United States v. Gregg, CRIMINAL NO. 2:16-27-2(SS)

UNITED STATES OF AMERICA, Plaintiff/Respondent, v. GEORGIA MICHELLE GREGG, Defendant/Movant.

CRIMINAL NO. 2:16-27-2(SS)

CIVIL NO. 2:17-191

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS CORPUS CHRISTI DIVISION

April 23, 2019

MEMORANDUM OPINION & ORDER

Defendant/Movant Georgia Michelle Gregg filed a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (D.E. 132), to which the Government responded (D.E. 167) and Movant replied (D.E. 203). The Court subsequently granted Movant leave to file an amended § 2255 motion (D.E. 192), which raised several new claims not contained in her original § 2255 motion. The Government responded to Movant's amended 2255 motion (D.E. 215), and Movant replied (D.E. 219). For the reasons stated herein, Movant's amended § 2255 motion is DENIED.

I. BACKGROUND

In 2013, Movant's sister and codefendant, Jada Gregg-Warren ("Gregg-Warren"), pled guilty to possession with intent to distribute more than 100 grams of heroin and was sentenced to nine months' imprisonment. While Gregg-Warren was in custody, Movant took care of Gregg-Warren's two children, T.R. and J.R. However, the Texas Department of Family and Protective Services (DFPS) removed T.R. and J.R. from Movant's home after she gave birth to a baby that tested positive for methamphetamine. On November 6, 2014, the 407th Judicial District Court of Bexar County, Texas, terminated Gregg- Warren's parental rights to T.R. and J.R. and appointed DFPS as permanent managing conservators. DFPS placed the children under the care of Gregg-Warren's half-brother and his wife, the Davises. However, after the Davises decided not to adopt T.R. and J.R. in 2015, DFPS began searching for new foster parents for the children.

Giving rise to the current criminal case, on August 20, 2015, Movant and Gregg-Warren entered the Davises' home in the middle of the night, took the children, and drove to the U.S.-Mexico border. The two sisters parted ways, and Gregg-Warren and the children got into another car with Gregg-Warren's husband and codefendant, Ivan Francisco Alvarez-Benavente ("Alvarez"). Gregg-Warren and Alvarez took the children to Mexico, where Alvarez's family lived. Between October 18, 2015, and December 9, 2015, the sisters' father and codefendant, Thomas Gregg, wired money to Gregg-Warren and Alvarez in Torreon, Mexico. In December 2015, Mexican Federal Police entered Alvarez's home, arrested Gregg-Warren, and recovered the children. Gregg-Warren and the children were returned to the U.S., and Movant and Alvarez were subsequently arrested in March 2016.

On March 23, 2016, Movant was charged with two counts of kidnapping, in violation of 18 U.S.C. §§ 1201 and 2. On July 6, 2016, she pled guilty to one count of kidnapping pursuant to a plea agreement. The Presentence Investigation Report (PSR, D.E. 105) calculated Movant's base offense level at 32, and 2 levels were added under U.S.S.G. § 2A4.1(b)(4) because the victims were not released within 30 days. After credit for acceptance of responsibility, Movant's total offense level was 31. With a Criminal History Category of I, her advisory Guideline range was 108-135 months' imprisonment. Atsentencing, the Court adopted the PSR without change and sentenced Movant to 108 months, the lowest end of the Guideline range.

Judgment was entered November 3, 2016. Movant did not appeal. She filed a § 2255 motion on May 30, 2017, and an amended § 2255 motion on December 27, 2017.

II. MOVANT'S ALLEGATIONS

Movant's original § 2255 motion raised the following claims:

A. Trial counsel was ineffective because he failed to:

1. prepare and present an aggressive defense;

2. explain Movant's appellate rights;

3. effectively investigate or communicate with Movant concerning her case;

4. fully represent Movant's interests;

5. advocate for appropriate departures; and

6. object to inconsistencies and falsities;

B. Movant should have qualified for "minor role";

C. Movant received a harsher sentence than her more culpable codefendants; and

D. The Court exhibited "prejudice and bias" when it used the conduct of Movant's codefendants to enhance her sentence.

Movant's amended § 2255 motion repeats claims B, C, and D above concerning minor role, sentencing disparity, and judicial prejudice and bias. Her amended § 2255 motion also raises the following claims:

A. Trial counsel was ineffective because he failed to:

1. prepare and file certain motions;

2. file a direct appeal;

3. adequately communicate with Movant; and

4. perform an adequate investigation;

B. The Court lacked subject matter jurisdiction;

C. The Government committed prosecutorial misconduct; andD. Movant's indictment, conviction, sentence and process were "illegal."

