Clinton v. USA

Filing 13

MEMORANDUM OPINION AND ORDER AFFIRMING AND ADOPTING REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE adopting 12 Report and Recommendation and denying 1 Motion to Vacate, Set Aside or Correct Sentence (2255). ORDERED that this civil action be DISMIS SED and STRICKEN from the active docket of this Court. Petitioner is DENIED a certificate of appealability. Clerk to enter judgment in this matter. Signed by Senior Judge Frederick P. Stamp, Jr. on 12/19/2012. Copy mailed to pro se petitioner by CMRR.(cwm) (Additional attachment(s) added on 12/19/2012: # 1 Certified Mail Return Receipt) (cwm).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
GREGORY KEITH CLINTON,
Petitioner,
v.

Civil Action No. 3:10CV85
(Criminal Action No. 3:08CR5)
(STAMP)

UNITED STATES OF AMERICA,
Respondent.

MEMORANDUM OPINION AND ORDER
AFFIRMING AND ADOPTING REPORT AND
RECOMMENDATION OF MAGISTRATE JUDGE
I.

Background

The pro se1 petitioner pled guilty to Count Three of the
Indictment entered against him by a federal grand jury in this
district, which charged him with distribution of 9.03 grams of
crack

cocaine,

841(b)(1)(B).

in

violation

of

21

U.S.C.

§

841(a)(1)

and

The guilty plea was entered pursuant to a plea

agreement signed by both the United States and the petitioner, in
which, in consideration for multiple concessions by the government,
the petitioner waived his right to appeal his sentence, but not to
collaterally attack it.
court

on

April

24,

The petitioner entered his plea in open

2008.

This

Court

conducted

a

thorough

examination of the petitioner’s understanding of the consequences
of a guilty plea, and of the terms of his plea agreement.

Also at

the hearing, the United States presented a factual basis for the

1

“Pro se” describes a person who represents himself in a court
proceeding without the assistance of a lawyer.
Black’s Law
Dictionary 1341 (9th ed. 1999).

plea through the testimony of Sergeant Dean Michael Olack of the
Eastern Panhandle Drug and Violent Crimes Task Force, West Virginia
State Police, to which testimony the petitioner did not object.
Following this Court’s determination that the petitioner was aware
of the consequences of a guilty plea and of the terms of his plea
agreement, that he was competent to enter a plea of guilty, and
that a basis in fact had been established for the plea, this Court
accepted the petitioner’s plea of guilty.
At the petitioner’s sentencing hearing on August 5, 2008, this
Court accepted the terms of the plea agreement, adjudged the
petitioner guilty pursuant to his guilty plea and to the plea
agreement, and sentenced the petitioner to eighty-seven months
imprisonment.

This

sentence

was

based

upon

this

Court’s

consideration of a number of factors, including the circumstances
of the crime, the petitioner’s extensive criminal history as
presented

in

the

petitioner’s

presentence

report,

and

the

sentencing objectives set forth in the United States Sentencing
Guidelines.
On August 6, 2008, the petitioner filed a notice of appeal.
On appeal, the petitioner argued procedural unreasonableness of his
sentence on the ground that the testimony of the confidential
informant

regarding

controlled

buys

of

crack

cocaine

from

petitioner was not credible.
The judgment of this Court was affirmed by the United States
Court of Appeals for the Fourth Circuit in an unpublished per

2

curiam opinion on June 11, 2009.

Mandate issued on July 6, 2009.

The petitioner did not seek a writ of certiorari from the United
States Supreme Court.

The petitioner then filed this motion under

28 U.S.C. § 2255 to vacate, set aside or correct a sentence by a
person in federal custody.

The government filed a response to the

petition, to which the petitioner replied.
The matter was referred to United States Magistrate Judge
James E. Seibert for initial review and report and recommendation
pursuant

to

Magistrate

Local

Judge

Rule

of

Seibert

Prisoner

issued

a

Litigation

report

and

Procedure

2.

recommendation

recommending that the petitioner’s § 2255 application be denied and
dismissed with prejudice on the basis that the petitioner’s claims
were all procedurally or time barred, or both.

The magistrate

judge informed the parties that if they objected to any portion of
the report, they must file written objections within fourteen days
after being served with copies of the report. The petitioner filed
a document entitled “Truth” which this Court will construe as
objections

to

the

report

and

recommendation.

However,

the

petitioner’s objections fail to address the grounds upon which the
magistrate judge recommends dismissal of his petition, and only
serve to reiterate the merits of the claims asserted in his
petition.

