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White v. United States

United States District Court, Northern District of Alabama, Southern Division

December 1, 2014

GARY L. WHITE, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. No. 7:07-cr-00448-LSC-HGD-1

MEMORANDUM OF OPINION

L. Scott Coogler, United States District Judge

Petitioner, Gary L. White (“White”), has filed a Motion to Vacate, Set Aside or Correct a Sentence pursuant to 28 U.S.C. § 2255. He challenges the validity of his 2008 convictions and 2010 sentences for conspiracy and federal funds bribery. For the following reasons, White’s § 2255 motion is due to be denied.

I. FACTUAL AND PROCEDURAL BACKGROUND

White was indicted by a grand jury in the United States District Court for the Northern District of Alabama, Southern Division, on October 31, 2007, on two counts of conspiracy to commit bribery in violation of 18 U.S.C. § 371 (Counts 1 and 10) and nine counts of federal funds bribery in violation of 18 U.S.C. § 666(a) and (b) (Counts 2-9 and 11). All of these counts were based on allegations that White, while serving as a Jefferson County Commissioner, accepted bribes from sewer companies that had ongoing and prospective contracts with Jefferson County. United States District Judge U.W. Clemon was assigned to the case. On November 2, 2007, White entered a plea of not guilty to all counts in the indictment.

On November 20, 2007, White moved for a change of venue, asking the court to move the trial from the Southern Division of the Northern District of Alabama to the Western Division of the same district. White argued that potential jurors in the Southern Division had an actual or perceived financial interest in the case and that an unbiased jury could not be seated in the Southern Division because the venire consisted mainly of Jefferson County residents, who would likely blame their increased sewer rate on him. Instead of transferring the case to the Western Division, the court, sua sponte, moved the case to the United States District Court for the Middle District of Alabama.

A superseding indictment, adding a twelfth count for criminal forfeiture under 18 U.S.C. § 982(a)(1)(C) and 28 U.S.C. § 2461(c), was issued on December 27, 2007. White again entered a not guilty plea on January 4, 2008.

White’s criminal trial began on January 8, 2008, in Montgomery, before Judge Clemon. After the conclusion of the Government’s case, White moved for a judgment of acquittal on Counts 1-11. The court granted the motion as to Counts 10 and 11 and dismissed those counts on January 10, 2008. White was found guilty of Counts 1-9 on January 10, 2008.

Shortly after the verdict, White moved to vacate the judgment on the ground that venue was improper, referencing his right to be tried within the district where the crime was alleged to have been committed. In an order filed February 8, 2008, the court granted White’s motion to vacate the judgment, ordered a new trial, and reassigned the case to the undersigned judge in the Western Division of the United States District Court for the Northern District of Alabama.

On February 12, 2008, the Government filed an interlocutory appeal with the Eleventh Circuit Court of Appeals as to Judge Clemon’s order vacating the judgment and granting a new trial in a different division. The Eleventh Circuit issued an order staying the appeal on October 17, 2008, after White’s counsel withdrew from representation and did not file a brief. On December 21, 2009, the Eleventh Circuit reversed the district court’s order vacating White’s conviction and transferring the case to a different district, and remanded the case to the district court for sentencing. United States v. White, 590 F.3d 1210, 1213-15 (11th Cir. 2009).

On July 29, 2010, this Court sentenced White to 60 months imprisonment on Count 1 and 120 months imprisonment on each of Counts 2-9, to be served concurrently, for a total sentence of 120 months imprisonment. White was also sentenced to 24 months supervised release; ordered to pay restitution in the amount of $22, 000; and ordered forfeiture of the same amount. Judgment was entered by this Court on August 3, 2010.

White appealed his conviction and sentence on August 5, 2010. The Eleventh Circuit affirmed both on December 29, 2011. United States v. White, 663 F.3d 1207 (11th Cir. 2011). White’s petition for certiorari was denied by the United States Supreme Court on November 26, 2012. White v. United States, 133 S.Ct. 646 (2012).

On November 30, 2012, White filed two pro se motions in his criminal case, one styled “motion for recusal” and one styled “motion to extend time.” (Docs. 151 and 152 in 7:07-cr-00448-LSC-HGD-1.) In his motion for recusal, White averred that he intended to “assert and expose wrongful and improper actions by this Court” and “impropriety of the Court’s motives, interests, actions and every aspect of the Court’s handling of [his] case.” He alleged generally that he would be filing civil actions in which the undersigned is expected to be a primary named defendant, after which recusal would be necessary. However, White had not filed any such action at that time. In his motion to extend time, White asked that the Court extend the time for him to raise “any and all issues, motions, pleadings and other actions, ” including motions pursuant to 28 U.S.C. § 2241 or § 2255. He stated that he intended to file a petition for rehearing from the Supreme Court’s recent denial of his petition for certiorari, and he asked that he be given one year from the time the Supreme Court issues its final ruling on his petition for rehearing. This Court denied those motions on December 6, 2012. (Doc. 153 in 7:07-cr-00448-LSC-HGD-1.) In the order, this Court advised White that by statute, he has one year following the date on which his judgment of conviction becomes final in which to file a motion for collateral relief pursuant to 28 U.S.C. § 2255, citing 28 U.S.C. § 2255(f).

Nearly a year later, on November 27, 2013, White filed another pro se “motion to extend time” seeking an extension of 180 days “for raising any and all issues, motions, pleadings and other actions available to and/or by Gary White, including but not limited to 2255 and 2241 actions.” (Doc. 154 in 7:07-cr-00448-LSC-HGD-1.) In the motion, White acknowledged that his right to move for collateral relief would expire “soon, ” but that he has been prevented from preparing his collateral attack due to abuse by prison personnel, transfers among prisons, and denial of access to legal materials. The Government responded in opposition to the motion on December 3, 2013. (Doc. 155 in 7:07-cr-00448-LSC-HGD-1.) This Court denied the motion for additional time on December 10, 2013, advising White that the court could not extend the time for a defendant to file a post-conviction challenge to a proceeding but that if White filed a § 2255 motion, he could argue therein that equitable tolling applied based on the allegations set out in his motion. (Doc. 156 in 7:07-cr-00448-LSC-HGD-1.)

White filed the instant “Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside and/or Correct Sentence and for Other Post-Conviction Relief” on June 26, 2014. (Doc. 155 in 7:07-cr-00448-LSC-HGD-1; Doc. 1 in 2:14-cv-8039-LSC.) White asserts several grounds for relief in a conclusory fashion, as discussed infra, and again seeks additional time “for leave to file after the statutory filing deadline, for broad leave to amend all his pleadings, and to stay proceedings to permit him to prepare and file his motion for disqualification of the judge assigned to his case.” The Government responded to the motion, arguing that it should be dismissed as untimely or in the alternative because it fails to state a claim upon which relief may be granted. The Court issued an order to White, notifying him that the Court deemed his motion ripe for summary disposition and of his right to file affidavits or other materials to show why the motion should not be summarily denied on the basis of the response by the Government. The only filing White has submitted in response to the ...


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