GRANT v. UNITED STATES OF AMERICA et al

Filing 19

OPINION. Signed by Judge Jose L. Linares on 11/12/14. (DD, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

COREY MILTON GRANT,
Petitioner,
v.
UNITED STATES OF AMERICA,
Respondent.

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Civil Action No. 12-6844 (JLL)

OPINION

LINARES, District Judge:
Presently before the Court is the motion of Corey Milton Grant (“Petitioner” or “Mr.
Grant”) brought pursuant to 28 U.S.C. § 2255. (ECF No. 8.) Respondent, United States of
America (“Respondent”), filed an Answer (ECF No. 12) and Petitioner filed a Reply (ECF No.
18). For the following reasons, the Court will grant the motion.
I. BACKGROUND
On January 25, 1991, a superseding indictment was filed in the District of New Jersey,
charging Petitioner and eight other individuals with eight predicate racketeering acts under the
Racketeer Influenced and Corrupt Organizations Act (“RICO”). Grant v. U.S., No. 06-5952,
2008 WL 360982, at * 1 (D.N.J. Feb. 8, 2008). In addition to the RICO charges, Petitioner was
charged with conspiring to possess cocaine with intent to distribute; possession of cocaine with
intent to distribute; and possession of a weapon in relation to a crime of violence. Id. On May
13, 1992, a jury convicted Petitioner of the murder of Mario Lee; the attempted murder of Dion
Lee; conspiracy to distribute and possess cocaine with intent to distribute; and possession of
cocaine with intent to distribute. Id. On November 10, 1992, the Court sentenced Petitioner to

life imprisonment for his jury conviction on the two RICO counts; a concurrent 40 years
imprisonment for the drug offense convictions; and a consecutive sentence of 5 years for the
weapons conviction. Id. at *2. The Third Circuit affirmed his conviction and sentence on
August 23, 1993. U.S. v. Grant, 6 F.3d 780 (3d Cir. 1993).
On December 11, 2006, Petitioner filed his first petition pursuant to 28 U.S.C. § 2255.
Grant v. USA, Civil Action No. 06-5952 (HAA). On May 15, 2007, the Court dismissed the
petition as untimely. (Id. at ECF No. 6.) On October 2, 2012, Petitioner filed his second § 2255
Motion, which is the basis of the instant case. Thereafter, Petitioner’s counsel filed an application
with the Third Circuit for leave to file a second or successive motion under 28 U.S.C. § 2255,
which was granted on October 3, 2013. In re Pendleton, 732 F.3d 280 (3d Cir. 2013). Petitioner
then filed an amended § 2255 petition (ECF No. 8), Respondent filed an Answer (ECF No. 12)
and Petitioner filed a Reply (ECF No. 18).
Both parties agree that Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 2460, 183
L.Ed.2d 407 (2012) stated a new, substantive constitutional rule that the Supreme Court has made
retroactive through a combination of holdings. Petitioner also argues that Miller should be
applied retroactively because in the companion case to Miller, the Court vacated the life sentence
imposed on Kuntrell Jackson, a petitioner whose case had come to the Supreme Court from the
Arkansas Supreme Court on collateral review. (Pet.’s Br. 10.) While the Government concedes
that Miller should be applied retroactively, it argues that Petitioner in this case should not be resentenced because the analysis undertaken by the court at Petitioner’s original sentencing hearing
met the substantive requirements set forth by Miller. (Resp’t’s Br. 21.)