For the reasons set forth below, this Court adopts and

affirms the magistrate judge’s report and recommendation in its
entirety.

3

II.

Applicable Law

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court must conduct
a

de

novo

review

of

any

portion

of

the

magistrate

recommendation to which objection is timely made.

judge’s

As to those

portions of a recommendation to which no objection is made, a
magistrate judge’s findings and recommendation will be upheld
unless they are “clearly erroneous or contrary to law.”
§ 636(b)(1)(A).

28 U.S.C.

The petitioner has filed objections and, while

these objections are nonresponsive to the grounds for dismissal
recommended by the magistrate judge, this Court will nonetheless
undertake a de novo review of the report and recommendation.
III.

Discussion

In his § 2255 petition, the petitioner asserts two bases for
federal habeas corpus relief.

First, he alleges, as he did in his

direct appeal, that at his August 5, 2008 sentencing hearing,
“witness for the Government, Mr. Francesconi [“CI”] provided false
and misleading statements to the court.”
asserts

that

the

Assistant

United

Second, the petitioner

States

Attorney

(“AUSA”)

committed prosecutorial misconduct at the sentencing hearing by:
(1) permitting the CI to provide false and misleading statements
that she “knew or should have known” were false; and by (2)
encouraging the CI to provide false statements.

The United States

responded, presenting three defenses to the allegations in the
petition: (1) that neither of the issues which the petitioner
presents as grounds for relief are authorized under § 2255; (2)

4

that the issues of prosecutorial misconduct were not raised on
appeal, and thus cannot be raised in this, a collateral proceeding
under

§

2255;

and

(3)

because

the

petitioner

has

neither

demonstrated ‘cause’ and actual prejudice nor actual innocence, his
claims are procedurally defaulted.
In the petitioner’s reply to the United States’ response, he
alleges that the United States failed to respond to all of the
allegations made in his petition, and also reiterates these claims.
Further, he raises new allegations for the first time and without
leave of court.
instances

of

These new allegations include five new alleged

prosecutorial

misconduct,

all

relating

to

the

testimony of the CI, two allegations of ineffective assistance of
trial counsel at the sentencing hearing, and one allegation of
ineffectiveness of appellate counsel in failing to utilize evidence
provided to him by the petitioner’s sister which the petitioner
claims support his assertion that the CI testified falsely. In the
report and recommendation, the magistrate judge found that the
petitioner’s claims should be dismissed in their entirety as
procedurally or time barred.
A.

Procedurally barred claims
1.

Claims previously rejected on appeal

The magistrate judge first found that the petitioner’s first
allegation,

that

the

CI

gave

false

and

misleading

testimony

regarding the petitioner’s relevant conduct, was raised and fully
decided on appeal.

Claims which are raised and rejected on direct

5

appeal

may

not

be

raised

in

a

later

collateral

attack.

Boeckenhaupt v. United States, 537 F.2d 1182 (4th Cir. 1976)
(citing Herman v. United States, 227 F.2d 335 (4th Cir. 1955)).
Accordingly, the magistrate judge recommends that the petitioner’s
first claim be dismissed as previously decided and procedurally
barred.

After review of the record, this Court agrees and will

thus dismiss this claim as procedurally barred.

See United States

v. Clinton, 331 F. App’x 262, 263 (4th Cir. 2009) (unpublished)
(“Clinton appeals, challenging the procedural reasonableness of his
sentence on the ground that the confidential informant was not
credible.
2.

We affirm.”) (emphasis added)).
Constitutional claims not previously raised on appeal

The magistrate judge next correctly recognized in his report
and recommendation that generally, constitutional issues not raised
on appeal cannot later be raised in a § 2255 petition.

However, as

the magistrate judge further explained, an exception applies which
allows a petitioner to raise such constitutional issues in a
collateral attack if he can demonstrate both cause for his failure
to raise the issue on appeal AND actual prejudice resulting from
the issues which he seeks to raise.

As stated by the United States

Court of Appeals for the Fourth Circuit:
In order to collaterally attack a conviction or sentence
based upon errors that could have been but were not
pursued on direct appeal, the movant must show cause and
actual prejudice resulting from the errors of which he
complains . . . .

6

United States v. Mikalajunas, 186 F.3d 490, 493 (4th Cir. 1999)
(emphasis added) (citing United States v. Frady, 456 U.S. 152, 16768 (1982); United States v. Maybeck, 23 F.3d 888, 891-92 (4th Cir.
1994)).
In the alternative, if a petitioner is unable to show cause
and actual prejudice, he may “demonstrate that a miscarriage of
justice would result from the refusal of the court to entertain a
collateral

attack.”

