Franklin v. United States of America

Filing 8

MEMORANDUM. (See Full Memorandum.) For the reasons discussed herein, the court concludes that motion and the files and records of this case conclusively show that Franklin is not entitled to relief under 28 U.S.C. 2255 based on any of the claims he asserts in the motion to vacate. Therefore, the motion will be denied without a hearing. See Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995). Additionally, the court finds that Franklin has not made a substantial showing of the denial of a constitutional right. Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. 2253. An order consistent with this memorandum opinion will be filed separately. Signed by District Judge Carol E. Jackson on 8/6/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
COREY T. FRANKLIN,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No.

4:12-CV-866 (CEJ)

MEMORANDUM
This matter is before the court on the motion of Corey T. Franklin to vacate,
set aside, or correct sentence, pursuant to 28 U.S.C. ' 2255.

The United States has

filed a response in opposition and Franklin has filed a reply.
I.

Background

On January 7, 2011, Franklin pled guilty to one count of conspiracy to
distribute and possess with intent to distribute in excess of 1,000 kilograms of
marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846.

A statutory mandatory

minimum sentence of imprisonment of 10 years was prescribed for the offense.
Prior to the plea, Franklin and the government entered into a written plea
agreement.

At the change of plea hearing, Franklin stated under oath that he had

read the agreement, discussed it with his attorney, and that he understood its
contents.

Among other things, the agreement provided that the government

would file a motion for downward departure pursuant to U.S.S.G. 5K1.1 and 18
U.S.C. § 3553 if Franklin provided substantial assistance.

During the change of

plea colloquy, the court questioned Franklin about the cooperation provision in the
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plea agreement.1 In response, Franklin stated under oath that he understood that
there was no guarantee that a downward departure motion would be made.
Franklin also said he understood that he faced a 10-year mandatory minimum
sentence of imprisonment.

In the plea agreement Franklin agreed to waive his

right to appeal the sentence if it was within the sentencing guideline range.

He also

agreed that the government could, at its option, be released from its obligations
under the plea agreement if he engaged in post-plea misconduct, including
“violat[ion] [of] any conditions of release that results in revocation.”

Several

months after the plea, Franklin was found to be in possession of ammunition.

As a

result, on April 26, 2011, the court revoked his release.
Franklin appeared for sentencing on April 28, 2011.

The government did not

file a downward departure motion and Franklin did not voice an objection to this.
The court imposed a sentence of 120 months’ imprisonment and a five-year
supervised release term.
II.

Franklin did not file a notice of appeal.

Discussion

In the motion to vacate, Franklin asserts the following grounds for relief:

(1)

the government’s failure to file a downward departure motion violated the
separation of powers doctrine and (2) the sentence imposed resulted in manifest
injustice.

Franklin could have presented these claims on direct appeal, but he did

not do so.

As such, both claims are procedurally defaulted and cannot be raised in

this § 2255 proceeding absent a showing of cause and prejudice. See Boyer v.
United States, 988 F.2d 56, 57 (8th Cir. 1993); Reid v. United States, 976 F.2d 446,
447 (8th Cir. 1992), cert. denied, 507 U.S. 945 (1993) [citing United States v.
1

This portion of the colloquy took place at the bench and the transcription of it was sealed.
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Frady, 456 U.S. 152 (1982)].

In order to show cause, a movant must establish

that Asome objective factor external to the defense@ impeded his ability to present
his claim on appeal.

McCleskey v. Zant, 499 U.S. 467, 493 (1991) [quoting Murray

v. Carrier, 477 U.S. 478, 488 (1986)].

Ineffective assistance of counsel or a

showing of actual innocence may constitute cause sufficient to exempt a movant
from the procedural bar.

Id. at 494.

Here, Franklin makes no showing of actual

innocence; in his reply, he makes only a fleeting assertion of ineffective assistance.
Thus, Franklin has not overcome the procedural bar.

Despite the procedural

default, the government has responded to the merits of Franklin’s claims.

The

court will do so as well.
A.

Separation of Powers

Franklin contends that government’s authority to make a charging decision
and to decide whether or not to seek a downward departure based on substantial
assistance violates the separation of powers doctrine.
support for this claim.

However, he offers no legal

Indeed, the court has found no case law or other authority

stating that the determination of whether or not a defendant has provided
substantial assistance to the prosecution is a judicial function.

To the contrary, it

has been held that the requirement that a departure based on substantial assistance
can be made only upon motion of the government “is not an unconstitutional
infringement on the separation of powers.”

United States v. Kelley, 956 F.2d 748,

752 (8th Cir. 1992) (citing cases).
Additionally, as noted above, during the plea colloquy Franklin stated that
he understood there was no guarantee that the motion would be filed.

A

defendant’s statements made under oath “carry a strong presumption of verity.”
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Blackledge v. Allison, 431 U.S. 63, 74 (1977). See also United States v. Harvey, 147
Fed. Appx. 627 (8th Cir. 2005).

Further, in the plea agreement Franklin

acknowledged the government’s right to be released from any obligation to file a
downward departure motion if he committed a violation of his bond that resulted in
revocation.

Thus, Franklin’s assertion that his guilty plea was involuntary because

it was made in reliance on the downward departure motion is belied by the record.
B. Manifest Injustice
The offense that Franklin pled guilty to carried a mandatory minimum
sentence of ten years’ imprisonment.

He complains that some of his co-defendants

were allowed to plead guilty to charges that did not provide for a mandatory
minimum sentence and, as a result, received sentences below 120 months.
argues that he should have been given the same opportunity.
have the opportunity for a lower sentence:

He

But Franklin did

he could have provided substantial

assistance and avoided engaging in post-plea misconduct.

To the extent Franklin is

contending that the government should not have the power to decide what criminal
charges to pursue and how and with whom to conduct plea negotiations, such a
contention is without merit.

See United States v. Armstrong, 517 U.S. 456, 464

(1996) (the executive branch has broad discretion to enforce federal criminal laws);
Newman v. United States, 382 F.2d 479, 481 (D.C. Cir. 1967) (federal prosecutor
“is not compelled by law, duty or tradition” to treat every offender and every offense
alike).
Further, the mere fact that some co-defendants received lower sentences of
imprisonment does not entitle Franklin to a disproportionality analysis that is
typically reserved to capital cases.

Franklin does not and cannot show that the
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sentence he received was “unusual” in the constitutional sense, or that it was illegal
or otherwise contrary to law.
(1991).

See Harmelin v. Michigan, 501 U.S. 957, 996

Accordingly, he is not entitled to relief on this claim.
*****

For the reasons discussed above, the court concludes that motion and the
files and records of this case conclusively show that Franklin is not entitled to relief
under 28 U.S.C. _ 2255 based on any of the claims he asserts in the motion to
vacate.

Therefore, the motion will be denied without a hearing. See Engelen v.

United States, 68 F.3d

238, 240 (8th Cir. 1995). Additionally, the court finds that

Franklin has not made a substantial showing of the denial of a constitutional right.
Therefore, the court will not issue a certificate of appealability. See 28 U.S.C. _
2253.
An order consistent with this memorandum opinion will be filed separately.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 6th day of August, 2015.

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