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II. DISCUSSION
A. Legal Standard
A prisoner in federal custody may file a motion pursuant to 28 U.S.C. § 2255 challenging
the validity of his or her sentence. Section 2255 provides, in relevant part, as follows:
A prisoner in custody under sentence of a court established by Act
of Congress claiming the right to be released upon the ground that
the sentence was imposed in violation of the Constitution or laws of
the United States, or that the court was without jurisdiction to
impose such a sentence, or that the sentence was in excess of the
maximum authorized by law, or is otherwise subject to collateral
attack, may move the court which imposed the sentence to vacate,
set aside or correct the sentence.
28 U.S.C. § 2255.
Unless the moving party claims a jurisdictional defect or a Constitutional violation, the
moving party must show that an error of law or fact constitutes “a fundamental defect which
inherently results in a complete miscarriage of justice, (or) an omission inconsistent with the
rudimentary demands of fair procedure.” United States v. Horsley, 599 F.2d 1265, 1268 (3d Cir.
1979) (quoting Hill v. United States, 368 U.S. 424, 429 (1962)).
B. Analysis
1. Retroactivity of Miller
In Miller v. Alabama, ––– U.S. ––––, 132 S.Ct. 2455, 2460, 183 L.Ed.2d 407 (2012), the
Supreme Court held that “mandatory life without parole for those under the age of 18 at the time
of their crimes violates the Eighth Amendment's prohibition on ‘cruel and unusual punishments.’”
Based on this holding, as noted above, Petitioner sought authorization from the Third Circuit to
file a successive petition under 28 U.S.C. § 2255. In “tentatively” granting Petitioner leave to file
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a second or successive § 2255 motion, the Third Circuit stated that this Court “must dismiss the
habeas corpus petition for lack of jurisdiction if it finds that the requirements for filing such a
petition have not in fact been met.” Pendleton, 732 F. 3d at 283. In other words, this Court lacks
jurisdiction over Petitioner’s successive § 2255 motion unless it determines that the motion
contains a "new rule of constitutional law, made retroactive to cases on collateral review by the
Supreme Court, that was previously unavailable." 28 U.S.C. 2255(h)(2).
Courts which have addressed the issue of Miller’s retroactivity are divided. The majority
of the Courts of Appeals, including the Third Circuit, which have preliminarily addressed the issue
in the context of granting or denying permission to file a second or successive §2254 or § 2255
petition, have found that petitioners made a prima facie showing that Miller is retroactive. 1
Several district courts in the Eastern District of Virginia, as well as district courts in Minnesota
and the Southern District of Mississippi, have found that Miller is not retroactive.2 On the other
1

Compare Evans-Garcia v. U.S., 744 F.3d 235 (1st Cir. 2014) (finding that petitioner made a
prima facie showing of retroactivity); In re Pendleton, 732 F.3d 280 (3d Cir. 2013) (same); In re
Simpson, 555 F. App’x 369 (5th Cir. 2014) (same); In re Williams, --- F.3d ----, 2014 WL 3585514
(D.C. Cir. July 22, 2014) (same); In re Clark, 554 F. App’x 276 (5th Cir. 2014) (same); Johnson
v. U.S., 720 F.3d 720 (8th Cir. 2013) (same) with In re Morgan, 713 F.3d 1365 (11th Cir. 2013)
(finding that petitioner did not make a prima facie showing of retroactivity sufficient to warrant
permission to file a second or successive § 2255); Craig v. Cain, No. 12–30035, 2013 WL 69128
(5th Cir. Jan. 4, 2013) (denying reconsideration motion of a denial of a certificate of appealability
for a § 2254 because Miller is not retroactive).
2

See Dumas v. Clarke, No. 13-398, 2014 WL 2808807 (E.D.Va. June 20, 2014); Stewart v.
Clarke, No. 13-388, 2014 WL 2480076 (E.D.Va. Mar. 13, 2014); Flowers v. Roy, No. 13-1508,
2014 WL 1757884 (D.Minn. Feb. 3, 2014); Martin v. Symmes, No. 10-4753, 2013 WL 5653447
(D.Minn. Oct. 15, 2013); Thompson v. Roy, No. 13-1524, 2014 WL 1234498 (D.Minn. Mar. 25,
2014); Ware v. King, No. 12-147, 2013 WL 4777322 (S.D.Miss. Sept. 5, 2013); Malvo v. Mathena,
No. 13-375, 2014 WL 2808805 (E.D.Va. June 20, 2014); Landry v. Baskerville, No. 13-367, 2014
WL 1305696 (E.D.Va. Mar. 31, 2014); Sanchez v. Vargo, No. 13-400, 2014 WL 1165862 (E.D.Va.
Mar. 21, 2014); Contreras v. Davis, No. 13-772, 2013 WL 6504654 (E.D.Va. Dec. 11, 2013);
Johnson v. Ponton, No. 13-404, 2013 WL 5663068 (E.D.Va. Oct. 16, 2013).
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hand, district courts in the Eastern District of Pennsylvania, Arizona, Eastern District of Michigan,
Southern District of New York and the Eastern District of Virginia have all found Miller to be
retroactive.3
In Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the Supreme
Court announced the non-retroactivity rule that “[u]nless they fall within an exception to the
general rule, new constitutional rules of criminal procedure will not be applicable to those cases
which have become final before the new rules are announced.” 489 U.S. at 310, 109 S.Ct. 1060.
To determine whether a new rule applies retroactively to a Petitioner's conviction on collateral
review, Teague sets forth a three-step approach for federal courts to follow: first, determine the
date petitioner's judgment of conviction became final; second, ascertain whether the rule
announced by the Supreme Court is new; and third, decide whether one of the two exceptions to
non-retroactivity apply, as set forth below. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994).
For the first step, it is without question that Petitioner’s case was final many years before
the rule was announced in Miller in 2012. With regard to the second step, it is also clear that
Miller announced a new rule. “[A] case announces a new rule if the result was not dictated by
precedent existing at the time the defendant's conviction became final.” Chaidez v. U.S., ––– U.S.
––––, 133 S.Ct. 1103, 185 L.Ed.2d 149 (2013). The Miller rule was not dictated by cases or
precedent that existed at the time Petitioner’s conviction became final in 1993. To create the new

