Randoff v. USA

Filing 19

ORDER ADOPTING 7 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 8/21/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
VOSHAUN AMUAR RANDOFF

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VS.

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UNITED STATES OF AMERICA

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CIVIL ACTION NO. 9:13cv289

ORDER
A final judgment was previously entered denying this motion to vacate, set aside or correct
sentence. In denying the motion to vacate, the court relied on a Report and Recommendation of
United States Magistrate Judge that was adopted by the court. At the time the final judgment was
entered, no objections to the Report and Recommendation had been filed. Movant subsequently
informed the court he had not received a copy of the Report and Recommendation. The court then
entered an order directing the Clerk of Court to provide movant with a copy of the Report and
Recommendation and granting movant additional time to file objections. Movant then filed his
objections. The court must therefore conduct a de novo review of the objections.
Movant challenges a conviction for possessing more than 15 kilograms of cocaine with the
intent to distribute. Movant pled guilty to the charge in accordance with a written plea agreement.
In his motion to vacate, he asserted he received ineffective assistance of counsel because counsel
advised him to plead guilty even though the period of limitations had expired for his offense.
An indictment was returned against movant on July 21, 2004. An arrest warrant was issued
on July 22, 2004. Movant failed to appear at an initial appearance hearing on August 19, 2004. On
April 4, 2012, movant was taken into custody in Maryland. He appeared before a United States
Magistraste Judge in Baltimore, Maryland, on April 6, 2012. After it was determined movant was
the person named in the indictment, he was remanded to the custody of the United States Marshals
Service and transferred to this court pursuant to Federal Rule of Criminal Procedure 5.
Movant contends 18 U.S.C. § 3582(a) provides for a 5 year period of limitations for his
offense. He states that in March, 2010, the indictment was dismissed on the government’s motion

and he was later reindicted. He contends the period of limitations expired before the second
indictment was returned, but that his attorney improperly failed to assert this defense.
The Magistrate Judge found that the court’s records did not reflect that the indictment
returned on July 21, 2004, was ever dismissed or that a second indictment was ever returned. The
Magistrate Judge therefore concluded that counsel’s failure to assert a defense based on limitations
did not fall below an objective standard of reasonableness and did not cause movant to suffer
prejudice.
In his objections, movant states that it was a state charge rather than his federal indictment
that was dismissed in 2010. Accordingly, he states the Magistrate Judge correctly concluded that
a defense based on limitations would not have been meritorious. However, movant contends that
rather than a defense based on limitations, counsel should have asserted a defense based on movant
being denied a speedy trial.
In light of movant’s pro se status, his motion to vacate will be deemed amended to include
an additional ground for review based on counsel’s failure to advise him of a defense based upon his
not receiving a speedy trial. However, for the reasons set forth below, this additional ground for
review is without merit and barred by the applicable statute of limitations.
Merits
The Sixth Amendment to the Constitution affords a criminal defendant “the right to a speedy
. . . trial.” The right attaches at the time of arrest or indictment, whichever comes first, and continues
until the date of trial. United States v. Garcia, 995 F.2d 556 (5th Cir. 1993). In considering the
length of delay, a court examines four factors: (1) the length of the delay; (2) the reason for the delay;
(3) the defendant’s assertion of the right and (4) prejudice to the defendant. Barker v. Wingo, 407
U.S. 514 (1972).
The length of the delay is a triggering mechanism in that, if the delay reaches a threshold
level, it is regarded a presumptively prejudicial, requiring the court to balance the remaining three
factors. Robinson v. Whitley, 2 F.3d 562 (5th Cir. 1993). A delay of one year or more generally
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requires the court to balance the remaining three factors. If a delay of more than a year occurred, the
length of the delay, the reason for the delay and the defendant’s diligence in asserting his right is
weighed against the prejudice to the defendant. Depending on how heavily the first three factors
weigh for or against the defendant, prejudice is presumed in some cases, relieving the defendant of
the burden of showing actual prejudice. United States v. Bergfeld, 280 F.3d 486 (5th Cir. 2002).
In this case, the grand jury returned its indictment on July 21, 2004. Movant entered his plea
of guilty on July 3, 2012, almost eight years later. Based on the length of the delay, the remaining
three Barker factors must be analyzed.
With respect to the reason for the delay, “different weights [are to be] assigned to different
reasons for the delay.” Doggett v. United States, 505 U.S. 647, 657 (1992). “If the government
diligently pursues a defendant from indictment to arrest, a speedy trial claim will always fail without
a showing of prejudice.” Bergfeld, 280 F.3d at 489. Conversely, if the government intentionally
held back in its prosecution “to gain some impermissible advantage at trial,” that fact weights heavily
against the government. Doggett, 505 U.S. at 565. The middle ground between diligent prosecution
and bad-faith delay is government negligence in bringing an accused to trial. Id.
In this case, the reason for the delay was movant’s own conduct. The court’s records reflect
that at the time the indictment was returned, movant was incarcerated in the Nacogdoches County
Jail. Prior to the date of the initial appearance hearing, movant was released from custody. The
minute sheet of the initial appearance hearing reflects that movant did not appear. His attorney
informed the court he had spoken with movant, who was in Brooklyn, New York, regarding the
hearing. Movant agreed to meet counsel at his office on the morning of the hearing. However, he
did not appear. The court observed that a warrant had been issued for movant’s arrest, which would
remain in effect. The Presentence Investigation Report states that when petitioner was eventually
arrested on April 4, 2012, he “vehemently represented himself to be Wayne Alonzo Westmoreland,
Jr., not Voshaun Amaur Randoff.”

