Gaines v. United States Of America

Filing 7

REPORT AND RECOMMENDATIONS granting re 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Juanice Gaines Objections to R&R due by 4/27/2017. Signed by Magistrate Judge G. R. Smith on 4/13/17. (trb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
STATESBORO DIVISION
JUANICE GMNES,

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FILED
Scott L. Poff, Clerk
United States District Court

By tblanchard at 3:24 pm, Apr 13, 2017

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Movant,

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UNITED STATES OF AMERICA,

CV6 17-006
CR608-012

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Respondent.

I 1 DI S)

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WII 1 1 EIJ1IIYVU[Iii

Guilty-plea convicted for conspiracy to possess with intent to
distribute cocaine, Juanice Gaines, proceeding pro Se, moves under 28
U.S.C. § 2255 to vacate career offender enhancement applied to his 2009
sentence. Doc. 578;' see does. 5 (indictment), 275 (plea agreement), 272
(judgment for 156 months' imprisonment). After the Court orally
pronounced his sentence, Gaines moved to withdraw his guilty plea.

See

doe. 367 (denying Gaines' motion for leave to appeal in forma pauperis
because his appeal "[wa]s untimely, frivolous, and represents 'sour
grapes over a sentence once pronounced.") (quoting United States v.

1

The Court is citing to the criminal docket in CR617-006 unless otherwise noted,
and all page numbers are those imprinted by the Court's docketing software.

Von,i, 535 U.S. 55 2 57 (2002)). That appeal was dismissed as frivolous.
Doc. 389 (mandate of the Eleventh Circuit). Since then, he has
repeatedly sought to unwind his sentence, to similar result.

See, e.g.,

does. 392, 438, 467, 515 2 523 2 534 2 561 2 578. This is not his first § 2255
rodeo.
I. BACKGROUND
Gaines' first motion to vacate his sentence was dismissed as
untimely. Does. 392 & 397; see also Gaines v. United States, No. 1115404-A (11th Cir. Apr. 30, 2012) (denying certificate of appealability).
His second attempt to neutralize his enhanced sentence was summarily
rejected.

See In re Gaines, No. 16-14732 (11th Cir. Jul. 26, 2016)

(Gaines' sentence is undisturbed, because he was not enhanced pursuant
to the Armed Career Criminal Act (ACCA) -- he was sentenced as a
career offender under the Sentencing Guidelines, and Johnson v. United

States, 576 U.S. -, 135 S. Ct. 2551 (2015) (holding the ACCA "residual
clause" unconstitutionally vague) has no effect on the Guidelines); see

also Beckies v. United States, - U.S. -, 2017 WL 855781 (Mar. 6, 2017)
(holding that Johnson does not extend to the identical language of the
Sentencing Guidelines' residual clause); United States v. Matchett, 802
2

F.3d 1185 (11th Cir. 2015) (same). As was his third attempt. See In re:

Gaines, No. 16-15547-C (11th Cir. Sept. 21, 2016) (denying Gaines'
request to file a successive § 2255 motion).
IL ANALYSIS
Gaines now seeks to file a successive § 2255 motion, without first
asking permission from the Eleventh Circuit to do so (presumably since
his prior attempts have been rejected). Doc. 578;

see (28 U.S.C.

§ 2244(b)(3)(A) ("Before a second or successive application permitted by
this section is filed in the district court, the applicant shall move in the
appropriate court of appeals for an order authorizing the district court to
consider the application.").
Absent that authorization, this Court lacks jurisdiction to hear any
argument already addressed "on the merits." See Slack v. McDaniel, 529
U.S. 473, 485-86 (2000); see also In re Rains, 659 F.3d 1274, 1275 (10th
Cir. 2011) (collecting cases) (dismissal as time-barred is "on the merits,"
making any later motion challenging the same conviction successive and,
therefore, requiring authorization by the Circuit panel prior to filing in
the district court); Stewart v. United States, 646 F.3d 856 2 861 (11th Cir.
2011) (describing a limited class of cases where the successiveness bar
3

would not apply, none of which are applicable here). All of Gaines'
claims are impermissibly successive (meaning the Court cannot hear
them).
Gaines resurrects several of his already-rejected arguments under
the guise of an ineffective assistance of counsel (TAC) claim.