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U.S. v. Orsinger, No. 01-1072, 2014 WL 3427573 (D.Ariz. July 15, 2014); Hill v. Snyder, No.
10-14568, 2013 WL 364198 (E.D.Mich. Jan. 30, 2013); Alejandro v. U.S., No. 13-4364, 2013 WL
4574066 (S.D.N.Y. Aug. 22, 2013); Songster v. Beard, No. 04-5916, 2014 WL 3731459 (E.D.Pa.
July 29, 2014); McLean v. Clarke, No. 13-409, 2014 WL 5286515 (E.D.Va. June 12, 2014); Pete
v. U.S., No. 03-355, 2014 WL 88015 (D.Ariz. Jan. 09, 2014).
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rule, the Court combined two lines of precedent: (1) “categorical bans on sentencing practices
based on mismatches between the culpability of a class of offenders and the severity of a penalty;”
and (2) “mandatory imposition of capital punishment, requiring that sentencing authorities
consider the characteristics of a defendant and the details of his offense before sentencing him to
death.” Miller, 132 S. Ct. at 2463-64. The Supreme Court reached its holding in Miller by
extending those two lines of precedents. Id. at 2464 (“Here, the confluence of these two lines of
precedent leads to the conclusion that mandatory life-without-parole sentences for juveniles violate
the Eighth Amendment”). Prior to Miller, it was “not dictated by precedent” that mandatory life
without parole sentences for juveniles violate the Eighth Amendment. In addition, both parties
have conceded that Miller states a new rule. See Evans–Garcia v. United States, 744 F.3d 235,
238 (1st Cir.2014) (accepting government's concession that Miller announced a new rule); In re
Pendleton, 732 F.3d 280, 282 (3d Cir.2013) (per curiam) (accepting parties' stipulation that Miller
announced a new rule).
The third step of the Teague analysis is to determine whether the new rule falls into an
exception. The Court identified two such exceptions to the general rule: (1) a rule that “places
certain kinds of primary, private individual conduct beyond the power of the criminal law-making
authority to proscribe;” 4 and (2) a “watershed rule of criminal procedure” that “requires the
observance of those procedures that ... are implicit in the concept of ordered liberty.” Teague,
489 U.S. at 311.
The Supreme Court later clarified that though they have “sometimes referred to rules of
this…type as falling under an exception to Teague's bar on retroactive application of procedural
rules, see, e.g., Horn v. Banks, 536 U.S. 266, 271, and n. 5, 122 S.Ct. 2147, 153 L.Ed.2d 301
(2002) (per curiam); they are more accurately characterized as substantive rules not subject to the
bar.” Schriro v. Summerlin, 542 U.S. 348, 352, n.4, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004).
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The Supreme Court has provided further guidance as to the application of these exceptions.
Substantive rules include “decisions that narrow the scope of a criminal statute by interpreting its
terms, as well as constitutional determinations that place particular conduct or persons covered by
the statute beyond the State's power to punish.”

Id. at 351-52 (internal citations omitted).

Substantive rules also include rules that “address[] a ‘substantive categorical guarante[e] accorded
by the Constitution,’ such as a rule ‘prohibiting a certain category of punishment for a class of
defendants because of their status or offense.’” Saffle v. Parks, 494 U.S. 484, 494, 110 S.Ct.
1257, 108 L.Ed.2d 415 (1990) (citing Penry v. Lynaugh, 492 U.S. 302, 329, 109 S.Ct. 2934, 106
L.Ed.2d 256 (1989)). “Such rules apply retroactively because they necessarily carry a significant
risk that a defendant stands convicted of an act that the law does not make criminal or faces a
punishment that the law cannot impose upon him.”
omitted).

