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United States v. Richardson

United States District Court, E.D. Louisiana

July 23, 2018

UNITED STATES OF AMERICA
v.
DONALD RICHARDSON

          ORDER AND REASONS

          SARAH S. VANCE UNITED STATES DISTRICT JUDGE.

         Defendant Donald Richardson moves to vacate his sentence under 28 U.S.C. § 2255.[1] Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. For the following reasons, Richardson's motion is denied.

         I. BACKGROUND

         On February 4, 2011, defendant Donald Richardson was charged with two counts of distributing crack cocaine.[2] See 21 U.S.C. § 841(a)(1), (b)(1)(C). Richardson pleaded not guilty and went to trial. The jury found Richardson not guilty on Count One and guilty on Count Two.[3] In sentencing defendant, the Court found that Richardson had two prior felony convictions for a crime of violence, and therefore applied the career offender sentencing enhancement.[4] The Court sentenced Richardson to 210 months imprisonment.[5]

         Richardson appealed his conviction and sentence.[6] Although the Fifth Circuit appointed counsel to represent Richardson on appeal, Richardson elected to proceed pro se. Richardson asserted the following grounds for relief:

(1) the indictment did not charge him with a federal crime and, therefore, the indictment was not sufficient to confer subject matter jurisdiction on the federal court; (2) the prosecution violated the Fifth Amendment's double jeopardy clause; (3) the proceedings violated his Sixth Amendment rights under the confrontation clause; (4) the district court abused its discretion by giving a jury instruction regarding accomplice testimony; (5) the district court erred in not holding a hearing to investigate possible juror bias; (6) the district court abused its discretion by issuing a modified Allen charge to the jury rather than declaring a mistrial; (7) the evidence was insufficient to support his conviction; and (8) the district court erred in sentencing him as a career offender.

United States v. Richardson, 672 Fed.Appx. 368, 369 (5th Cir. 2016) (per curiam) (footnote omitted). The Fifth Circuit rejected all of Richardson's arguments and affirmed his conviction and sentence. Id. at 372.

         Richardson now moves to vacate his sentence under 28 U.S.C. § 2255 on several grounds. Richardson principally argues that his trial counsel was ineffective for several reasons: (1) failing to object to the second Allen charge;[7] (2) failing to object to the career offender enhancement;[8] (3) failing to object to the Government's expert witness;[9] (4) not requesting a two-level reduction under Amendment 782;[10] (5) not filing an Anders brief;[11] (6) not impeaching a witness at trial;[12] and (7) not moving to dismiss the indictment.[13] Richardson also argues that he should not have been sentenced as a career offender.[14]

         II. LEGAL STANDARD

         Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence “may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). Only a narrow set of claims are cognizable on a Section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is “otherwise subject to collateral attack.” Id. A claim of error that is neither constitutional nor jurisdictional is not cognizable in a Section 2255 proceeding unless the error constitutes “a fundamental defect which inherently results in a complete miscarriage of justice.” United States v. Addonizio, 442 U.S. 178, 185 (1979) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)).

         When a Section 2255 motion is filed, the district court must first conduct a preliminary review. “If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion . . . .” Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. Id., Rules 6-7.

         After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the court must determine whether an evidentiary hearing is warranted. Id., Rule 8. An evidentiary hearing must be held “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). No. evidentiary hearing is required if the prisoner fails to produce any “independent indicia of the likely merit of [his] allegations.” United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

         Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain “structural” errors, relief follows automatically once the error is proved. Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993). For other “trial” errors, the court may grant relief only if the error “had substantial and injurious effect or influence” in determining the outcome of the case. Id. at 637-38 (citation omitted); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht in a Section 2255 proceeding). If the court finds that the prisoner is entitled to relief, it “shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).

         III. DISCUSSION

         A. Ineffective ...


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