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Bullette v. United States

United States District Court, D. Maryland

August 9, 2018




         Now pending before the Court are Petitioner's (1) Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence (“Motion to Vacate”) (ECF No. 261), (2) Motion to Amend the Filed 28 U.S.C. § 2255 Petition Pursuant to Federal Rule of Civil Procedure Rule 15/Rule 12 Rules Governing Section 2255 Proceedings (“Motion to Amend”) (ECF No. 268), (3) Motion for Summary Judgment and Dismissal of the Government's Original and/or Superseding Indictment (“Motion for Summary Judgment”) (ECF No. 281), (4) Motion to Compel Production of Documents (“Motion to Compel”) (ECF No. 288), (5) Motion to Dismiss the Indictment (“Motion to Dismiss”) (ECF No. 289), and (6) Second Motion Seeking Leave to Amend (“Second Motion to Amend”) (ECF No. 290). For the reasons discussed below, the Court will deny all of the aforementioned Motions.

         I. Background Facts

         On December 2, 2013, the grand jury returned a Superseding Indictment, charging Petitioner with conspiracy to distribute and possess with intent to distribute 1, 000 grams or more of phencyclidine (“PCP”), a Schedule II substance, in violation of 21 U.S.C. § 846. ECF No. 17. Petitioner was arrested on or about December 6, 2013. ECF No. 276 at 1. Petitioner had his initial appearance on January 30, 2014. ECF No. 44. On February 6, 2014, the Court appointed Marc Hall (“Mr. Hall”) as defense counsel for Petitioner. ECF No. 50.

         The Government asserts through its Response in Opposition to Petitioner's Motion to Vacate and Motion to Amend (“Response”) and through an attached Affidavit of Mr. Hall, that on February 20, 2014, Mr. Hall and Petitioner attended a reverse proffer session at the United States Attorney's Office in Greenbelt, Maryland, at which the Government summarized its evidence against Petitioner and reviewed with him his criminal record, which included two or more prior felony drug offenses, and discussed the possibility of an enhanced sentence pursuant to 21 U.S.C. § 851. ECF No. 276 (citing ECF No. 277, Attach. 1, Ex. 1 ¶ 3). At his arraignment on March 11, 2014, Petitioner pleaded not guilty to the charge against him. ECF No. 54.

         Subsequent to his arraignment, Petitioner, through counsel, filed (1) a Motion to Adopt and Join in Motions of Codefendants (ECF No. 58), which in effect joined Petitioner in co-defendant Gary Antonio Green's motion to suppress evidence (ECF No. 15), (2) a separate Motion to Suppress Evidence (“Motion to Suppress”), challenging the warrant authorizing a search of Petitioner's residence in California as well as an allegedly warrantless search of a drug lab and Petitioner's vehicle in Palmdale, California (ECF No. 59), and (3) a Motion for 404(b) Disclosure (“Motion for Disclosure”), requesting the Government to disclose of any evidence of other crimes, wrongs, or acts the Government intended to introduce at trial (ECF No. 60). A hearing on those motions was held on August 4, 2014. ECF No. 72. For the reasons stated at the hearing, the Court, by order on August 5, 2014, denied as moot Green's motion to suppress, denied Petitioner's Motion to Suppress, and denied as moot Petitioner's Motion for Disclosure. ECF No. 76.

         The next day, August 6, 2014, the Government sent Petitioner's counsel an email with notice that the Government would file notices of Petitioner's five prior drug felony convictions to seek an enhanced sentence pursuant 21 U.S.C. § 851 if the parties did not start actively engaging in plea negotiations. ECF No. 276 at 2 (citing Attach 1, Ex. 2 at 3). Petitioner's counsel responded that he would like to receive a plea offer to review with Petitioner, which the Government sent the next day. Id. Mr. Hall attests that he visited Petitioner on August 13, 2014 and reviewed with him both the plea offer and the draft § 851 notice and its sentencing implications. Id. Petitioner rejected the plea offer. Id.