Mikalajunas,

186

F.3d

at

493.

Such

“miscarriage of justice” must be established by showing “actual
innocence,” by clear and convincing evidence.

Id.

“Actual

innocence” is described as a showing that “it is more likely than
not, in light of all the evidence, that no reasonable juror would
have convicted him.”

Bousley v. United States, 523 U.S. 614, 621

(1998).
The

magistrate

judge

concluded

that

all

claims

of

prosecutorial misconduct, both those raised in the petitioner’s
original petition, and those raised for the first time in his reply
to the United States’ response thereto constitute constitutional
claims2 which were not raised on direct appeal.

Based upon the

above requirements for bringing these claims in a § 2255 proceeding
after failing to raise them on appeal, Magistrate Judge Seibert
also found that the petitioner failed to demonstrate or even to

2

As explained by the magistrate judge, these claims constitute
allegations of violations of the petitioner’s Fifth Amendment right
to due process.
7

allege the required showing of “cause” and “prejudice,” or in the
alternative, of “actual innocence.”

Mikalajunas, 186 F.3d at 493.

After review of the filings in this case, this Court can find
no attempt by the petitioner to explain the reason why these claims
were not raised on appeal,3 or how the failure to raise the same
prejudiced him.

Further, as the magistrate judge accurately

explains, the petitioner has not only failed to claim actual
innocence, but in the face of his sworn testimony at his plea
hearing wherein he admitted that he was guilty of the charge to
which

he

pled

guilty,

could

not

so

claim

at

this

point.

Accordingly, this Court agrees with the findings and conclusions of
the magistrate judge, and dismisses all claims of prosecutorial
misconduct, both those raised in the original petition and those
raised

for

the

first

time

in

the

petitioner’s

reply,

as

procedurally barred as well.
B.

Time-barred claims
The only remaining claims raised by the petitioner in either

his original motion or in his reply to the United States’ response
are those of ineffective assistance of trial counsel at the
sentencing hearing and ineffective assistance of appellate counsel
on his direct appeal.

The magistrate judge found these claims to

3

The petitioner does claim ineffective assistance of appellate
counsel in his reply to the United States’ response. However, his
allegations of ineffective assistance of appellate counsel relate
to appellate counsel’s failure to present evidence which he
believed supported the claims that the CI testified falsely. No
assertion is made that appellate counsel failed to raise the
petitioner’s claims of prosecutorial misconduct.
8

be barred by the one-year statute of limitation set forth in the
Antiterrorism and Effective Death Penalty Act (“AEDPA”).4
U.S.C. § 2244(d)(1).

28

Under the facts of this case, the one-year

AEDPA statute of limitations runs from “the date on which the
judgment became final by the conclusion of direct review or the
expiration of the time for seeking such review.”
§ 2241(d)(1)(A).

28 U.S.C.

This limitations period is tolled until the time

period for filing a petition for a writ of certiorari from the
United States Supreme Court has expired, even if the petitioner
does not file such a petition.

See Clay v. United States, 537 U.S.

522 (2003).
As noted above, the Fourth Circuit entered judgment dismissing
the petitioner’s direct appeal on June 11, 2009.

Accordingly, the

petitioner’s deadline to file a petition for a writ of certiorari
was September 11, 2009.

The magistrate judge properly based his

calculations of the time limitation period upon this date and thus
correctly found that the petitioner’s sentence became final and the
statute

of

limitations

expired

on

September

11,

2010.

The

petitioner did not raise any ineffective assistance of counsel
claims until he filed his reply brief–on September 24, 2010.
Accordingly, the magistrate judge concluded that these claims are

4

This Court notes that the United States has not raised the
statute of limitations a defense to these claims, which were only
introduced following its response to the petition. However, Fourth
Circuit law allows courts to raise the AEDPA limitations period sua
sponte. Hill v. Braxton, 277 F.3d 701, 706 (4th Cir. 2002).
9

time barred as filed after the expiration of the statute of
limitations on September 11, 2010.
Magistrate Judge Seibert also considered whether or not the
ineffective assistance of counsel claims could be considered timely
by “relating back” to the date that the petitioner filed his
original § 2255 petition in this case, prior to the expiration of
the statute of limitations on August 18, 2010.

“Relation back”

under Rule 15(c)(2) of the Federal Rules of Civil Procedure allows
claims raised in an amended pleading to be considered filed on the
date

of

the

filing

of

the

original

pleading

for

statute

of

limitations purposes when “the original and amended petition state
claims that are tied to a common core of operative facts.”

Fed. R.

