States v. Richardson, 532 F.3d at 1282. Movant, however, did not challenge the computation of his criminal history category, nor any of the criminal history points assessed in the PSI. On July 3, 2008, the Eleventh Circuit Court of Appeals per curiam affirmed the conviction and sentence in a published opinion. United States v. Richardson, 532 F.3d 1279 (11 Cir. 2008); (Cr-DE#245). Certiorari review was denied on January 12, 2009. Richardson v. United States, 555 U.S. 1120, 129 S.Ct. 950, 173 L.Ed.2d 146 (2009); (Cr-DE#246).

         Thus, the movant's original judgment of conviction became final on January 12, 2009, when certiorari review was denied by the U.S. Supreme Court.[3] The movant had one year from the time his judgment became final, or no later than January 10, 2009, [4]within which to timely file this federal habeas petition. See Insignares v. Fla. Dep't of Corr's, [5] 755 F.3d 1273, 1280 (11th Cir. 2014)(citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d 1286, 1293 (11th Cir. 2007), cert. den'd, 555 U.S. 1149, 129 S.Ct. 1033, 173 L.Ed.2d 315 (2009))(commencing the one year period from the date of resentencing, where state prisoner was resentenced as a result of a successful Fla.R.Cr.P. 3.850 motion), applying Burton v. Stewart, 549 U.S. 147, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007)(other citations omitted). Applying the anniversary method to this case means movant's collateral attack to the original judgment of conviction and resultant sentence expired on January 10, 2010.

         Before expiration of the federal limitations period, the movant returned to this court, filing his first motion to vacate, pursuant to 28 U.S.C. §2255, assigned No. 09-22349-Civ-Seitz, in which he claimed that a 1995 state court conviction should not have been included in the PSI because it was ?uncounseled.” A Report recommending that the motion be denied on the basis that the claim raised therein was procedurally barred from review because it could have been, but was not raised on direct appeal, was adopted by Order entered in September 2012. That denial was subsequently affirmed by the Eleventh Circuit Court of Appeals in April 2014. See Richardson v. United States, 556 Fed.Appx. 851, 853 (11th Cir. 2014). Undeterred, movant filed two more §2255 motions with this court, assigned Nos. 14-20063-Civ-Moreno and 14-22680-Civ-Seitz.

         In the interim, during his pursuit of post-conviction attacks in the federal courts, petitioner returned to the state court in Fulton County filing multiple pro se petitions, assigned Nos. HC00614, HC692, requesting that his 1995 conviction in No. 95Cr170351, be vacated on the basis that it was uncounseled. His filings were all returned unprocessed or denied for lack of process (Cv-DE#3:12-Amended Order Vacating Sentence). Finally in October 2014, petitioner filed a counseled third petition, attacking the Fulton County conviction entered in No. 95cr170351, renewing the argument that the conviction was entered in violation of his Sixth Amendment right to be represented by counsel. (Id.). By written order entered on April 1, 2015, the state trial court in that proceeding vacated the sentence, but affirmed the conviction, relying on United States v. Acuna-Reyes, 677 F.3d 1282 (11 Cir. 2012).

         On October 14, 2015, the movant returned to this court, filing another §2255 motion, assigned No. 15-23827-Civ-Seitz, requesting that his federal sentence be vacated in light of the vacatur of his 1995 Fulton County conviction which was used to determine his applicable guideline range. A Report was entered in that proceeding recommending that the case be dismissed as successive and time-barred. (15cv23827:Cv-DE#14). A hearing was held on November 8, 2016, to discuss the objections. (15cv23827:Cv-DE#26). The district court declined to adopt the Report, finding in pertinent part that vacatur of a prior conviction after a first 2255 petition is decided will not result in dismissal of the second 2255 petition as successive, citing Stewart v. United States, 646 F.3d 856, 863 (11 Cir. 2011) and Boyd v. United States, 754 F.3d 1298, 1301-02 (11 Cir. 2014). The district court also found that the movant had acted diligently in filing the second §2255 motion after successfully challenging his 1995 state court judgment, citing Goldman v. Winn, 565 F.Supp.2d 200, 220-21 (D. Mass. 2008) and cf., Johnson v. United States, 544 U.S. 295, 311 (2005). (15cv23827:Cv-DE#36:7). The district court granted the §2255 motion, vacated his sentence, and directed the probation officer to prepare an amended PSI to reflect the vacated 1995 state conviction. (Id.:9).

         While the foregoing proceedings were ongoing, movant also filed a criminal motion to reduce his sentence, pursuant to 18 U.S.C. §3582, based on Amendment 782 to the U.S. Sentencing Guidelines, which retroactively amended the U.S.S.G. Drug Quantity Table used to calculate the movant's guideline range. (Cr-DE#253). Under the Amendment, a base offense level 36 applies to offenses, like the movant's, which involved between 150 and 450 kilograms of cocaine. (Cr-DE#260). By Order entered on November 30, 2015, the movant's motion was granted, and movant's total term of imprisonment was reduced from 360 months to 292 months imprisonment. (Id.).

         Regarding the resentencing, in light of the vacatur of the conviction, on June 13, 2017, the movant appeared for a resentencing hearing. (Cr-DE#s279-280). On June 20, 2017, an Amended Judgment was entered further reducing movant's sentence to a total term of 232 months imprisonment, to be followed by 5 years supervised release. (Cr-DE#280). It was also that the movant ?shall receive credit for time served as applicable by statute.” (Id.:2) (emphasis added). No. appeal therefrom appears to have been prosecuted. At the latest, the Amended Judgment, following resentencing, became final on Wednesday, July 5, 2017, [6]after the 14-day period for filing a timely notice of appeal expired.[7]

         Thus, the movant has one year from the time his resentencing judgment became final, or no later than July 5, 2018, [[8]] within which to timely file this federal habeas petition. See Insignares, 755 F.3d at 1280 (citing Ferreira v. Sec'y, Dep't of Corr's, 494 F.3d at 1293 applying Burton v. Stewart, 549 U.S. 147).

         Although still represented by counsel, movant filed a motion for clarification, explaining that he was in a Residential Drug Abuse Program (?RDAP”), but because the Bureau of Prison (?BOP”) classified him as a ?violent offender, ” it was denying him the benefit of a one year reduction in his sentence for successful completion of the program. (Cr-DE#281). By written order entered on January 31, 2018, the court found it was ?not authorized to review a BOP offender classification.” (Cr-DE#287). In so ruling, the Court found, in pertinent part, as follows:

...The Court imposed a two level enhancement pursuant to Section 2D1.1, commentary (11)(A) which provides that the enhancement for the weapon possession reflects the increased danger of violence when drug traffickers possess weapons and the enhancement should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected to the offense. The PSI provides that the weapon belonged to another drug dealer and that Defendant took the weapon and used it. Thus, the enhancement was correctly imposed.
Notwithstanding the imposition of the enhancement, if the BOP, in its sole discretion, determines that Defendant's conduct while in custody and in the program merits the granting of the one year ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.