         On September 8, 2014, the Government filed a Notice/Information Pursuant to 21 U.S.C. § 851 of Government's Intent to Seek Enhanced Penalties Under 21 U.S.C. § 841(b)(1)(A) (“§ 851 Notice”), informing the parties of the Government's intention to seek enhanced penalties based on Petitioner's conviction of five prior drug felonies and the quantity of PCP listed in the Superseding Indictment. ECF No. 87. Before trial, Petitioner's counsel and the Government filed joint voir dire and jury instructions. ECF Nos. 95, 96. The Court proposed changes to the jury instructions, ECF No. 96, which were finalized on October 14, 2014, ECF No. 106. Petitioner's case then proceeded to trial on October 9 through October 15, 2014. ECF Nos. 103, 105, 108, 109. On October 15, 2018, the jury returned a verdict of guilty. ECF No. 114.

         Before sentencing, Petitioner's counsel filed an Opposition to the Government's § 851 Notice (“Opposition to § 851 Notice”). ECF No. 117. Also before sentencing, an attorney inquiry hearing was undertaken regarding Mr. Hall, who ultimately withdrew as counsel for Petitioner. ECF Nos. 124, 126. Michael Lawlor (“Mr. Lawlor”) was appointed to represent Petitioner during sentencing, and then again on appeal. ECF Nos. 127, 193.

         On January 7, 2015, Petitioner filed a pro se Motion for New Trial, asserting that after the trial he learned from a co-defendant that a key witness against him “committed perjury and falsely testified” during his trial. ECF No. 149. In light of this new evidence, and because his counsel allegedly failed to follow up on this exculpatory evidence, Petitioner argued he should receive a new trial. Id. At sentencing, Petitioner consented to withdrawing his Motion for New Trial. ECF No. 276 at 3 (citing Tr. of Sentencing Hr'g 7:14-17, ECF No. 200).

         On June 15, 2015, the Court sentenced Petitioner to life imprisonment, the mandatory minimum resulting from the enhanced sentence under 21 U.S.C. § 841(b)(1)(A) pursuant to 21 U.S.C. § 851. ECF No. 189. At the sentencing hearing, Mr. Lawlor challenged the sentence enhancement, arguing that there was insufficient evidence of the PCP weight at trial, renewed the challenges to the validity of the search of Petitioner's vehicle, and argued that application of the gun enhancement was improper. ECF No. 276 at 3 (citing ECF No. 200 at 5:7-21). The Court asked Petitioner's counsel whether he wished to be heard on the issue of whether the Government gave him sufficient notice under § 851, but counsel decided to rest on the arguments made in his predecessor's Opposition to § 851 Notice and declined to add anything. Id. at 3-4 (citing ECF No. 200 at 7:25-8:1). The Court ultimately found that the Government provided Petitioner with sufficient notice under § 851. Id. at 4 (citing ECF No. 200 at 11:14-17).

         Petitioner appealed the judgment against him to the Fourth Circuit. ECF No. 187. His appeal argued that the Court erred in (1) admitting evidence of Petitioner's conduct in California, including the evidence found during the search of Petitioner's vehicle, and (2) applying a mandatory minimum life imprisonment sentence without first submitting Petitioner's prior convictions to a jury for a finding of fact. Id.; Br. of Appellant, United States v. Bullette, No. 15-4408 (Dec. 28, 2015). On April 20, 2017, the Fourth Circuit affirmed the Court's denial of Petitioner's Motion to Suppress Petitioner's California-based conduct. United States v. Bullette, 854 F.3d 261, 265 (4th Cir. 2017). The Fourth Circuit also found that Petitioner had conceded that the Government was not required to submit to a jury his prior convictions for a finding of fact beyond a reasonable doubt before subjecting Petitioner to a mandatory minimum sentence. Id. at 264 n.2.

         On November 6, 2017, Petitioner timely filed his Motion to Vacate. ECF No. 261. On November 29, 2017, the Court issued an order directing the Government to respond. ECF No. 265. Before the Government responded, Petitioner filed his supplemental Motion to Amend on December 28, 2017. ECF No. 268. The Government ultimately responded, after a number of permitted time extensions by the Court, on March 9, 2018. ECF No. 276. On April 9, 2018, Petitioner filed his Motion for Summary Judgment. ECF No. 281. According to Petitioner's correspondence with the Court on June 18, 2018, Petitioner had filed his Motion to Compel, ECF No. 288, in May 2018, see ECF No. 286, although the motion was not docketed until June 18, 2018. The Court received Petitioner's Motion to Dismiss, ECF No. 289, and Second Motion to Amend, ECF No. 290, also on June 18, 2018.