Civ. P. 15(c)(2).
Based upon this requirement for relation back, the magistrate
judge then found that the petitioner’s claims of ineffective
assistance of counsel did not arise out of a “common core of
operative facts” as the allegations raised in the original motion
and thus could not relate back to avoid being time barred.

For the

following reasons, this Court agrees with this conclusion.
First, it is clear without additional explanation that the
claim of ineffective assistance of appellate counsel does not arise
out of the same “conduct, transaction, or occurrence” as the
original petition.
(4th Cir. 2000).

United States v. Pittman, 209 F.3d 314, 317-19
The original petition dealt entirely with the

truthfulness of a government witness at the petitioner’s sentencing

10

hearing and the conduct of the AUSA with regard to that witness.
The allegations made in the reply allege failings of appellate
counsel on appeal to utilize all evidence available to support the
petitioner’s appeal.

The claims regarding appellate counsel arose

from an entirely different proceeding and portion of this case, and
do

not

concern

the

same

type

of

conduct.

Accordingly,

the

petitioner’s claims of ineffective assistance of counsel on appeal
do not relate back and are time barred.
With regard to the allegations of ineffective assistance of
trial counsel, the petitioner alleges that trial counsel was
ineffective by “opening the door” to a new line of testimony by the
CI,

and

by

leading

the

CI

at

the

sentencing

hearing.

The

magistrate judge correctly noted in his report and recommendation
that, simply because all of the allegations made in the original
petition and the allegations of ineffective assistance of trial
counsel arise from the same proceeding does not mean that they
arise out of the same “conduct, transaction or occurrence.”
Pittman, 209 F.3d at 318.

See

Rather, relation back is only proper

when the new claims allege the same “time and type” of “conduct,
transaction or occurrence as the original petition.”

Id. (quoting

United States v. Craycraft, 167 F.3d 451, 456-457 (8th Cir. 1999)).
The magistrate judge found that the allegations made regarding
ineffective assistance of trial counsel tangentially relate to the
allegations made in the original petition.

However, he also found

that, the original claims only dealt with conduct by the CI and by

11

the

AUSA,

and

make

no

mention

of

conduct

of

trial

counsel.

Accordingly, they do not arise out of the same “time and type” of
conduct

and

occurrence”

do
with

not

share

any

claim

a

common
raised

“conduct
in

the

transaction,

original

or

petition.

Finally, the magistrate judge noted that the petitioner was aware
of these allegations at the time that he filed his original
petition but failed to include them, and thus should not receive
the benefits of relation back.

This Court agrees and as such,

finds that the petitioner’s claims of ineffective assistance of
trial counsel are also time barred.
IV.

Conclusion

For the reasons stated above and upon de novo review, the
report and recommendation of the magistrate judge is AFFIRMED AND
ADOPTED IN ITS ENTIRETY.

Accordingly, the petitioner’s motion to

vacate, set aside or correct his sentence pursuant to 28 U.S.C.
§ 2255 is DENIED.

It is further ORDERED that this civil action be

DISMISSED and STRICKEN from the active docket of this Court.
Should the petitioner choose to appeal the judgment of this
Court to the United States Court of Appeals for the Fourth Circuit,
he is ADVISED that he must file a notice of appeal with the Clerk
of this Court within 60 days after the date of the entry of this
judgment order.
This

Court

finds

that

it

is

inappropriate

certificate of appealability in this matter.

to

issue

a

Specifically, the

Court finds that the petitioner has not made a “substantial showing

12

of

the

denial

§ 2253(c)(2).

of

a

constitutional

right.”

See

28

U.S.C.

A prisoner satisfies this standard by demonstrating

that reasonable jurists would find that any assessment of the
constitutional claims by the district court is debatable or wrong
and that any dispositive procedural ruling by the district court is
likewise debatable.
38 (2003).

See Miller-El v. Cockrell, 537 U.S. 322, 336-

Upon review of the record, this Court finds that the

petitioner has not made the requisite showing.

Accordingly, the

petitioner is DENIED a certificate of appealability.
The petitioner may, however, request a circuit judge of the
United States Court of Appeals for the Fourth Circuit to issue the
certificate.
IT IS SO ORDERED.
The Clerk is directed to transmit a copy of this order to the
pro se petitioner by certified mail, and to counsel of record
herein.

Pursuant to Federal Rule of Civil Procedure 58, the Clerk

is DIRECTED to enter judgment on this matter.
DATED:

December 19, 2012

/s/ Frederick P. Stamp, Jr.
FREDERICK P. STAMP, JR.
UNITED STATES DISTRICT JUDGE

13