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United States v. Grant

United States District Court, N.D. Florida, Panama City Division

September 4, 2019

UNITED STATES OF AMERICA
v.
ANTOINE LAMAR GRANT

          REPORT AND RECOMMENDATION

          ELIZABETH M. TIMOTHY CHIEF UNITED STATES MAGISTRATE JUDGE.

         This matter is before the court upon Defendant Antoine Lamar Grant's “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody” (ECF No. 283). The Government filed a response (ECF No. 296), and Grant filed a reply (ECF No. 306). The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2; see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After a review of the record and the arguments presented, the undersigned recommends that the § 2255 motion be denied without an evidentiary hearing. See Rules 8(a) and (b), Rules Governing Section 2255 Proceedings.

         I. PROCEDURAL BACKGROUND

         On September 15, 2015, a grand jury returned an indictment, charging Grant with conspiracy to distribute and possess with intent to distribute in excess of 500 grams of methamphetamine in violation of 21 U.S.C. §§ 841 and 846 (“Count One”) and possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. § 924(c)(1)(A)(i) (“Count Two”) (ECF No. 20). A superseding indictment was returned on October 21, 2015, which additionally charged Grant with possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g)(1) (“Count Four”) (ECF No. 103).

         Grant pleaded guilty as charged, pursuant to a written plea agreement, on November 10, 2015 (ECF Nos. 133-135). He signed a Factual Basis for Guilty Plea which provided in relevant part:

On August 19, 2015, law enforcement searched the defendant's resident at Panama City Beach, Florida. This residence/apartment was utilized by the defendant to store methamphetamine held by him for distribution. During the search of the defendant's bedroom, law enforcement recovered a large quantity of methamphetamine as well as the firearms described in the indictment. One or more of the firearms described in Count Two of the indictment was possessed by the defendant for the purpose of securing or protecting the methamphetamine stored in the apartment.

(ECF No. 134 at 2). The Factual Basis also set forth facts establishing the amount of methamphetamine involved in the conspiracy and Grant's guilt as to Count Four (see ECF No. 134). Grant affirmed at his rearraignment, under oath, that he had read the statement of facts word for word and agreed with the content therein (ECF No. 258 at 15-16).

         The Final Presentence Investigation Report (“PSR”) noted that Grant was a career offender with a total offense level of 38 and a criminal history category of VI (ECF No. 250). The applicable sentencing guideline range was 420 months to life in prison, plus 60 months, due to the mandatory consecutive term of imprisonment on Count 2 (ECF No. 250, PSR ¶ 170).

         On April 14, 2016, the court sentenced Grant to concurrent terms of 120 months of imprisonment on Counts One and Four, and a consecutive term of 60 months on Count Two (ECF Nos. 253, 254). The court awarded Grant a three-level downward adjustment for acceptance of responsibility, reducing the applicable guideline range to 352 to 425 months of imprisonment. The sentence was below the otherwise applicable guideline range because the court granted a motion for a variance to which the Government did not object (ECF No. 255 at 4). Grant did not appeal, and he timely filed the instant § 2255 motion on March 16, 2017.[1]

         In the instant motion, Grant claims his sentence on Count Two should be vacated because the record did not establish he “used or carried” the firearm during and in relation to a drug trafficking crime and because his appointed attorney, Jean Marie Dowling, was constitutionally ineffective. The Government opposes the motion.

         II. ANALYSIS

         A. General Standard of Review

         “Section 2255 does not provide a remedy for every alleged error in conviction and sentencing.” Spencer v. United States, 773 F.3d 1132, 1138 (11th Cir. 2014). Collateral review is not a substitute for direct appeal, and therefore the grounds for collateral attack on final judgments pursuant to section 2255 are extremely limited. A prisoner is entitled to relief under section 2255 if the court imposed a sentence that (1) violated the Constitution or laws of the United States, (2) exceeded its jurisdiction, (3) exceeded the maximum authorized by law, or (4) is otherwise subject to collateral attack. See 28 U.S.C. § 2255(a); McKay v. United States, 657 F.3d 1190, 1194 n.8 (11th Cir. 2011). “Relief under 28 U.S.C. § 2255 ‘is reserved for transgressions of constitutional rights and for that narrow compass of other injury that could not have been raised in direct appeal and would, if condoned, result in a complete miscarriage of justice.'” Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (citations omitted). The “fundamental miscarriage of justice” exception recognized in Murray v. Carrier, 477 U.S. 478, 496 (1986), provides that it must be shown that the alleged constitutional violation “has probably resulted in the conviction of one who is actually innocent . . . .”

         Because a motion to vacate under section 2255 is not a substitute for direct appeal, issues which could have been raised on direct appeal are generally not actionable in a section 2255 motion and will be considered procedurally barred. Lynn, 365 F.3d at 1234B35; Bousley v. United States, 523 U.S. 614, 621 (1998); McKay v. United States, 657 F.3d 1190, 1195 (11th Cir. 2011). An issue is “‘available' on direct appeal when its merits can be reviewed without further factual development.” Lynn, 365 F.3d at 1232 n.14 (quoting Mills, 36 F.3d at 1055). Absent a showing that the ground of error was unavailable on direct appeal, a court may not consider the ground in a section 2255 motion unless the defendant establishes (1) cause for not raising the ground on direct appeal, and (2) actual prejudice resulting from the alleged error, that is, alternatively, that he is “actually innocent.” Lynn, 365 F.3d at 1234; Bousley, 523 U.S. at 622 (citations omitted). To show cause for procedural default, a defendant must show that ‚Äúsome objective factor external to the defense prevented [him] or his counsel from ...


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