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Buford v. United States

United States District Court, N.D. Alabama, Northeastern Division

February 14, 2019

RODERICK BUFORD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          R. DAVID PROCTOR UNITED STATES DISTRICT JUDGE.

         This case is before the court on Petitioner's Motion to Vacate, Set Aside, or Correct Sentence. (Civil Docket, Doc. # 1).[1] The Government responded to Petitioner's Motion on October 5, 2016 (Id., Doc. # 10), and Petitioner replied on October 31, 2016. (Id., Doc. # 12). The Motion to Vacate is now ripe for decision. After careful review, and for the reasons explained below, the court concludes that Petitioner's Motion to Vacate is due to be denied as untimely without an evidentiary hearing.

         I. Factual and Procedural Background

         In June 2008, Petitioner was charged along with 32 co-defendants in a multi-count indictment arising from a drug trafficking conspiracy. (Criminal Docket, Doc. # 60). On September 23, 2008, Petitioner entered into a plea agreement with the Government. (Id., Doc. # 333). He agreed to plead guilty to Conspiracy to Distribute Cocaine, Crack Cocaine, and Marijuana in violation of 21 U.S.C. §§ 846 and 841(a)(1) (Count Four) and Possession with Intent to Distribute Crack Cocaine (County Thirty-One) and Possession with Intent to Distribute Cocaine (Count Thirty-Two), both in violation of 21 U.S.C. § 841(a)(1). (Id.).

         The agreement contained the following relevant factual basis:

Cooperating witnesses have provided information that, following his release from prison on a drug conviction in 2004, the defendant again became involved in the drug trade. On April 9, 2008, the defendant was arrested in Decatur, Alabama and found to be in possession of over 10 ounces of cocaine, over an ounce of crack cocaine, a quantity of marijuana, and a large amount of currency. After being advised of and waiving his Miranda rights, the defendant stated that, following his release from prison, he began obtaining pound quantities of marijuana and then multiple ounce quantities of cocaine from James Hicks. He stated that some of the cocaine he obtained from Hicks was in the form of or was cooked into crack cocaine. At trial, the government would establish that the defendant, over the course of his dealings with Hicks, obtained multiple kilograms of cocaine from him. The defendant also stated that he met a Hispanic male named Ramon and later a Hispanic male known to him as Pedro. The investigation has revealed that these individuals were Ramon Barajas and Galdino Zamora, respectively. The defendant obtained multiple kilogram quantities of cocaine from Zamora on several occasions. The defendant stated that he was told that Zamora was the source of supply for the cocaine and that it was then sold to Reco Willingham who was in turn supplying cocaine to Hicks. During his drug trafficking, the defendant continued to obtain multiple pound quantities of marijuana for resale from various sources. At trial, the government would produce testimony which would corroborate statements made by the defendant.

(Id. at 3-4). Petitioner stipulated that these facts were substantially correct and acknowledged that the purpose of the factual basis was to support his guilty plea. (Id. at 4). He further stipulated that he was “responsible for distributing, possessing with the intent to distribute, and/or conspiring to distribute or possess with the intent to distribute a quantity of controlled substance, cocaine, the weight of which is at least 15 to 50 kilograms, some of which was in the form of crack cocaine, and marijuana, the weight of which is at least between 100 and 400 kilograms.” (Id. at 5).

         The plea agreement contained a limited appeal waiver and a waiver of the right to seek post-conviction relief. With certain exceptions, Petitioner waived his right to appeal the conviction, sentence, fines, restitution, and forfeiture imposed by the court, as well as his right to contest his conviction or sentence in any post-conviction proceeding, including a motion to vacate under Section 2255. (Id. at 8-9). Petitioner retained the right to challenge a sentence above the applicable statutory maximum and a sentence above the Sentencing Guidelines range as determined by the court. (Id.). Finally, Petitioner affirmed that he understood and knowingly entered into the waiver. (Id.). During Petitioner's plea hearing, the court ensured that Petitioner (1) had read each page of the agreement, (2) voluntarily signed the agreement, (3) agreed to its contents, and (4) understood its operation and effect. (Id., Doc. # 1167 at 20-22).

         Petitioner's sentence was subject to enhancement pursuant to U.S.S.G. § 4B1.1, the career offender provision, due to two prior controlled substance violations. (Id., Doc. # 606). On January 26, 2009, the Government filed a motion which requested a downward departure in Petitioner's advisory guideline range from life to 262 months. (Id. Doc. # 547 at 5). Accordingly, Petitioner was sentenced to 262 months in prison on January 27, 2009, and the court entered Petitioner's judgment on February 4, 2009. (Id., Doc. # 608).