III. 28 U.S.C. § 2255

There are four cognizable grounds upon which a federal prisoner may move to vacate, set aside, or correct his sentence: (1) constitutional issues, (2) challenges to the district court's jurisdiction to impose the sentence, (3) challenges to the length of a sentence in excess of the statutory maximum, and (4) claims that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255; United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996). "Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992) (per curiam). In addition, "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982).

IV. STATUTE OF LIMITATIONS

A motion made under § 2255 is subject to a one-year statute of limitations, which, in most cases, begins to run when the judgment becomes final. 28 U.S.C. § 2255(f).² The Fifth Circuit and the Supreme Court have held that a judgment becomes final when theapplicable period for seeking review of a final conviction has expired. Clay v. United States, 537 U.S. 522, 531-32 (2003); United States v. Gamble, 208 F.3d 536, 536-37 (5th Cir. 2000) (per curiam).

Movant's conviction became final on the last day to file a timely notice of appeal, that is, 14 days after the judgment was entered on the docket. FED. R. APP. P. 4(b). Judgment was entered on November 3, 2016. Movant's conviction therefore became final on November 17, 2016. Movant's original § 2255 motion, filed May 30, 2017, was timely. However, she did not file her amended § 2255 motion until December 27, 2017.

Because Movant's amended § 2255 motion was filed outside AEDPA's one-year statute of limitations, the Court must determine whether each claim raised in the amended § 2255 motion "relates back" to her first filing so as to render it timely. See Mayle v. Felix, 545 U.S. 644, 657-59 (2005) (examining the interaction between AEDPA's statute of limitations and the relation-back provision of FED. R. CIV. P. 15(c)). "[R]elation back depends on the existence of a common 'core of operative facts' uniting the original and newly asserted claims." Id. at 659 (citing Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1259 n. 29 (9th Cir.1982); 6A C. WRIGHT, A. MILLER, & M. KANE, FEDERAL PRACTICE AND PROCEDURE § 1497, p. 85 (2d ed.1990)).

Finally, equitable tolling may allow for a late-filed motion, but such exceptions to limitations are rare. Holland v. Florida, 560 U.S. 631, 649 (2010); United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). The party seeking equitable tolling bears the burden of demonstrating that tolling is appropriate. United States v. Petty, 530 F.3d 361, 365 (5th Cir. 2008). To satisfy her burden, Movant must show that (1) she has diligently pursued herrights, and (2) some extraordinary circumstance stood in her way. Holland, 560 U.S. 649; Petty, 530 F.3d at 365. Movant has presented no facts that would suggest that she has diligently pursued her rights or that some extraordinary circumstance prevented her from timely asserting the new claims raised in her amended § 2255 motion.

V. ANALYSIS

A. Ineffective Assistance of Counsel

1. Timeliness of Claims

Although Movant complains of ineffective assistance of counsel (IAC) in both her original and amended motions under § 2255, "[n]ew claims of ineffective assistance of counsel do not automatically relate back to prior ineffective assistance claims simply because they violate the same constitutional provision." United States v. Gonzalez, 592 F.3d 675, 679 (5th Cir. 2009). Rather, the Court must decide whether Movant's amended § 2255 motion presents "'a new ground for relief supported by facts that differ in both time and type from those the original pleading set forth.'" Id. (quoting Mayle v. Felix, 545 U.S. 644, 650 (2005)).

Movant's original § 2255 motion claimed counsel was ineffective because he failed to: prepare and present an aggressive defense; explain Movant's appellate rights; effectively investigate or communicate with Movant concerning her case; fully represent Movant's interests; advocate for appropriate departures; and object to inconsistencies and falsities. Her amended § 2255 motion claims counsel failed to: prepare and file certain motions; prepare and file direct appeals; adequately communicate with Movant; and perform an adequate investigation. The Court finds the IAC claims raised in Movant'samended § 2255 motion related to counsel's pretrial and sentencing-related conduct—failure to file motions, communicate with Movant, or perform an adequate investigation—share a "common 'core of operative facts'" with the claims raised in Movant's original motion, and therefore relate back to her original filing. See Mayle, 545 U.S. at 659. However, Movant's claim in her amended § 2255 motion that counsel was ineffective for failing to file a direct appeal on Movant's behalf does not.

In her original § 2255 motion, Movant claims counsel was ineffective because he "failed to . . . explain appeal rights." D.E. 132, p. 4....