Borden v. United States

LEONARD BORDEN v. UNITED STATES OF AMERICA.

Nos. 21-CV-1276-ADA, W-18-CR-054-ADA-5

United States District Court, W.D. Texas, Waco Division

May 11, 2022

MEMORANDUM OPINION AND ORDER

ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE

Before the Court is Petitioner Leonard Borden's Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C § 2255. ECF No. 256.^[1] Also before the Court is Respondent United States of America's (the Government's) Response in opposition to the Motion. ECF No. 260. After reviewing Petitioner's Motion, the Government's Response, Petitioner's Reply, and the applicable law, the Court DENIES the Motion for the reasons stated below.

I. Background

Petitioner federal prisoner number 56873-177, is a 42-year-old inmate at the Federal Correctional Institution in Herlong, California. See BOP, Find an Inmate, https://www.bop.gov /inmateloc/ (search for Reg. No. 56873-177) (last visited April 25, 2022). His projected release date is January 4, 2035. Id.

In 2009, Waco Police Department investigators identified a heroin dealer in the local area. ECF No. 150 at 1. They also determined the dealer bought large quantities of heroin from Petitioner in Fort Worth. Id. On two occasions they arranged for the dealer to make controlled heroin buys from Petitioner. Id. at 2.

On February 13, 2018, Petitioner was indicted for his drug-trafficking activities. ECF No. 3. At his re-arraignment hearing, he pled guilty to conspiring to possess and distributing heroin between 2009 and April of 2013:

MS. SMITH-BURRIS: Mr. Borden.

The grand jury charges: Beginning in or about 2009, the exact date unknown, and continuing until in or about April of 2013, in the Western District of Texas and elsewhere, the defendant, Leonard Borden, and others, both known and unknown to the grand jury, did unlawfully and willfully combine, conspire, confederate, and agree together, and with each other and others, to possess with the intent to distribute and to distribute a controlled substance, which offense involved a mixture or substance containing a detectable amount of heroin, a Schedule I controlled substance, contrary to Title 21, United States Code, Sections 841(a)(1) and 841(b)(1)(C), and in violation of Title 21, United States Code, Section 846.

THE COURT: Mr. Borden, do you understand the charge set forth in the indictment and read here by the government's attorney?

DEFENDANT BORDEN: Yes, I do.

THE COURT: Do you have any questions regarding what you're charged with or the range of punishment?

DEFENDANT BORDEN: No, sir.

THE COURT: As to the offense of conspiracy to possess with intent to distribute and distribution of heroin, a Schedule I controlled substance as alleged in the indictment, how do you plead, sir, guilty or not guilty?

DEFENDANT BORDEN: I plead guilty.

ECF No. 246 at 24:1-25:2. He also agreed to the following factual summary:

MS. SMITH-BURRIS: . . . [I]n 2009, investigator David Starr with the Waco Police Department, Drug Enforcement Unit, received information that an individual named Donta Stuart was selling heroin in the Waco, Texas area.....

The investigation revealed that Stuart had been buying black tar heroin from Leonard Borden since at least March of 2009, that he began by buying quarterounce amounts and, at some point, began buying two ounces at a time up until he was buying from Borden approximately 15 ounces at a time. On two time -- two occasions during the investigation, agents with the Waco Police Department and DEA went to Fort Worth with Donta Stuart, and Donta Stuart conducted two one-ounce controlled buys of black tar heroin from Borden. On one of those occasions, surveillance saw Borden and Stuart meet with another individual in order to pick up the black tar heroin. ....

THE COURT: All right. Is that what you did, sir?

MR. FAULKNER: Your Honor, we just -- Mr. Borden agrees that he distributed some amount of heroin, just not with the exact amounts mentioned in the factual basis.

THE COURT: All right. So noted. And your attorney will have the right to make any objections with respect to the quantities distributed at the time of sentencing.

Is that -- other than that, is that what you did, Mr. Borden?

DEFENDANT BORDEN: Yes, sir.

THE COURT: And is that what you're pleading guilty to?

DEFENDANT BORDEN: Conspiracy, yes, sir.

THE COURT: And distribution of heroin?

DEFENDANT BORDEN: Yes, sir.

Id. at 25:6-26:22.

Petitioner was sentenced to 235 months' imprisonment on April 26, 2019. ECF No. 240 at 2. He appealed the Court's “drug quantity determination and the resulting base offense level calculation.” United States v. Borden, 799 Fed.Appx. 890, 890 (5th Cir. 2020). His sentence was affirmed. Id. at 891. His petition for a writ of certiorari was denied on October 13, 2020. Borden v. United States, 141 S.Ct. 607 (2020).