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Based on the foregoing, the second factor weighs heavily against movant. Although he was
aware of the charges against him, he failed to appear for his initial appearance hearing and remained
a fugitive from the charges for several years. During this time, he was using an alias, which would
have made it difficult for the government to locate him. There is no evidence in the record to
indicate the government acted in bad faith or intentionally held back in its prosecution to gain some
impermissible advantage, and movant does not assert the government acted in bad faith or
negligently.
The third factor also weighs heavily against movant. He did not attempt to assert his right
to a speedy trial during the almost eight years he was a fugitive from the charge against him. At any
point during this period, he could have surrendered to authorities and demanded a speedy trial. His
failure to do so was the result of choices he made.
With respect to the final factor, the length of time between movant’s indictment and the entry
of his guilty plea is presumptively prejudicial. However, movant had made no attempt to explain
how the delay resulted in actual prejudice. As the second and third factors weigh so heavily against
movant, a showing of actual prejudice is required in this case.
As the second and third Barker factors weigh heavily against movant, and as he has failed
to demonstrate that the delay he experienced resulted in actual prejudice, it cannot be concluded
that a defense based on movant not receiving a speedy trial would have been successful. As a
result, counsel’s failure to assert such a defense did not fall below an objective standard of
reasonableness and did not cause movant to suffer prejudice. Movant’s additional ground for
review is therefore without merit.
Limitations
In addition to being without merit, movant’s additional ground for review is also barred by
the applicable statute of limitations. A one year period of limitations applies to a motion to vacate,
set aside or correct sentence filed pursuant to 28 U.S.C. § 2255. The period of limitations begins to
run on the date on which the judgment of conviction became final. Movant did not appeal his
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conviction or sentence. His conviction therefore became final on February 5, 2013, 14 days after his
Judgment in a Criminal Case was entered and the date on which the time period for filing an appeal
expired. As movant did not assert his additional ground for review until he filed his objections more
than two years later, his additional ground for review was asserted after the applicable period of
limitations expired.
However, before concluding that the statute of limitations bars consideration of movant’s
additional ground for review, the possibility that the additional ground for review “relates back” to
when the original motion to vacate was filed should be considered. Pursuant to Federal Rule of Civil
Procedure 15(c)(1)(B), “[a]n amendment to a pleading relates back to the date of the original
pleading when . . . the amendment asserts a claim or defense that arise out of the conduct,
transaction, or occurrence set out–or attempted to be set out–in the original pleading . . . .”
Additional grounds for review asserted in a motion to vacate proceeding do not relate back merely
because they arose out of the same criminal proceeding. Mayle v. Felix, 545 U.S. 644 (2005).
Additional grounds for review do not relate back if they assert “a new ground for relief supported
by facts that differ in both time and type from those the original pleadings set forth.” Id.
Movant’s assertion that he received ineffective assistance of counsel because counsel did not
inform him of a defense based on not receiving a speedy trial is based on a completely different
theory than his original assertion that counsel did not inform him of a defense based on limitations.
While both grounds for review are based on delay, resolution of movant’s additional ground review
requires the consideration of several additional facts that would not be applicable to his original
ground for review. As the additional ground for review is based on a different legal theory that
would require the consideration of several facts not previously pled, movant’s additional ground for
review does not relate back to his original ground for review.
ORDER
Accordingly, movant’s objections are OVERRULED. The proposed findings of fact and
conclusions of law of the Magistrate Judge are correct and the report of the Magistrate Judge is
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ADOPTED. In addition, the additional ground for review asserted in the objections are without
merit and barred by the applicable statute of limitations.
Further, movant is not entitled to the issuance of a certificate of appealability. An appeal
from a judgment denying federal habeas relief may not proceed unless a judge issues a certificate of
appealability. See U.S.C. § 2253. The standard for granting a certificate of appealability requires
a movant to make a substantial showing of the denial of a federal constitutional right. See Slack v.
McDaniel, 529 U.S. 473, 483-84; Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). In making
a substantial showing, the movant need not establish that he should prevail on the merits. Rather,
he must demonstrate that the issues are subject to debate among jurists of reason, that a court could
resolve the issues in a different manner, or that the questions presented are worthy of encouragement
to proceed further. Slacke, 529 U.S. at 483-84; Avila v. Quarterman, 560 F.3d 299, 304 (5th Cir.
2009). Any doubt regarding whether to grant a certificate of appealability should be resolved in
favor of the movant. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir. 2000).
In this case, the movant has not shown that the issue of whether his grounds for review are
meritorious or barred by the applicable statute of limitations is subject to debate among jurists of
reason. In addition, the questions presented are not worthy of encouragement to proceed further.
As a result, a certificate of appealability shall not be issued.
So ORDERED and SIGNED this 21 day of August, 2017.

___________________________________
Ron Clark, United States District Judge

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