Russell v. United States of America
MEMORANDUM OPINION. Signed by Judge L Scott Coogler on 4/1/13. (KGE, )
2013 Apr-01 AM 11:57
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
UNITED STATES OF AMERICA, )
MEMORANDUM OF OPINION
This is a motion to vacate, set aside, or correct a sentence, brought by a federal
prisoner, under 28 U.S.C. § 2255. The movant, Robert Russell, was convicted in this
court on September 8, 2011, of one count of mail fraud in violation of 18 U.S.C. § 1341
(Count 11), and one count of conspiracy to commit mail fraud in violation of 18 U.S.C.
§§ 1349, 1341 (Count 13). He was sentenced on December 8, 2011, to a term of
imprisonment for 87 months as to Counts 11 and 13, separately, with each count to run
concurrently with the other, to be followed by a term of supervised release for 36
Russell appealed his convictions, claiming that: 1) concerning Count 13, the
government did not present objective evidence showing that he conspired with others
to use a computer to unlawfully order controlled substances; and 2) concerning Count
11, no evidence was produced that he provided false information, records or
identification on October 27, 2008, to obtain drugs in Carla Pigg’s name.
On December 12, 2012, the Eleventh Circuit Court of Appeals issued an
unpublished opinion, affirming Russell’s convictions for mail fraud and mail fraud
conspiracy. The mandate was issued on January 11, 2013.
Russell has now filed a § 2255 motion to vacate, set aside or correct his
sentence. In support of his motion, Russell claims, among other things, that this
Court’s excessive sentencing violated his Fifth, Sixth, and Fourteenth Amendment
Rights to have a jury rule on any aggravating sentencing factors used to enhance his
sentence.1 This Court stated in an order dated March 26, 2013, that it will decide
Russell’s claim of abuse of judicial discretion/excessive sentencing.2 (See Doc. 5.)
Russell’s abuse of judicial discretion/excessive sentencing claim is barred by
procedural default because he did not raise it on direct appeal. The Supreme Court
has noted that § 2255 is not a substitute for direct appeal. Sunal v. Large, 332 U.S.
Russell also raised three other claims in his § 2255 motion: 1) “Ineffective Assistance of
Counsel;” 2) “Prosecutorial Misconduct;” and 3)“Procedural Default/Miscarriage of
This Court referred Russell’s other three claims to the Honorable Robert R. Armstrong,
U.S. Magistrate Judge, for a report and recommendation. (See Doc. 5.)
174, 178 (1947). “In general, a defendant must assert an available challenge to a
sentence on direct appeal or be barred from raising the challenge in a section 2255
proceeding.” Greene v. United States, 880 F.2d 1299, 1305 (11th Cir. 1989), cert.
denied, 494 U.S. 1018 (1990). “A ground of error is usually ‘available’ on direct
appeal when its merits can be reviewed without further factual development.” Mills
v. United States, 36 F.3d 1052, 1055 (11th Cir. 1994). If a defendant fails to pursue an
available claim on direct appeal, he is barred from presenting the claim in a motion for
§ 2255 relief unless he can establish cause for the default and actual prejudice resulting
from the alleged error. Id; see also Cross v. United States, 893 F.2d 1287, 1289 (11th
Cir. 1990), cert. denied, 498 U.S. 849 (1990). “[A] prisoner collaterally attacking his
conviction can establish cause for a procedural default if he can show that ‘some
objective factor external to the defense impeded counsel’s efforts to comply with the
. . . procedural rule,’ or that his attorney’s performance failed to meet the Strickland
standard for effective assistance of counsel.” Reece v. United States, 119 F.3d 1462,
1465 (11th Cir. 1997).
In addition to showing cause, the movant must also
demonstrate that he was prejudiced. To show prejudice, he must show “not merely
that the errors . . . created a possibility of prejudice, but that they worked to his actual
and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 170 (1982) (emphasis in original).
A federal habeas court, however, will consider a procedurally defaulted claim in the
absence of cause or prejudice, to correct a fundamental miscarriage of justice.
Fortenberry v. Haley, 297 F.3d 1213, 1222 (11th Cir. 2002) (quoting Murray v. Carrier,
477 U.S. 478, 495-96 (1986) (explaining that a “fundamental miscarriage of justice”
occurs “in an extraordinary case, where a constitutional violation has resulted in the
conviction of someone who is actually innocent”)).
On direct appeal, Russell challenged only his convictions, and not his sentence.
Thus, he is barred from raising his excessive sentencing claim in his § 2255 motion,
unless he can show cause and prejudice. Russell has offered nothing in his § 2255
motion and supporting brief that would excuse the procedural default of his excessive
sentencing claim. Indeed, Russell merely states that he “appealed the conviction
which should have included the sentence.” As the aforementioned authorities make
clear, that is not the law.
As noted, a meritorious claim of ineffective assistance of counsel can constitute
cause to excuse procedural default in some circumstances. See Reece, 119 F.3d at 1465.
However, this rule does not apply in this case because Russell never argues that his
appellate counsel was ineffective for failing to raise the abuse of judicial
discretion/excessive sentencing issue on direct appeal. Rather, his ineffective
assistance of counsel claim is limited to his counsel’s representation of him at the trial
level, and he makes no ineffective assistance of counsel argument whatsoever with
respect to his direct appeal.3
Finally, Russell’s fourth claim, “Miscarriage of Justice/Actual Innocence,” is
that he is actually innocent of the crime for which he was convicted. In Schlup v. Delo,
513 U.S. 298 (1995), the Supreme Court elaborated on the fundamental miscarriage
of justice exception and the necessity of showing innocence. To meet this exception,
the 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 standard focuses on the actual innocence of the petitioner.
Id. To be
credible, a claim of actual innocence must be based on reliable evidence not presented
at trial. Fortenberry, 297 F.3d at 1222. This Court has referred Russell’s actual
innocence claim to the U.S. Magistrate Judge for a report and recommendation.
Should the Magistrate Judge recommend, and this Court accept, that Russell’s
conviction be reversed due to his actual innocence, this Court will, upon proper
Russell had different counsel at the appellate level and at the trial level. In his brief in
support of his § 2255 motion, Russell actually requests that the Court appoint the same
individual who served as his appellate counsel to represent him if the Court grants him a new
trial or evidentiary hearing. This request further emphasizes that Russell’s ineffective assistance
of counsel claim is not directed at his appellate counsel.
motion by Russell, address whether the fundamental miscarriage of justice exception
excuses Russell’s procedural default on the abuse of discretion/excessive sentencing
Russell has procedurally defaulted on his abuse of judicial discretion/excessive
sentencing claim, and he has not established cause and prejudice to excuse the default.
Thus, the claim is due to be dismissed. An appropriate order will be entered.
Done this 1st day of April 2013.
L. Scott Coogler
United States District Judge
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