Id. at 4-7.

His second claim (that the Government breached its plea-agreement
promises by enhancing his sentence under 21 U.S.C. § 851 2 ), third claim
(disputing the career offender enhancement is both (a) unconstitutional
after Johnson and Mathis and (b) invalid because it was not mentioned
in his plea agreement), and fourth claim (arguing that his prior drug
convictions are no longer enhancement predicates following Mathis and

"Hinkle"') are all impermissibly successive.

See In re Gaines, No. 16-

14732 (11th Cir. 2016) (denying authorization to file a successive § 2255
motion because Johnson changes nothing about his Sentencing
Guidelines-enhanced sentence).
Movant has already had (at least) one § 2255 dismissed on the

2

it is unclear why Gaines believes his sentence was so enhanced; movant's sentence
was enhanced under U.S.S.G. § 4B1.1. PSR ¶ 22; see doc. 388 at 15.
It is also unclear which case movant intends to cite, as a case search has not
revealed any "United States v. Hinkle" Supreme Court case having any effect on
Gaines' status as a career offender.

merits. Doc. 397, 402, 409 & 433; see In re Rains, 659 F.3d at 1275
(dismissal as time-barred is "on the merits"). He cites no "newly
discovered evidence"' or "new rule of constitutional law" that would

In addition to being barred as successive, Gaines' new claim -- that "he is actual [1y]
innocent of the said offense based on newly discovered evidence that one of the lead
investigator[s] of the Bulloch County Sheriff's office. . . had to resign from his post
based on the misuse of funds" (doe. 578 at 3) -- is also dead on arrival. Movant claims
that one of the prosecution's witnesses committed "fraud upon the Court" during his
criminal case because the witness was later accused of misbehavior in a completely
unrelated matter. See doe. 584 at 3, 6-8, 11-12.
Some six years after DEA Task Force Agent Ken Munsey (an investigator of the
underlying cocaine distribution conspiracy) testified in Gaines' criminal case, he
resigned in disgrace from the Bulloch County Sheriff's Department following an
Internal Affairs investigation of his mismanagement of funds as the executor of an
Estate. See doe. 584 at 6, 10-11 (beginning in February 2012, Munsey used
approximately $140,000 in Estate funds for his personal benefit without permission
from the Estate's beneficiary). The deceit was discovered in January 2015 and a civil
lawsuit was filed against Munsey in June 2015. Id. Gaines alleges Munsey's
executor-fraud taints his testimony in this case, including his testimony at Gaines'
January 2009 Rule 11 plea hearing. Id.
Gaines, however, does not identify any statement made by Munsey that was false
(much less perjurious). Bartley v. United States, 2013 WL 6234694 at * 2-3 (S.D. Ga.
Dec. 2, 2013) (it is movant's "burden to plead and prove his claims, including citation
to the trial and any other relevant records."). In fact, Gaines admitted and affirmed
Munsey's testimony by pleading guilty. See doe. 387 at 74-76; Blackledge v. Allison,
431 U.S. 63, 73-74 (1977) ("Solemn declarations in open court carry a strong
presumption of verity."); Tollett v. Henderson, 411 U.S. 258, 267 (1973) ("When a
criminal defendant has solemnly admitted in open court that he is in fact guilty of the
offense with which he is charged, he may not thereafter raise independent claims
relating to the deprivation of constitutional rights that occurred prior to the entry of
the guilty plea."); United States v. Spitzer, 785 F.2d 1506, 1514 n. 4 (11th Cir. 1986)
("[hf the Rule 11 plea-taking procedure is careful and detailed, the defendant will not
later be heard to contend that he swore falsely."). See also Presentence Investigative
Report (PSR) at 1115-9 (unrebutted account of conduct and investigation consistent
with Munsey's testimony).
Further, he has failed to demonstrate that the Government had any knowledge of
Munsey's (unrelated, future) misconduct at the time of the hearing, much less that
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appear to invoke this Court's ability to reevaluate these claims. See 28
U.S.C. § 2255(h). Gaines must therefore go to the Eleventh Circuit for
permission if he wants those claims aired, and this Court can do nothing
with them absent that permission.' should be DISMISSED.