         Six years later on April 13, 2015, Petitioner filed a pro se motion to unseal the record, judgment, sentencing transcripts, and discovery material from his federal case. (Id., Doc. # 1080). He alleged that he was the victim of a federal offense committed by the former head of the Decatur Police Department, Sargent Faron White, [2] and he needed the records to determine whether his rights had been violated. (Id. at 2). White was convicted on September 22, 2009 of Theft from Government Agency Receiving Federal Funds in violation of 18 U.S.C. § 666(a)(1). See No. 5:09-cr-023-CLS. From 2007 to 2008, White embezzled approximately $60, 000 of the Decatur Police Department's seized funds that were scheduled to be condemned through the court system. (Id., Doc. # 19). He then fled to Las Vegas, where he was eventually apprehended by the United States Marshal's Fugitive Task Force on January 5, 2009. (Id.). In light of this factual basis, the court denied Petitioner's motion because it found that his conviction was “based on crimes wholly separate from and unrelated to the Theft from Government Agency for which Mr. White was convicted.” (Id., Doc. # 1082 at 2).

         Petitioner filed the instant Motion to Vacate on June 30, 2016.[3] (Civil Docket, Doc. # 1). In his Motion, he alleges that (1) he received ineffective assistance of counsel because his attorney failed to investigate prosecutorial misconduct and police corruption (Grounds One and Two[4]) and (2) his guilty plea was not knowingly and intelligently entered because the prosecutor committed a Brady violation by withholding information about Faron White's criminal activity between 2007 and 2008 (Ground Three).[5] (Id. at 6-7).

         In support of his Motion, Petitioner alleges that, shortly after his indictment, the U.S. Attorney questioned him about whether he knew any “corrupt police officers.” (Id., Doc. # 2 at 2). Despite his suspicion of White, Petitioner responded in the negative because White had threatened him in the past relating to his prior state convictions. (Id.). Petitioner contends that even though he answered “no, ” White had actually attempted to bribe him twice by offering to make his 1995 state charges “disappear” in exchange for a “substantial amount of money.” (Id. at 3). Petitioner claims that in November 2007, White made a similar offer and told him that if he (Petitioner) gave White $20, 000, White would make the warrant for his drug trafficking offenses “disappear.” (Id. at 3). The crux of Petitioner's argument is that his prior state offenses (which were tainted by White's criminal behavior) were improperly used to establish Petitioner as a Career Offender, thus enhancing his federal sentence.[6] (Id. at 12-13).

         Although Petitioner filed his Motion long after the one-year statute of limitations, Petitioner asserts that his Motion to Vacate is timely because his claims did not become discoverable until May 9, 2016, when his girlfriend was finally able to obtain the documents “establishing that prior police officer Sgt. Faron White…had been arrested for corruption.” (Id. at 12-13; see 28 U.S.C. § 2255(f)(4). In the alternative, Petitioner claims that he is entitled to equitable tolling both because he is factually innocent of his federal charges and because he diligently pursued relief as soon as he obtained the information on White's conviction. (Id. at 28-29).

         The Government argues Petitioner's claim is untimely because Petitioner admits in his pleadings that he had personal knowledge of White's corruption as early as 1995 when he was first indicted on a controlled substance violation. (Id. at 7-8). Furthermore, White's 2009 conviction was a matter of public record and apparently received a considerable amount of media coverage. (Id. at 9; see also United States v. White, No. 5:09-cr-00023-CLS-HGD). Simply put, the Government argues that, in any event, Petitioner did not act with due diligence because he did nothing to pursue his claims “from February 14, 2009, the day on which his conviction became final, and April 5, 2015, the day on which he claims to have learned that White had been caught-a period of more than six years.” (Id. at 11). Lastly, the Government contends that Petitioner is not entitled to equitable tolling because he has only alleged legal insufficiency of his conviction as opposed to factual innocence. (Id. at 12-13).

         II. Analysis

         A federal prisoner may file a Motion to Vacate his or her sentence “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 collateral attack.” 28 U.S.C. § 2255(a). It is well settled that “to obtain collateral relief[, ] a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166 (1982). After careful review, and for the reasons explained below, the court finds that Petitioner's claims are due to be denied as untimely without an evidentiary hearing.

         A. Petitioner's Motion to Vacate is Due to be Denied as Untimely

         The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposes a one year statute of limitations for filing a § 2255 motion. 28 U.S.C. § 2255(f). The one year limitations period runs from the latest of: “(1) the date on which the judgment of conviction becomes final; (2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action; (3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (4) the date on which facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.” 28 U.S.C. §§ 2255(f)(1)-(4).

         i. Petitioner's Motion is Untimely Under ...


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