United States v. Palmer

105 F.Supp.3d 64

United States of America,

v.Malvin Palmer, Defendant.

Criminal No. 04cr355–08 CKK

Civil Action No. 12–1745

United States District Court, District of Columbia.

Signed May 22, 2015

Malvin Palmer, pro se.

MEMORANDUM OPINION & ORDER

COLLEEN KOLLAR–KOTELLY, UNITED STATES DISTRICT JUDGE

Presently before the Court is Malvin Palmer's [904] Objection to the Court's Recharacterization of Petitioner's Letter as Motion for Reconsideration and his [905] Motion to Reconsider And/Or Alter Judgment. Specifically, Palmer objects to the Court treating his [888] Letter in Response to the Court's Order as a motion for reconsideration pursuant to its [889] Memorandum Opinion & Order of April 16, 2015, and Palmer also requests that the Court reconsider and/or alter its judgment as set for in its [882] Order and accompanying [883] Memorandum Opinion denying Palmer's Motion Under 28 U.S.C. § 2255to Vacate, Set Aside, or Correct Sentence. First, Palmer requests that the Court treat his accompanying Motion to Reconsider And/Or Alter Judgment as a first motion for reconsideration brought pursuant to Federal Rule of Civil Procedure 59. The Court previously treated a letter sent by Palmer in response to an Order as a motion for reconsideration, without Palmer's express consent, because the Court received the letter after it had issued its ruling. The Court shall grant Palmer's request to treat the instant [905] Motion to Reconsider And/Or Alter Judgment as his first motion filed pursuant to Rule 59. However, upon a searching review of Palmer's motion, the relevant legal authorities, and the record as a whole, the Court finds no grounds to disturb its previous rulings as laid out in its [882] Order and accompanying [883] Memorandum Opinion. Accordingly, the Court shall DENY Palmer's [905] Motion to Reconsider And/Or Alter Judgment. In addressing the instant motion, the Court has focused on the narrow issues raised by Palmer in the motion and shall not readdress the other issues discussed in its Memorandum Opinions of March 30, 2015, and April 16, 2015, which the Court INCORPORATES as part of this opinion.

In the instant motion, Palmer requests that the Court reconsider and alter its judgment denying his § 2255motion pursuant to Federal Rule of Civil Procedure 59(e).¹Rule 59(e)permits a party to file “[a] motion to alter or amend a judgment” within “28 days after the entry of the judgment.” Fed.R.Civ.P. 59(e). Motions under Rule 59(e)are “disfavored” and the moving party bears the burden of establishing “extraordinary circumstances” warranting relief from a final judgment. Niedermeier v. Office of Baucus,153 F.Supp.2d 23, 28 (D.D.C.2001). Rule 59(e)motions are “discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice.” Firestone v. Firestone,76 F.3d 1205, 1208 (D.C.Cir.1996)(internal quotation marks omitted). Rule 59(e)does not provide a vehicle “to relitigate old matters, or to raise arguments or present evidence that could have been raised prior to the entry of judgment.” Exxon Shipping Co. v. Baker,554 U.S. 471, 485 n. 5, 128 S.Ct. 2605, 171 L.Ed.2d 570 (2008)(quoting C. Wright & A. Miller, Federal Practice and Procedure § 2810.1 (2d ed.1995)).

In the instant motion, Palmer argues that the Court should reconsider its holding in relation to Palmer's claim that he was rendered ineffective assistance because his counsel failed to object to Counts IV and VIII of the indictment as duplicitous. In its Memorandum Opinion of March 30, 2015, the Court addressed Palmer's contention with relation to two charges of violating 18 U.S.C. § 924(c)upon which Palmer was convicted. SeeMemo. Op. (Mar. 30, 2015), at 7–13, ECF No. [883]. The Court noted that prior to trial it had ruled that there may have been a duplicity issue with both Counts IV and VIII because the relevant provisions of the charged offenses criminalized two separate offenses: (1) using or carryinga firearm during and in relation toan applicable crime of violence, and (2) possessinga firearm in furtherance ofan applicable crime of violence. Id.at 9 (emphasis added). However, the Court permitted the government to proceed with the charges because the government asserted that it would use a special verdict form to ensure that the jury considered the different alternatives separately. Id.After reviewing the language of the indictment, the jury instructions, the verdict form, and the judgment, the Court held that Palmer's argument failed because the record established that even if Palmer's counsel had raised a duplicity challenge, Palmer still would have been convicted of both § 924(c)violations on the grounds that he used or carrieda firearm during and in relationto an applicable crime of violence. Seeid.at 9–13.

