Jackson v. United States

          REPORT AND RECOMMENDATION

          SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE

         Pending before the Court is Petitioner Jesse Jackson's “Writ of Error Coram Nobis” and supplement thereto. (Docs. 216, 220). Also pending before the Court are the Government's Motion to Dismiss and Jackson's response in opposition. (Docs. 222, 223). This action has been referred to the undersigned Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Rule 8(b) of the Rules Governing Section 2255 Cases and is now ready for consideration.

         The undersigned has conducted a careful review of the record and finds that no evidentiary hearing is required to resolve this case. See Kelley v. Sec'y for Dep't of Corr., 377 F.3d 1317 (11th Cir. 2004). Following a complete review of this action, the undersigned recommends that the Government's Motion to Dismiss be GRANTED, and that this action be DISMISSED. The undersigned further recommends that in the event Jackson files a certificate of appealability and seeks to appeal in forma pauperis, said requests should be DENIED.

         I. BACKGROUND

         Jackson was charged in a federal indictment with conspiracy to possess with the intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (count one); conspiracy to possess with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (count two); possession with the intent to distribute crack cocaine, in violation of 21 U.S.C. § 841(a)(1) (counts three and four); using and carrying a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1) (count five); and possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a)(1) (count six). (Doc. 1-3 at 1-4). On July 12, 2007, Jackson's appointed counsel advised the Court of Jackson's desire to enter into a counseled plea agreement. (Doc. 47). In the plea agreement, Jackson agreed to plead guilty to counts two (conspiracy to possess with the intent to distribute crack cocaine) and five (using and carrying a firearm in furtherance of a drug trafficking crime) of the indictment. (Doc. 59 at 1-2).

         As part of the plea agreement, Jackson agreed to waive his right to challenge, in a direct appeal or a collateral attack, any sentence imposed in his case or the manner in which it was determined, except that Jackson reserved his right to challenge any sentence imposed in excess of the statutory maximum, any sentence which constituted an upward departure from the guideline range, and any claim of ineffective assistance of counsel. (Id. at 10). In return, the Government agreed that it would not bring any additional charges against Jackson related to the facts underlying the indictment and that it would move to dismiss the remaining counts against Jackson. (Id. at 5). The Government also agreed that if, in its sole discretion, Jackson provided substantial assistance in the investigation or prosecution of another criminal offense, the Government would move for a downward departure in accordance with U.S.S.G. § 5K1.1 or would file a Rule 35 motion pursuant to the Federal Rules of Criminal Procedure. (Id. at 7). The Government further agreed that if Jackson's cooperation did not amount to substantial assistance, as determined solely by the Government, the Government would recommend that Jackson be sentenced at the low end of the sentencing guidelines range. (Id. at 8).

         On July 19, 2007, Jackson entered a plea of guilty to counts two and five of the indictment. (Docs. 65, 190). Jackson was sentenced, on December 18, 2007, to two-hundred and forty (240) months' imprisonment on count two (drug conspiracy), to be followed by a consecutive term of sixty (60) months' imprisonment on count five (possessing a firearm in furtherance of a drug trafficking crime). (Doc. 200 at 6). On January 8, 2008, the Court entered a judgment consistent with the pronounced sentence. (Doc. 101).

         On March 10, 2009, Jackson filed a pro se Motion to Enforce Plea Agreement. (Doc. 130). Jackson asserted that “[o]n December 18, [20]07, the D.A.s^[1] office and the courts agree to give me a 5K1 for the substantial amount of assistance I provided to the federal agent[, ]” and asked the Court to enforce the plea agreement between Jackson and the United States Attorney's Office. (Id. at 1). In its response in opposition, the Government argued that the plea agreement plainly reserved to it sole discretion to determine whether Jackson's cooperation amounted to substantial assistance and merited a motion for downward departure from the applicable sentencing guideline range. (Doc. 132 at 1-2). The Court denied Jackson's motion for the reasons set forth in the Government's response. (Doc. 133).

         On April 29, 2009, Jackson's attorney filed a Motion to Reconsider the Court's Order denying Jackson's pro se Motion to Enforce Plea Agreement. (Doc. 134). In the motion, Jackson's attorney stated that he had received a letter from Jackson asking for help in this matter and had also received a telephone call from “the investigator responsible for [Jackson's] arrest in the first instance and also responsible for assuring [Jackson] his cooperation would be rewarded.” (Id. at 2). In response, counsel for the Government averred that it would “continue to investigate the timing of [Jackson's] pre-indictment activity to determine whether a Rule 35 is appropriate, ” but nevertheless maintained that the Court had no authority to intervene in its decision as to whether to file a substantial assistance motion absent an allegation of unconstitutional motive. (Doc. 138 at 2). In denying Jackson's Motion to Reconsider, the Court found that Jackson had failed to demonstrate that the Government manifested a “constitutionally impermissible motivation” in refusing to move for a reduction in his sentence. (Doc. 139).

         On October 28, 2011, Jackson filed a pro se “Motion for Reduction of Sentence Pursuant to the Fair Sentence Act and the Retroactivity Amendment 750 U.S.C. § 3582(c)(2) & 3553(a)[.]” (Doc. 164). Jackson's motion was denied on the ground that the Fair Sentencing Act's reduction or elimination of the statutory minimum sentence with regard to certain quantities of crack cocaine did not apply to defendants, such as Jackson, whose criminal conduct occurred before August 2010. (Doc. 167 at 1). Jackson then filed a motion for reconsideration (Doc. 173), which was denied on December 17, 2012. (Doc. 174).

         On October 3, 2014, Jackson initiated a pro se appeal from the sentence imposed by the Court.^[2] (Doc. 178). Subsequent thereto, Jackson's counsel filed a brief pursuant to Anders v. State of Cal., 386 U.S. 738 (1967), asserting the lack of arguable meritorious issues of on appeal and requesting permission to withdraw. See No. Merit Brief Filed Pursuant to Anders v. Cal., United States v. Jackson, No. 14-14732 (11th Cir. Mar. 3, 2015), 2015 WL 1138619. In an Order dated July 7, 2015, the Eleventh Circuit held that an examination of the entire record revealed no arguable issues of merit; thus, Jackson's convictions and sentences were affirmed, and his defense counsel's request to withdraw was granted. (Doc. 210 at 2).

         On July 14, 2015, Jackson filed another pro se Motion for Reduction of Sentence, this time on the basis of the retroactive application of Amendment 782 to the United States Sentencing Guidelines, which lowered the federal sentencing guideline ranges for drug quantities by two levels. (Doc. 211). The Court denied Jackson's motion because Jackson was sentenced to a statutory minimum sentence of 240 months due to his prior conviction for a felony drug offense, and even though Amendment 782 nominally reduced his guideline range, by law, his actual guideline range could not fall below the statutory minimum. (Doc. 213) (citing U.S.S.G. § 5G1.1(b)).

         Jackson then filed the pending Writs of Error Coram Nobis on March 3, 2016, and December 1, 2016. (Docs. 216, 220). As noted in the Court's Order dated April 28, 2017, a writ of error coram nobis is not a remedy available to in-custody petitioners seeking to attack their federal convictions; thus, the Court construes Jackson's filings (Docs. 216, 220) collectively as a habeas petition pursuant to 28 U.S.C. § 2255. (See Doc. 221 at 1-2).^[3]As best the Court can discern, Jackson appears to raise three related claims. Jackson's first and primary claim is that the Government breached its plea agreement with him by refusing to file a motion to reduce his sentence pursuant to U.S.S.G. § 5K1.1 or Fed. R. Crim. P. 35, despite his substantial assistance (prior to his federal indictment) of participating in two controlled drug purchases that led to the arrest, indictment, and successful prosecution of five individuals. (Doc. 216 at 15-16). Second, Jackson claims his attorney was ineffective because he failed to mention in the post-conviction Motion to Reconsider filed on Jackson's behalf on April 29, 2009, that Jackson had performed two successful “controlled buys” prior to his federal indictment, and instead mentioned “only the praise offered by Officer Stone without an affidavit by Officer Stone.” (Id. at 65). Third, Jackson claims his attorney was ineffective at sentencing on December 18, 2007, because he failed to specifically bring the two controlled buys to the Court's attention despite the fact that Jackson repeatedly requested him to do so. (Id. at 66). Jackson seeks to have his sentence for count two reduced. (Id. at 84).

         In response, the Government seeks dismissal of Jackson's habeas petition as time-barred under the relevant statute of limitations and as procedurally defaulted due to Jackson's failure to raise these claims on direct appeal. (Doc. 222 at 2-3). The Government also argues that Jackson's claims fail on the merits because he has not established that the Government's decision not to file a substantial assistance motion was based on an unconstitutional motive. (Id. at 3). In his reply, Jackson does not dispute that his petition is untimely under § 2255. He instead argues that “[t]his is not a 2255 as the Assistant United States Attorney . . . claims. Petitioner is filing a Writ of Error Coram Nobis. It is without time limitation.” (Doc. 223 at 3). For the reasons set forth below, the undersigned finds that Jackson's petition is time-barred and accordingly ...