Douglas v. United States

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DONTOREUS DOUGLAS, Movant, v. UNITED STATES OF AMERICA, Respondent.

No. 1:23-cv-01106-STA-jay

United States District Court, W.D. Tennessee, Eastern Division

November 26, 2024

ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

S THOMAS ANDERSON UNITED STATES DISTRICT JUDGE

Dontoreus Douglas has filed a pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 in criminal action number 1:17-cr-10040-STA. (ECF No. 1.) He seeks to overturn his conviction for using a firearm in relation to a crime of violence based on Taylor v. United States, 596 U.S. 845 (2022), which he alleges renders his conviction invalid. The Government has filed a response to the § 2255 motion. (ECF No. 13.) For the reasons set forth below, Defendant's § 2255 motion is DENIED.

Background

Defendant Douglas, a Gangster Disciple officer, was indicted in a superseding indictment by a Grand Jury sitting in the Western District of Tennessee for the following crimes: four counts of attempted murder in aid of racketeering activity (“VICAR attempted murder”), in violation of 18 U.S.C. § 1959(a)(5); four counts of discharging a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c); and one count of possessing a firearm as a felon, in violation of 18 U.S.C. § 922(g)(1). (Sup. Ind., ECF No. 21.) The VICAR attempted murder charges were predicated on a violent shooting that occurred in 2012 which resulted in Defendant's conviction for attempted violations of Tenn. Code Ann. § 39-13-210, the Tennessee statute for second-degree murder.^[1] (Id.)

Defendant was also charged in a separate case (1:16-cr-10061-STA) with drug trafficking in violation of 21 U.S.C. § 841(a)(1) and with possessing a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). He pled guilty to both counts and was sentenced in conjunction with this case on October 18, 2019. Defendant does not challenge his § 924(c) conviction for the 2016 drug trafficking crime.

On April 29, 2019, Defendant pled guilty to the first count of VICAR attempted murder and the corresponding count for using a firearm in relation to a crime of violence in this case. The plea agreement contained a provision stating that he was “knowingly and voluntarily” waiving his right to collaterally challenge his sentence under § 2255, with exceptions for claims relating to prosecutorial misconduct and ineffective assistance of counsel. Subsequently, on October 18, 2019, he was sentenced by this Court to 280 months' imprisonment.

Defendant appealed his convictions. The sole argument he raised on appeal was that he received erroneous advice from his attorney regarding the plea offer, which led to what he describes as an “involuntary plea” because he accepted a plea he would not have otherwise accepted. On September 15, 2020, the Sixth Circuit affirmed Defendant's sentence and found that this court did not commit plain error and that Defendant “knowingly and voluntarily entered his pleas.” (Gov't Exb. 4, ECF No. 13.)

Discussion

Defendant seeks to overturn his § 924(c) conviction, use of a firearm during a crime of violence. His § 2255 motion principally rests on United States v. Taylor, 596 U.S. 845 (2022), a Supreme Court decision which held that attempted Hobbs Act robbery does not qualify as a “crime of violence” under § 924(c). He claims that, under Taylor, the federal definition of attempt cannot be used as a predicate for a crime of violence under § 924(c). He analogizes that, because an attempted Hobbs Act robbery is not a crime of violence, neither is VICAR attempted murder. According to Defendant, an attempt conviction under Tennessee's second-degree murder statute - which served as the basis for his VICAR attempted murder conviction - should not count as a crime of violence because the state statute's definition of attempt matches the federal definition of attempt (which, according to Defendant is not a crime of violence after Taylor) and because the statute contains a type of killing that he says is nonviolent, i.e., killing by way of unlawful drug distribution. He also claims that his plea agreement's “appeal waiver was not knowing or voluntary and is breached because Taylor establishes a fundamental defect and miscarriage of justice” as to his § 924(c) conviction.

The Court agrees with the Government that Defendant's motion fails for several reasons. First, he waived the right to collaterally challenge his conviction when he signed his plea agreement. Second, he procedurally defaulted on the arguments he raises in his motion because he did not previously raise them on appeal. And third, Taylor does not support his position.