         Petitioner also filed a correspondence titled Petitioner's Pleading of Ex Parte Violation Between United States Prosecutor and District Court (“Pleading of Ex Parte Violation”), asserting that the Government allegedly had never served on Petitioner a copy of the Government's Response, in violation of the rule against ex parte communications. ECF No. 287. This is belied by the certificate of service appended to the Government's Response. ECF No. 276 at 19. Most recently, Petitioner filed a petition for writ of mandamus in the Fourth Circuit, asking for the Fourth Circuit to direct the undersigned either to compel the United States Attorney to serve Petitioner with a complete and true copy of ECF No. 276 along with an admission that the document had not been timely served on Petitioner or to recuse himself. In re Raymond Bullette, III, No. 18-1801 (4th Cir. July 16, 2018), ECF No. 2. The Court will now address and dispose of all of the pending motions.

         II. Analysis

         The Court will first address Petitioner's Motion to Vacate and Motion to Amend, and then it will dispose of the remaining motions.

         A. Motion to Vacate and Motion to Amend

         In his Motion to Vacate and supplemental Motion to Amend, [1] Petitioner asserts twelve grounds for vacating his sentence, some of which are interrelated and substantively repetitive: (1) the Court erred in failing to explain to the jury for which purpose it may consider evidence of Petitioner's California-based conduct; (2) the Court erred in instructing the jury on definitions related to “manufacturing” PCP when those allegations were not included in the Superseding Indictment; (3) the Court erred in permitting the jury to hear evidence of multiple conspiracies even though Petitioner was charged with only one; (4) the Court erred in admitting evidence of the California manufacturing operation; (5) the Government failed to give Petitioner adequate notice of its intent to use Rule 404(b) evidence; (6) trial counsel provided ineffective assistance; (7) Petitioner was innocent of and did not have a chance to defend himself against the California manufacturing conduct; (8) the Court erred by considering substantially increased drug quantities and evidence of a gun, which were based on the California conduct; (9) appellate counsel provided ineffective assistance of counsel; (10) the Court erred in admitting evidence of the California-based conduct, which impermissibly joined offenses committed in two different jurisdictions; (11) all of the preceding grounds had the cumulative effect of violating Petitioner's due process rights; and (12) trial counsel failed to inform Petitioner of the Government's advance notice to seek enhanced penalties under § 851. ECF No. 261 at 5b-5c; ECF No. 268 at 2.

         For ease of analysis, the Court will follow the Government's example and address the above grounds in three groups: (1) the grounds dealing with evidence of Petitioner's California-based conduct (Grounds 1, 2, 3, 4, 5, 7, 8, 10); (2) grounds dealing with ineffective assistance of counsel (Grounds 6, 9, 12); and (3) grounds dealing with the cumulative effect of the allegations (Ground 11).

         To prevail on a § 2255 motion, a petitioner must prove by a preponderance of the evidence that “[his] 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 collateral attack . . . .” 28 U.S.C. § 2255 (2012); Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). A claim which does not challenge the constitutionality of a sentence or the court's jurisdiction is cognizable in a § 2255 motion only if the alleged violation constitutes a “miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979).

         Collateral attack is not a substitute for direct appeal; therefore the failure to raise certain issues on direct appeal may render them procedurally defaulted on habeas review. United States v. Frady, 456 U.S. 152, 165 (1982). Issues fully litigated on direct appeal cannot be raised on collateral attack. Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976). Fourth Amendment exclusionary rule claims, specifically, are cognizable only if there has been no opportunity for full and fair litigation of the claim. Stone v. Powell, 428 U.S. 465, 494-95 (1976). Similarly, a petitioner cannot challenge a sentencing enhancement that is based on a facially-valid prior conviction. Custis v. United States, 511 U.S. 485, 496-97 (1994). If the § 2255 motion, along with the files and records of the case, “conclusively show that [the petitioner] is entitled to no relief, ” a hearing ...

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