Schriro, 542 U.S. at 352 (internal citations

In contrast, rules that regulate only the manner of determining the defendant's

culpability are procedural. Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 140
L.Ed.2d 828 (1998).
Respondent asserts, and other courts have also found, that there are both procedural and
substantive elements of the Miller rule. See, e.g. Songster v. Beard, --- F.Supp.2d ----, 2014 WL
3731459, at * 3 (E.D.Pa. July 29, 2014); McLean v. Clarke, No. 13-409, 2014 WL 5286515, at *
9 (E.D.Va. June 12, 2014). Miller does require that courts utilize a certain procedure when
sentencing a juvenile, however at the same time, it also alters the range of sentencing options for
juveniles because mandatory life without parole is no longer an option. See Miller, 132 S.Ct. at
2466. It is clear that Miller is doing more than simply changing the process by which a juvenile
should be sentenced. In re Morgan, 713 F.3d 1365 (11th Cir. 2013) (Wilson, C.J., concurring)
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(“[a]t the same time, by expanding the range of possible outcomes for an individual in Morgan's
position rather than simply the process by which those outcomes are reached, the rule announced
in Miller arguably includes a substantive component, too). Respondent argues, and this Court
finds persuasive, that the Supreme Court’s “descriptions of substantive and procedural rules under
Teague suggest that rules that go beyond regulating only the ‘manner’ of determining culpability
and instead categorically change the range of outcomes should be treated as substantive rules.”
(Resp’t’s Br. 17.) Juveniles who were previously only able to be sentenced to life without the
possibility of parole now have a different outcome available.
The Court agrees with the positions set forth by the parties. Though it contains procedural
aspects as well as substantive, it is clear that Miller does not merely regulate the manner in which
courts sentence juveniles to life in prison without parole; it also controls whether they may do so
at all.

Therefore, the Court finds that the rule stated by the Supreme Court in Miller is

substantive.5
2. Application of Miller to Petitioner
As discussed by the Court during the November 9, 1992 sentencing, Petitioner had a base
offense level of 43 with a criminal history category of III, which resulted in a guideline range of

The Court also finds support for retroactivity in the Court’s holding in the companion case to
Miller, Jackson v. Hobbs, 132 S.Ct. 548 (2011). Miller, a case on direct appeal, was argued with
Jackson, a case on collateral review. Though it is not dispositive of the issue, the Court’s
application of Miller to the petitioner in Jackson can be viewed as a possible intention to apply
Miller retroactively. See Teague v. Lane, 489 U.S. 288, 300 (1989) (“once a new rule is applied
[on collateral review] to the defendant in the case announcing the rule, evenhanded justice requires
that it be applied retroactively to all who are similarly situated”). But see Chaidez v. United
States, 133 S.Ct. 1103 (2013) (declining to apply Padilla v. Kentucky, 559 U.S. 356 (2010)
retroactively on collateral review notwithstanding its application of a new constitutional rule to
Padilla's collateral claim).
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life plus five years. (Resp’t’s Br., Appendix, Sentencing Tr. 7:22-8:1, ECF No. 12-1.) At the
time when Petitioner was sentenced, the Supreme Court had not yet decided U.S. v. Booker, 543
U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005).

Therefore, the guidelines, and more

specifically to Petitioner, the life without parole sentence, were mandatory.

Booker, 543 U.S. at

234 (“Because they are binding on judges, we have consistently held that the Guidelines have the
force and effect of laws”); see also Evans-Garcia v. U.S., 744 F.3d 235 (1st Cir. 2014) (“At the
time the petitioners were sentenced, the district court was bound to follow the federal sentencing
guidelines, which had not yet been ruled advisory by the Supreme Court…[petitioner’s] offense
level and criminal history led to a range including just one sentence: life in prison without the
possibility of parole.”)
Nonetheless, Petitioner did seek a downward departure from the then-mandatory
Sentencing Guidelines pursuant to 18 U.S.C. § 3553(b) and Guideline §5K2.0. (Resp’t’s Br.,
Appendix, Pet’r’s Sentencing Submission.) Petitioner sought a downward departure based on his
“age and his inner city socio-economic status.” (Id.)

His attorney argued at length for a

downward departure based on those factors during the sentencing hearing, as well as in a presentencing memorandum. (Resp’t’s Br., Appendix, Sentencing Tr. 8:16-49:14, ECF No. 12-1.)
The court found as follows with regard to the request for a departure:
Of course there are cases where the courts in these United States have departed.
And there were circumstances which existed in those cases, when we talk about the
Larra case or the other cases which you were – you and the government were kind
enough to bring to the Court’s attention.
I say to you as clearly and as candidly as I can, without any malice, this case is not
deserving, not by a stretch is it deserving of the kind of treatment that you have
urged upon this Court. Mr. Grant, in my judgment, doesn’t even come close to be
the beneficiary of a 5K departure. And I respectfully decline to entertain the
motion favorably. The sentence will be within the guideline range.
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(Id. at 51:18-52:5.)
To the extent Respondent argues that the ability to seek a downward departure provided
Petitioner with the review and considerations that Miller requires, the Court finds that argument
unpersuasive. Both parties agree that the 1991 Federal Sentencing Guidelines Manual was the
operative document governing Petitioner’s sentencing. (Pet’r’s Br. 15; Resp’t’s Br. 23.) Under
those guidelines, as stated above, Petitioner sought a downward departure pursuant to § 5K2.0. A
departure was permitted under that provision “if the court finds that there exists an aggravating or
mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the
Sentencing Commission in formulating the guidelines that should result in a sentence different
from that described.”