(had the prosecution been able to see six years into the future and learn of that
misconduct) the Government had any duty to disclose that potential impeachment
evidence prior to entering into the plea agreement with Gaines. See United States v.
Ruiz, 536 U.S. 622, 633 (2002) ("[T]he Constitution does not require the Government
to disclose material impeachment evidence prior to entering a plea agreement with a
criminal defendant."). And Gaines pleaded guilty, waiving all of his trial rights,
including the right to receive material impeachment information. Doe. 395 at 7, 2231, 34-35.
His lack of impeachment information (based, again, on Munsey's future conduct)
could not have potentially result in a lower sentence, much less unwind his knowing
and voluntary plea, based on his unambiguous admission of guilt. See id. at 61-64;
United States v. Baez-Arrogo, 553 F. App'x 922, 955 (11th Cir. 2014) (government's
failure to disclose impeachment evidence does not make defendant's guilty plea
involuntary or unknowing); Davidson v. United States, 138 F. App'x 238, 239 (11th
Cir. 2005) (new information that would-have impeached a search warrant affidavit
does not unwind defendant's guilty plea). This argument is utterly meritless.
Moreover, these claims are procedurally defaulted, though repackaged as IAC
claims. Stoufflet v. United States, 757 F.3d 1236, 1239 (11th Cir. 2014) (claims
already raised and rejected on appeal are foreclosed); United States v. Nyhuis, 211
F.3d 1340, 1343 (11th Cir. 2000) (same); United States v. Montano, 398 F.3d 1276,
1279-80 (11th Cir. 2005) (associated, meritless IAC claims do not overcome that
procedural bar); Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004) (same).
On appeal, Gaines was told in no uncertain terms that his Johnson arguments held
no water -- his sentence was enhanced under the Sentencing Guidelines, not the
ACCA. In re Gaines, No. 16-14732 (11th Cir. 2012). Nothing has changed that
holding. See Beckles, 2017 WL 855781 (Johnson has no effect on the Sentencing
Guidelines). So any argument regarding the Johnson or Mathis decisions -- both
bearing only on enhancements under the ACCA -- was (and continues to be)
completely irrelevant to movant's case. And counsel cannot be found deficient for
failing to press a meritless point. Jones v. Barnes, 463 U.S. 745, 751 (1983) (there is
no "constitutional right to compel appointed counsel to press nonfrivolous points");
Evitts v. Lucey, 469 U.S. 387, 394 (1985) (counsel "need not advance every argument,
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III. CONCLUSION
Accordingly, the Government's motion to dismiss Gaines'
successive § 2255 motion should be GRANTED. Doc. 584. For the
reasons set forth above, it is plain that he raises no substantial claim of
deprivation of a constitutional right. Accordingly, no certificate of
appealability should issue. 28 U.S.C. § 2253; Fed. R. App. P. 22(b); Rule
11(a) of the Rules Governing Habeas Corpus Cases Under 28 U.S.C. §
2255 ("The district court must issue or deny a certificate of appealability
when it enters a final order adverse to the applicant."). Any motion for
leave to appeal in farina pauperis therefore is moot.
This Report and Recommendation (R&R) is submitted to the
district judge assigned to this action, pursuant to 28 U.S.C.
§ 636(b)(1)(B) and this Court's Local Rule 72.3. Within 14 days of
service, any party may file written objections to this R&R with the Court
and serve a copy on all parties. The document should be captioned
"Objections to Magistrate Judge's Report and Recommendations." Any
request for additional time to file objections should be filed with the
Clerk for consideration by the assigned district judge.

regardless of merit, urged by the appellant. . . .").
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After the objections period has ended, the Clerk shall submit this
R&R together with any objections to the assigned district judge. The
district judge will review the magistrate judge's findings and
recommendation pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are
advised that failure to timely file objections will result in the waiver of
rights on appeal. 11th Cir. R. 3-1; see Symonett v. V.A. Leasing Corp.,
648 F. App'x 787, 790 (11th Cir. 2016); Mitchell v. U.S., 612 F. App'x
542 1 545 (11th Cir. 2015).

SO REPORTED AND RECOMMENDED, this 13th day of
April, 2017.

UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA