Cochran v. Warden

LARRY COCHRAN, Petitioner, v. WARDEN, Respondent.

Civil Action No. JKB-21-0220

United States District Court, D. Maryland

August 3, 2021

MEMORANDUM OPINION

James K. Bredar Chief Judge

Self-represented petitioner Larry Cochran, a federal inmate at Federal Correctional Institution (“FCI”) Cumberland filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, seeking his release from incarceration. The United States has filed a Response, seeking dismissal of the Petition as a successive motion under 28 U.S.C. § 2255, and Cochran filed a Reply. Also pending are Cochran's Motion to Strike (ECF No. 14), Motion for Request for the Court to Take Judicial Notice of Indisputable Adjudicative Facts (ECF No. 16), Motion for Ruling on the Petition for an Emergency Enlargement Custody (ECF No. 17) Motion for Summary Judgment (ECF No. 25), and Emergency Motion for Immediate Release (ECF No. 26).

I. Background

On November 15, 2007, a jury sitting in the United States District Court for the Northern District of Indiana found Cochran guilty of one charge of possession with intent to distribute five grams or more of a mixture or substance containing cocaine base in violation of 21 U.S.C. § 841(a)(1).

Cochran argues in the Petition that he is entitled to federal habeas relief because cocaine base and crack cocaine do not constitute controlled substances under 21 U.S.C. § 841(a)(1). (Petition at 23, ECF No. 1; Reply at 4, ECF No 15.) His basis for this argument is that neither “cocaine base” nor “crack cocaine” are listed in the Schedules of Controlled Substances in 21 U.S.C. § 812, and accordingly, he is actually innocent of the instant offense. (Petition at 6-7, 2728, 35, 40-43.) Additionally, Cochran seeks an “enlargement of custody” to place him on home confinement pending a decision on the merits of his Petition, asserting that the COVID-19 pandemic poses a danger to him as a “medically vulnerable high risk” inmate. (Id. at 16; see ECF No. 8-1 at 4 (memorandum determining that Cochran meets “the requirements of Reduction in Sentence for Debilitated Medical Conditions”).)

A. Pre-Trial Motions

Following his arrest and detention, Cochran was represented by attorney Jerome Flynn, who filed pre-trial motions to suppress evidence. On September 8, 2006, the Northern District of Indiana granted Cochran's request to appoint James Thiros as Cochran's new counsel, but it noted that further requests for new counsel would not be granted. (See N.D. Ind. Docket, Opp'n Exh. 1 at #11-12, ECF No. 11-1.)^[1] Trial was scheduled for January 8, 2007. (Id. at #15.) After a two-part, pre-trial motions hearing on December 20, 2006, the court denied Cochran's motion to suppress evidence. (Id. at #27.) The next week, Cochran moved to proceed pro se. (Id. at #28.)

On December 29, 2006, following a Faretta hearing, ^[2] at which Cochran was advised about the risks of self-representation, the district court granted the motion for petitioner to proceed pro se and reset the trial for February 20, 2007, with Thiros acting as standby counsel. (Id. at #30.) After the district court granted Thiros' motion to withdraw as standby counsel, attorney Charles Stewart was appointed in his place. (Id. at #85.) Stewart filed several motions on Cochran's behalf, including one to continue trial, and the trial was rescheduled to start on June 11, 2007. (Id. at #100.)

On April 30, 2007, Cochran moved to dismiss the indictment for lack of jurisdiction. (Id. at #101.)^[3] On May 22, 2007, Cochran's counsel requested a psychiatric exam, to determine Cochran's competency to stand trial, and the district court granted another continuance of trial until November 13, 2007. (Id. at #114, 130.)

On November 5, 2007, Cochran filed a pro se motion to dismiss the indictment on the grounds that it failed to specify a material element of the offense. (Id. at #256, 269; see also ECF No. 1-1 at 10-17.) Cochran argued that the Indictment was fatally defective because it failed to allege which of the four coca plant derivatives listed in 21 U.S.C. § 841(b)(1)(B)(ii) was in the specific cocaine base mixture he was alleged to have possessed with intent to distribute. (ECF No. 1-1 at 10-17.) The district court ruled that Cochran waived the argument because he failed to raise it by the pre-trial motions deadline and that the argument had no merit.^[4] (Id. at 36-40.)

B. Trial and Sentencing

Trial commenced on November 13, 2007. Because Cochran refused to assure the court that he would not disrupt the trial, he observed the proceedings from his cell through live audio and video. The trial judge told prospective jurors during voir dire that Cochran had an absolute right not to be present in the courtroom during his trial, that Cochran's absence from the courtroom was not to be considered as evidence against him, and that his absence did not create any inference of guilt. See Cochran, 309 Fed.Appx. 2, 4 (7th Cir. 2009). The jury returned a guilty verdict on the second day of trial. (ECF No. 11-1 at #266.)