“A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: (1) an error of constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact or law that was so fundamental as to render the entire proceeding invalid.” Short v. United States, 471 F.3d 686, 691 (6th Cir. 2006) (internal quotation marks omitted). To establish an error of constitutional magnitude a § 2255 movant “must demonstrate the existence of an error . . . which had a substantial and injurious effect or influence on the guilty plea or the jury's verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). For a defendant “to obtain relief under § 2255 on the basis of non-constitutional error, the record must reflect a fundamental defect in the proceedings that inherently results in a complete miscarriage of justice or an omission inconsistent with the rudimentary demands of fair procedure.” McWhorter v. United States, 156 F.3d 1231 (6th Cir. 1998) (table) (citing Reed v. Farley, 512 U.S. 339, 348 (1994); United States v. Todaro, 982 F.2d 1025, 1028 (6th Cir. 1993) (per curiam)).

As pointed out by the Government, Defendant is not entitled to § 2255 relief because he knowingly and voluntarily waived his right to file this motion. A waiver of the right to bring a § 2255 motion is generally enforceable. See Portis v. United States, 33 F.4th 331, 335 (6th Cir. 2022). “A defendant may waive any right, even a constitutional one, in a plea agreement,” so long as that agreement was entered “knowingly and voluntarily.” Id.; see also Cox v. United States, 695 Fed.Appx. 851, 853 (6th Cir. 2017) (citation omitted). Even “[s]ubsequent developments in the law that would make a right to bring a postconviction challenge more valuable do not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature.” Id. (quotation marks omitted). That is, “a voluntary plea of guilty intelligently made in light of the then applicable law ... does not become vulnerable because later judicial decisions indicate that the plea rested on a faulty premise.” Id. (citing Brady v. United States, 397 U.S. 742, 757 (1970)). Indeed, “waiver[ ] of the right to appeal” “would amount to little if future changes in the law permitted the benefitted party nonetheless to appeal.” Id. (quotation marks and citation omitted).

Here, “it plainly appears from [his] motion” that Defendant is not entitled to relief because his claim is barred by his § 2255 waiver. See Rules Governing Section 2255 Proceedings in the United States District Courts Rule 4(b); see also Pettigrew v. United States, 480 F.2d 681, 684 (6th Cir. 1973). Defendant knowingly and voluntarily entered a plea agreement waiving his right to file his § 2255 motion. Even though he has identified a possibly relevant development in the law making the ability to collaterally attack his conviction more valuable, i.e., Taylor, the waiver in his plea agreement still bars his motion. See Portis, 33 F.4th at 335 (“Subsequent developments in the law that would make a right to bring a postconviction challenge more valuable do not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature.”) Because Defendant's valid plea agreement precludes his request for relief, the Court denies his motion on that basis. See United States v. Griffin, 854 F.3d 911, 914 (6th Cir. 2017) (“It is well settled that a defendant in a criminal case may waive any right, even a constitutional right, by means of a plea agreement.”)

Proceedings under § 2255 are not a substitute for direct appeal. Massaro v. United States, 538 U.S. 500, 504 (2003). Therefore, “the general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice" to excuse the procedural default. Id. Thus, claims that were not previously raised on direct appeal are procedurally defaulted, which means that they cannot be argued for the first time in a § 2255 motion. See, e.g., Gibbs v. United States, 655 F.3d 473, 475 (6th Cir. 2011). However, a defendant may also seek to overcome the default on the ground “that he is ‘actually innocent'” of the crime of conviction. Bousley v. United States, 523 U.S. 614, 622 (1998) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986)). Accordingly, a procedural default can be excused if the defendant can show either (1) cause and prejudice or (2) actual innocence. See Peveler v. United States, 269 F.3d 693, 698 (6th Cir. 2001) (“A procedurally defaulted claim, absent a showing of cause and prejudice or actual innocence, cannot give rise to relief under § 2255.”). Here, Defendant has not argued actual innocence. Thus, the issue is whether he has established cause and prejudice.

Defendant attempts to establish cause by pointing out that it would have been futile for him to challenge the classification of attempted murder as a “crime of violence” under §...