United States Sentencing Guidelines § 5K2.0, Nov. 1991 ed. The

Guidelines also specifically stated that “[a]ge (including youth) is not ordinarily relevant in
determining whether a sentence should be outside the applicable guideline range.” Id. at § 5H1.1.
As discussed by the Supreme Court itself in Booker, “departures are not available in every
case, and in fact are unavailable in most. In most cases, as a matter of law, the Commission will
have adequately taken all relevant factors into account, and no departure will be legally
permissible.” Booker, 543 U.S. at 234. Based on the general unavailability of downward
departures, as well as the Guidelines in place at the time of Petitioner’s sentencing, the Court finds
that Petitioner’s mere ability to seek a downward departure does not meet the requirements now
set forth by the Supreme Court. Miller requires sentencers to “take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a lifetime in
prison.” Miller, 132 S.Ct. at 2469. While Petitioner may have presented such arguments to the
court when seeking a downward departure back in 1992, the court was constrained by the
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Guidelines and relevant case law at the time. Now, the Supreme Court has explicitly stated that
courts are required to take into consideration “youth and all that accompanies it,” which has created
a substantially different legal landscape.
Respondent’s argument that the Court should find that any error was harmless is also
unpersuasive. Respondent argues that “even if Miller were controlling law at the [time] of Grant’s
sentencing on November 9, 1992, there is no indication that [the sentencing judge] would had to
have given him a lesser sentence.” (Resp’t’s Br. 32.) However, based on the instruction from
the Supreme Court that “given all we have said in Roper, Graham, and this decision about
children's diminished culpability and heightened capacity for change, we think appropriate
occasions for sentencing juveniles to this harshest possible penalty will be uncommon,” Miller,
132 S.Ct. at 2469, the Court cannot agree.
When sentencing Petitioner, the judge stated as follows:
Now, I said this before, I think it bears repetition; I said earlier today that there is a
plague in this land. It has descended upon our land in the form of drugs. And the
area most affected has been our inner cities. And the kids, the kids who have been
victimized, becoming addicted, becoming recruited into becoming clockers, as they
were in this case, in some instances losing their own lives, that’s the tragedy here.
That is the tragedy that the Court is faced with. It’s going on right at this moment
as I talk in the major cities of this country.
And I don’t pretend to have any answers. But I have responsibilities. And in this
case, in the City of Elizabeth, around the Pioneer Homes and Migliore Manor, you
played a prominent part, Mr. Grant, as part of the Pretlow organization in making
this thing go involving hundreds and hundreds of thousands of dollars.
And there hundreds of victims out on that street. Not just because they got up 10
or $15 for a vial of crack, that just isn’t it. What this comes down to is the
responsibility of a United States court to send a message to those who violate the
laws of this land in such a violent and extensive manner, involving the pollution of
our community, the destruction of our children, and, in this case, the murder of an
individual. This Court wants to send a message: Those who commit those crimes
will pay the penalty. Anything less, anything less, Mr. Grant, would truly be a
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disservice to the community and a disservice to the system of justice.
(Resp’t’s Br., Appendix, Sentencing Tr. 58:14-59:15, ECF No. 12-1.)
While the Court agrees that the sentencing judge was clear about his position regarding
the nature of crimes and the basis for his sentence, the Court is unable, and unwilling, to surmise
how the original sentencing judge’s position might have changed based on the instructions from
the Supreme Court in Miller. As discussed above, the legal landscape in which the court handed
down the original sentence is substantially different than today’s. Even if it appears that the court
felt strongly about a particular sentence back in 1992, it is impossible to tell whether that position
would be the same taking into consideration the guidance of Miller. Therefore, the Court cannot
find that any failure to undertake the analysis now required by Miller was harmless error.

III. CONCLUSION
For the reasons stated above, Petitioner’s motion is GRANTED. Petitioner is hereby
entitled to a new sentencing hearing.

In light of the Court’s decision, the parties are hereby

directed to meet and confer and file an appropriate letter application in connection with
Defendant’s criminal case.
An appropriate order follows.

Dated: November 12, 2014
s/ Jose L. Linares
Jose L. Linares, U.S.D.J.

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