On January 25, 2008, Cochran, who was subject to a mandatory minimum sentence of sixty months of imprisonment, was sentenced to a term of 405 months, followed by five years of supervised release. (Id. at #280.) The sentencing court found that Cochran's relevant conduct included responsibility for approximately twenty grams of crack cocaine and an additional twenty kilograms of cocaine powder as well as obstruction of justice, making his combined offense level 36. His extensive criminal history, totaling 21 criminal history points, placed him in Category VI of the Guidelines. When combined with his offense level, this criminal history resulted in a sentencing range of 324 to 405 months. (Id. at #457, 571.)

Since then, Cochran's sentence has been reduced twice. First, pursuant to the Fair Sentencing Act and the U.S. Sentencing Commission's adoption of Amendment 782, Cochran's Guidelines offense level dropped by two points, and pursuant to 18 U.S.C. § 3582(c)(2), he was resentenced on January 13, 2015 to 327 months of imprisonment, the upper end of his new range. (Id. at #456.) Second, under the First Step Act's mandate to reduce existing drug sentences if a prisoner's crime of conviction would presently carry a lower maximum sentence, the government agreed that Cochran's offense would now fall within § 841(b)(1)(C)'s penalty provision and carry a maximum penalty of twenty years' imprisonment. (Id. at #571.) On May 30, 2019, the district court resentenced Cochran to 240 months of imprisonment, followed by three years of supervised

C. Post-Sentencing Proceedings

Following his first sentencing, Cochran appealed his conviction and sentence, and the Seventh Circuit affirmed both. See United States v. Cochran, 309 Fed.Appx. 2 (7th Cir. 2009), cert. denied, 556 U.S. 1199 (2009).

Cochran then filed a Motion to Vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 on September 8, 2009, which was denied on November 30, 2009. See United States v. Cochran, Crim. No. 06-114, 2009 WL 4638836 (N.D. Ind. Nov. 30, 2009). On January 14, 2010, Cochran moved for a certificate of appealability, which the district court also denied. (See ECF No. 11-1 at #371, 372.)

On September 21, 2010, Cochran filed a “Motion for Relief from a Judgment or Order Pursuant to Rule 60(b)(5), ” which the district court construed as a successive motion to vacate under § 2255 and denied. (Id. at #386-389.) Cochran then filed another motion under § 2255, which the district court denied on October 7, 2010. (Id. at #393, 394.) Cochran's appeals of both of these denials were both dismissed by the Seventh Circuit for failure to pay the docketing fee. (Id. at #403, 405, 413, 414.)

In July 2011, Cochran moved the district court to reopen his § 2255 motion, which the district court recognized as a fourth motion under § 2255 and dismissed. (Id. at #418, 419.) Cochran appealed to the Seventh Circuit, and on January 30, 2012, the Seventh Circuit denied Cochran's appeal from the denial of his certificate of appealability. (Id. at #433.)

Cochran continued to file collateral challenges to his conviction in the Northern District of Indiana and in the Seventh Circuit, prompting the Seventh Circuit to issue a show cause notice that stated:

[b]ecause our prior warning did not deter Cochran, we direct him to show cause why we should not fine him $500 pursuant to Federal Rule of Appellate Procedure 38. We also warn Cochran that cases such as this one are subject to dismissal in the district court as unauthorized collateral attacks. Should he persist in his attacks on his sentence, he risks sanctions and a filing bar under Alexander v. United States, 121 F.3d 312 (7th Cir. 1997).

(See id. at #473.)

On February 8, 2021, the Seventh Circuit denied and dismissed Cochran's application for an order to authorize a successive motion under 28 U.S.C. § 2255. In the application, Cochran presented essentially the same argument as in his § 2241 petition in this Court, asserting “newly discovered evidence.” Cochran v United States, Civ. No. 21-1210 (7th Cir. Feb. 8, 2021). In denying authorization, the Seventh Circuit observed that after his first § 2255 motion and application for certificate of appealability were denied, Cochran unsuccessfully pursued five motions to reopen § 2255 proceedings and made two further requests for a certificate of appealability and that

Cochran now applies for authorization to file a successive collateral attack. He contends that the indictment was invalid because it used the phrase “crack cocaine”-a phrase that does not appear in Schedule II's list of controlled substances. He also says that his original § 2255 proceedings should be reopened because, back in 2009, the district court did not address

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