Here, Palmer asserts that the Court misconstrued his argument and contends that “[t]he bedrock of [his] first claim, is that whenever the indictment or jury instructions conjoined or intermix[ed] either ‘possession’ or ‘in furtherance of’ (which are both elements that comprise the second § 924(c)offense), with ‘use or carry a firearm during and in relation to (the first § 924(c)offense), or vice versa, the Court is instructing the jury to find the defendant guilty of a crime not criminalized by 18 U.S.C. § 924(c), i.e., a non-existent offense....” Def.'s Mot. to Recons. And/Or Alter Judg., at 2, ECF No. [905]. Palmer cites to two opinions from the United States Court of Appeals for the Sixth Circuit, United States v. Savoires,430 F.3d 376 (6th Cir.2005), and United States v. Castano,543 F.3d 826 (6th Cir.2008), in support of his argument. The Court finds these two cases distinguishable from the instant action and, as a result, shall deny Palmer's request that the Court alter its judgment for the reasons described herein.

In Savoires,the Sixth Circuit reversed the defendant's conviction under § 924(c)because the court found that the indictment was duplicitous, meaning it improperly charged two separate offenses, and the jury instructions permitted the jury to convict the defendant for conduct not criminalized by § 924(c). Savoires,430 F.3d at 379–81. The court noted that a duplicitous charge “is not prejudicial per se,because proper jury instructions can mitigate the risk of jury confusion and alleviate the doubt that would otherwise exist as to whether all members of the jury had found the defendant guilty of the same offense.” Id.at 380. However, in this case, the court found that the jury instructions did not clarify the duplicitous § 924(c)charge and instead combined the elements of the separate offenses. Id.As the court noted, “the ‘in furtherance of’ element of the § 924(c)‘possession’ offense constitutes ‘a higher standard of participation’ than ‘during and in relation to.’ ” Id.Ultimately, the court found that the defendant's substantial rights were prejudiced because the jury could have found him guilty of “possessionof a firearm during and in relation toa drug trafficking crime,” an offense not criminalized under § 924(c). Id.(emphasis added).

In Castano,the Sixth Circuit reversed a defendant's conviction under § 924(c), explaining that “[t]he jury instructions and the verdict form for Castano's § 924(c)count were infected with a number of errors ... [and] those errors impermissibly authorized conviction of a non-existent offense, which in this case was that of possessinga firearm simply duringa drug-trafficking offense.” Castano,543 F.3d at 836(emphasis added). The court went on to explain, “[T]his case paired unindicted conduct (possession) with an erroneous, non-existent standard of participation—simply ‘during,’ rather than the more onerous statutory standard of ‘during and in relation to’ or the still more demanding and correct standard of ‘in furtherance of.’ ” Id.at 837.

Palmer appears to assert that Savoiresand Castanostand for the proposition that it is always impermissible for either an indictment or jury instructions to discuss both the using or carryinga firearm during and in relationto an applicable crime of violence, and possessinga firearm in furtherance ofan applicable crime of violence. Seeid.at 2. However, Palmer misconstrues the holdings in the cited cases. Savoiresand Castanoboth addressed instances in which the jury was permitted to find the defendant guilty of a non-existent offense because the language of the indictment, jury instructions, and verdict form coupled the term “possession” with the less demanding standard of “during and in relation to,” or some portion thereof, rather than the correct standards of “possession” and “in furtherance of,” or “use or carry” and “during an in relation to.”

The instant action is distinguishable from these cases because it is clear from the record the jury found Palmer guilty of two counts of § 924(c)for using and carryinga firearm during and in relation toa crime of violence, not for possession of a firearm in furtherance of a crime of violence, or from some other impermissible combination of the language of § 924(c)as was the issue in the Sixth Circuit cases. SeeMemo. Op. (Mar. 30, 2015), at 10–13. As this Court explained in its Memorandum Opinion, “ ‘The overall vice of duplicity is that the jury cannot in a general verdict render its finding on each offense, making it difficult to determine whether a conviction rests on only one of the offenses or on both.’ ” Id.at 8 (quoting United States v. Washington,127 F.3d 510, 513 (6th Cir.1997)). Here, the Court reviewed the language of the indictment, the jury instructions, the verdict form, and its judgment and found that the jury convicted Palmer of Counts IV and VIII for using and carrying a firearm during and in relation to a crime of violence, an offense that is criminalized by § 924(c). Id.at 10–13. As such, the facts of the instant action are distinguishable from those in Savoiresand Cas...