Gross v. United States of America

Filing 42

ORDER: The Court has carefully considered the petitioner's "Motion inReply and Reconsideration of All Claims" and finds no merit in the Motion. Accordingly, petitioner's Motion is DENIED. In order to remedy the double jeopardy vi olation that has occurred in this case, the petitioner's conviction for being a drug user in possession of a firearm (Count 1 of the Indictment) is hereby VACATED. Signed by District Judge Aleta A. Trauger on 7/8/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

FREDERICK DEWAYNE GROSS
Petitioner,

]
]
]
]
]
]
]

v.
UNITED STATES OF AMERICA
Respondent.

No. 3:12-1274
Judge Trauger

O R D E R
On May 24, 2013, an order (Docket Entry No.34) was entered
granting the petitioner’s pro se motion for § 2255 relief. In order
to determine the exact nature of that relief, the parties were
invited to identify which of petitioner’s two convictions should be
vacated

by

the

Court

in

order

to

remedy

an

ineffective

assistance/double jeopardy violation.
Presently pending is the government’s response (Docket Entry
No.39) in which it suggests that the Court vacate the petitioner’s
conviction for being a drug user in possession of a firearm (Count
1 of the Indictment).
The petitioner has not identified which of his two convictions
should be vacated by the Court. Instead, he has filed a “Motion in
Reply and Reconsideration of All Claims” (Docket Entry No.40).1

1

The petitioner has also filed Docket Entry No.41, which is
simply an excerpt from the Motion in Reply.

In the Motion in Reply, the petitioner argues that both
convictions were tainted by the double jeopardy violation and, as
a consequence, both convictions should be vacated by the Court.
Docket Entry No.40 at pg.2. He further asks the Court to reconsider
its disposition of his remaining claims in light of the recent
decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). Id. at
pg.8.
In the case of multiplicitous convictions, the Supreme Court
has

already

determined

that

the

taint

of

a

double

jeopardy

violation will be remedied by vacatur of an offending conviction.
Ball

v.

United

necessary,

States,

therefore,

470

for

U.S.

the

856,864

Court

to

(1985).

is

not

both

vacate

It

of

the

petitioner’s convictions in order to remedy the double jeopardy
violation that occurred in this case.
In

Alleyne,

increases

the

the

Supreme

mandatory

Court

minimum

held

sentence

that
for

any
a

fact

crime

that
is

an

“element” of the crime, rather than a “sentencing factor”, that
must be submitted to a jury. In his petition, the petitioner raised
four ineffective assistance of counsel claims. He did not allege
claims directly challenging his sentences. The petitioner was tried
and convicted in 2009, four years before the Alleyne decision.
Therefore, counsel could not possibly be deficient for failing to
raise a claim based upon the holding in Alleyne.
The Court has carefully considered the petitioner’s “Motion in
Reply and Reconsideration of All Claims” and finds no merit in the

Motion. Accordingly, petitioner’s Motion is DENIED.
In order to remedy the double jeopardy violation that has
occurred in this case, the petitioner’s conviction for being a drug
user in possession of a firearm (Count 1 of the Indictment) is
hereby VACATED.
It is so ORDERED.

______________________________
Aleta A. Trauger
United States District Judge