Whitson v. United States

MEMORANDUM OPINION

ELI RICHARDSON UNITED STATES DISTRICT JUDGE.

Petitioner Nickless R. Whitson, an inmate at the United States Penitentiary Pollock, has filed a pro se petition pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct an allegedly illegal sentence imposed by this Court. (Doc. No. 1, “Petition”). Thereafter, the Court appointed counsel for Petitioner, and Petitioner's counsel filed an amended petition, which adopted all arguments made in the original Petition, and supplemented Petitioner's arguments as to one of his asserted grounds for relief. (Doc. No. 10, “Amended Petition”). The Government has responded in opposition to both petitions (Doc. No. 12, “Response”), and Petitioner, through counsel, has filed a reply (Doc. No. 18, “Reply”). For the following reasons, the Petition and Amended Petition are DENIED in part and GRANTED in part.

BACKGROUND

I. Procedural Background

On January 19, 2012, a federal grand jury in the Middle District of Tennessee charged Petitioner (in case no. 3:12-cr-00013) and numerous co-defendants (including Manila

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Vichitvongsa) in an eight-count indictment (Doc. No. 12-1, “Indictment”).^[1] The Indictment was based largely, though not exclusively, on two different armed robberies (the “Lavergne robbery” and “Elmwood robbery”). Specifically, Petitioner was charged: in Counts One and Five with conspiracy to commit Hobbs Act robbery (namely, the Lavergne robbery and the Elmwood robbery, respectively) in violation of 18 U.S.C. §§ 1951 and 2; in Counts Two and Six with using, carrying, and possessing a firearm in furtherance of a crime of violence (namely the Hobbs Act robberies charged respectively in Counts One and Five), in violation of 18 U.S.C. § 924(c); in Count Three with conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846; in Counts Four and Eight with using, carrying, and brandishing a firearm during and in relation to a federal drug trafficking crime (namely, the drug conspiracies charged respectively in Counts Three and Seven), in violation of 18 U.S.C. § 924(c); and in Count Seven with conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846. Petitioner proceeded to trial and on November 18, 2014 was found guilty by a jury on all eight counts. (Doc. No. 12-4). The then-assigned district judge, the Honorable Todd Campbell, sentenced Petitioner to 1, 252 months. (Doc. No. 10-2).

Petitioner appealed his conviction and raised five separate challenges to his conviction. See United States v. Whitson, 664 Fed.Appx. 503 (6th Cir. 2016). The Sixth Circuit rejected all of Petitioner's challenges except for one: whether Petitioner's convictions on the charged Section 924(c) counts constituted a violation of the double jeopardy clause of the Fifth Amendment. Id. At 507. The Sixth Circuit explained:

The government and Whitson agree that two of his firearms convictions violated the Double Jeopardy Clause in light of [United States v. Vichitvongsa, 819 F.3d 260, 266-70 (6th Cir. 2016]. The jury convicted Whitson on four firearm charges, two for the LaVergne robbery and drug conspiracies and two for the Elmwood robbery and drug conspiracies. But because Whitson “chose to use a

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firearm once during each robbery to simultaneously further two conspiracies, ” the district court should have “dismiss[ed] one of defendant's § 924(c) counts for each robbery” and drug conspiracy set Vichitvongsa, 819 F.3d at 268, 270. Consistent with the government's confession of error, we vacate two of Whitson's § 924(c) convictions, either count 2 or 4 (the LaVergne set) plus either count 6 or 8 (the Elmwood set). “[T]he proper penalties are the same given § 924(c)'s mandatory term (regardless of which two of the four counts are vacated), ” making it appropriate to “remand to the district court for the limited purpose of entering a revised judgment and sentence consistent with this opinion.” Id. at 270; 18 U.S.C. § 924(c)(1)(A)(1), (c)(1)(C)(1)

For these reasons, we reverse and vacate two of Whitson's § 924(c) convictions, remand for entry of a revised judgment and sentence, and affirm the rest of the district court's judgment

Id. at 507. Thus, the court issued a limited remand, instructing the district court to dismiss either Counts Two or Four and to dismiss either counts Six or Eight, and also enter a revised sentence and judgment accordingly. On February 24, 2017, the Sixth Circuit issued its mandate on this appeal. (Doc. No. 12-6). The United States Supreme Court denied Petitioner's writ of certiorari on May 30, 2017. (Doc. No. 12-8).