Petitioner now claims in his Motion-signed on December 3, 2021-that his counsel provided constitutionally ineffective assistance. ECF No. 256 at 3-4. Specifically, he contends his counsel failed to (1) assert the five-year statute of limitations had run; (2) argue the Government could not prove all the elements of the offense because the conspiracy was “interrupted from Nov. 2010 to Dec. 2012”; (3) oppose the Court relying on the 2018 Sentencing Guidelines; and (4) object to the Court considering his post-offense conduct at his sentencing. Id.

II. Legal Standard

Section 2255 “ ‘provides the primary means of collateral attack on a federal sentence.' ” Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000) (quoting Cox v. Warden, 911 F.2d 1111, 1113 (5th Cir. 1990)). But “it does not encompass all claimed errors in conviction and sentencing.” United States v. Addonizio, 442 U.S. 178, 185 (1979). It identifies only four grounds on which a movant may obtain relief: (1) the “sentence was imposed in violation of the Constitution or laws of the United States, (2) the sentencing court was without jurisdiction to impose the sentence, (3) the sentence was in excess of the maximum authorized by law, or (4) the sentence is otherwise subject to collateral attack.” United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995) (citations omitted). Consequently, it does not permit a claim of error that is neither constitutional nor jurisdictional unless the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428 (1962). It also requires a movant to bear the burden of establishing a claim of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980) (citing United States v. Kastenbaum, 613 F.2d 86, 89 (5th Cir. 1980)).

III. Discussion

A. Limitations

The Government maintains Petitioner's Motion is untimely and he is not entitled to equitable tolling. ECF No. 260 at 2.

A federal prisoner must normally file his motion under 28 U.S.C. § 2255 within one year from the date on which (1) the judgment became final; (2) the government-created impediment to filing the motion was removed; (3) the United States Supreme Court initially recognized, and made retroactively applicable to cases on collateral review, the legal predicate for the motion; or (4) the prisoner could have discovered, through due diligence, the factual predicate for the motion. 28 U.S.C. § 2255(f)(1)-(4).

“ ‘The doctrine of equitable tolling preserves a plaintiff's claims when strict application of the statute of limitations would be inequitable.' ” United States v. Petty, 530 F.3d 361, 364 (5th Cir. 2008) (quoting United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000)). Equitable tolling is not, however, available for “ ‘garden variety claims of excusable neglect.' ” Lookingbill v. Cockrell, 293 F.3d 256, 264 (5th Cir. 2002) (quoting Rashidi v. Am. President Lines, 96 F.3d 124, 128 (5th Cir. 1996)). Indeed, equitable tolling “is permitted only ‘in rare and exceptional circumstances.' ” Cousin v. Lensing, 310 F.3d 843, 848 (5th Cir. 2002) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998)). And because it is a discretionary doctrine, a court's “determination of whether equitable tolling applies ‘turns on the facts and circumstances of a particular case.' ” Clarke v. Rader, 721 F.3d 339, 344 (5th Cir. 2013) (quoting Fisher v. Johnson, 174 F.3d 710, 713 (5th Cir.1999)).

The federal prisoner has the burden of proving his entitlement to equitable tolling. Phillips v. Donnelly, 216 F.3d 508, 511 (5th Cir. 2000). To satisfy his burden, he must show “(1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way” of timely filing a § 2255 motion. Lawrence v. Florida, 549 U.S. 327, 336 (2007).

Petitioner does not assert in his Motion that a government-created impediment prevented him from timely filing his Motion. 28 U.S.C. § 2255(f)(2). He does not suggest the Supreme Court initially recognized the legal predicate for his Motion within the past year and made it retroactively applicable to cases on collateral review. Id. § 2255(f)(3). He also does not claim he recently discovered the factual predicate for his Motion. Id. § 2255(f)(4).

Petitioner's petition for writ of certiorari was denied by the Supreme Court on October 15, 2020. Borden, 141 S.Ct. at 607. His conviction, therefore, became final on that same day. United States v. Thomas, 203 F.3d 350, 356 (5th Cir. 2000). Thus, Petitioner had until October 15, 2021, to timely file a § 2255 motion. 28 U.S.C. § 2255(f)(1).

Petitioner constructively filed his Motion on December 3, 2021, the day he signed and presumably placed it in the prison mail system. ECF No. 256 at 5; See United States v. Patterson, 211 F.3d 927, 930 (5th Cir. 2000) (explaining a pro se prisoner's habeas corpus petition is...