On remand for entry of an amended judgment, the Court, consistent with the recommendation and concurrence of the parties, (No. 3:12-cr-00013, Doc. Nos. 1047, 1048), vacated Counts Four and Eight of the Indictment, charging respective violations Section 924(c) which were based upon the underlying drug conspiracies charged in Counts Three and Seven. (No. 3:12-cr-00013, Doc. No. 1047). On October 5, 2017, the Court entered the Amended Judgment whereby Defendant was sentenced to 652 months' imprisonment followed by five years of supervised release. (Doc. No. 10-3). Defendant did not appeal the Amended Judgment. On October 16, 2017, the Court entered the Second Amended Judgment, which did not amend the sentence imposed in the Amended Judgment but instead merely corrected a clerical error. (Doc. No. 12-9).

II. The Instant Petitions

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On September 4, 2018, Petitioner filed his pro se Petition (Doc. No. 1), supported by a supporting memorandum (Doc. No. 2, “Memorandum”), asserting that his convictions and sentences should be vacated on the following grounds:

(1) Petitioner's convictions on Counts One and Five of the Indictment for conspiracy to violate the Hobbs Act, 18 U.S.C. § 1951 and § 2, violated the Ex Post Facto Clause of the United States Constitution as Taylor v United States, 136 S.Ct. 2074 (2016) was used to decide his direct appeal. (Doc. No. 1 at 4, “Ground One”);

(2) Petitioner's convictions on Counts Two and Six violate the Due Process Clause of the United States Constitution as such convictions rest on the unconstitutionally vague residual clause of 18 U.S.C. § 924(c). (Doc. No. 1 at ¶ 9(f); Doc. No. 10 at 1-9, “Ground Two”);

(3) Petitioner's convictions on Counts Three (conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846) and Seven of the Indictment (conspiracy to distribute marijuana, in violation of 21 U.S.C. § 846) should be vacated as there was insufficient evidence of the alleged conspiracies. (Doc. No. 1 at 7, “Ground Three”);

(4) All counts of conviction should be vacated as the Government withheld agreed upon Brady, Jencks, and Giglio material and falsified search warrant affidavit and warrants and presented falsified evidence and perjured testimony to obtain probable cause leading to the search of Petitioner's residence. (Doc. No. 1 at 8, “Ground Four”);

(5) The district court erred in denying Petitioner's motion to suppress and for a Franks hearing, and his appellate counsel failed to raise this issue on direct appeal on his direct appeal. (Doc. No. 1 at 9, “Ground Five”);

(6) The district court erred in denying Petitioner's motion to dismiss Counts Two, Four, Six, and Eight of the Indictment, as these counts were duplicitous and failed to clearly establish notice of the criminal charges, and his appellate counsel failed to raise this issue on direct appeal on his direct appeal. (Doc. No. 1 at 10, “Ground Six”);

(7) Petitioner should be resentenced in light of “Dean v. United States, No. 14-10069 (April 13, 2017), ” and his sentence is unreasonable and violates the factors set forth in 18 U.S.C. § 3661 and 18 U.S.C. § 3553. (Doc. No. 1 at 10, “Ground Seven”);

(8) The district court erred when it allowed the prosecutor to cross-examine Petitioner during allocution in violation of his Fifth Amendment right to due

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process, and his appellate counsel failed to raise this issue on direct appeal on his direct appeal. (Doc. No. 1 at 10, “Ground Eight”);

(9) Petitioner received ineffective assistance of counsel during trial and post-conviction proceedings in violation of his Sixth Amendment right. (Doc. No. 1 at 10, “Ground Nine”).

On October 15, 2018, Petitioner, through counsel, filed an Amended Petition which adopted all arguments made in the original Petition, and supplemented Petitioner's argument as to Ground Two. (Doc. No. 10).

The Government filed the Response arguing that Petitioner's Petition should be denied because it is barred by the applicable statute of limitations. (Doc. No. 12 at 7-9).^[2] Alternatively, the Government argues that the Petition should be denied because none of his proffered grounds for relief are meritorious. (Id. at 9-33). Petitioner, through counsel, filed a reply to the Government's response. (Doc. No. 18, “Reply”). After the Supreme Court's decision in United States v. Davis, 139 S.Ct. 2319 (2019), the Government filed a notice with the Court conceding that relief was warranted under Ground Two. (Doc. No. 27). The Court will review each asserted ground for relief in turn.

SECTION 2255 PROCEEDINGS

28 U.S.C. § 2255 provides a statutory mechanism for challenging the imposition of a federal sentence:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to