Gosha v. United States

          MEMORANDUM OPINION

          SHARON LOVELACE BLACKBURN UNITED STATES DISTRICT JUDGE.

         This case is presently pending before the court on petitioner Jemaris Cortez Gosha's “Habeas Corpus Actual Innocence Claim in light of Supreme Court decision[s] McQuiggin v. Perkins and Boykin v. Alabama, ” (doc. 1; crim. doc. 32), ^[1] which the court deems to be a Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [Motion to Vacate].

         Gosha and his co-defendant, Herman Dewayne Cargill, were each charged with using and carrying a firearm during and in relation to a crime of violence - carjacking - in violation of 18 U.S.C. § 924(c)(1)(A). (Crim. doc. 1 at 2.) Cargill, but not Gosha, was also charged in the Indictment with carjacking. (Id. at 1.) Gosha was not charged with carjacking in this court because he had entered a guilty plea in Alabama state court to a charge of armed robbery arising out of the carjacking at issue in this case.^[2] (See crim. doc. 29 at 9.)

         Gosha pled guilty pursuant to a Plea Agreement with the Government. (See crim. doc.15; Minute Entry on March 22, 2012.) The Plea Agreement contained the following “Factual Basis for Plea”:

On August 22, 2011, at approximately 5:05 a.m., two males followed the victim to a Birmingham, AL hotel, as she left her place of employment, The Palace. After the victim parked and waited in her vehicle, a BMW X5, the males rushed up to the victim and demanded her money, purse, cell phone, and car keys and ordered her to exit the vehicle. According to the victim, both males were armed with handguns and threatened to shoot her if she did not heed their demands. The victim complied, and one of the robbers fled in her vehicle and the other robber fled in the Ford Expedition that they had driven to the scene of the crime.

         (Crim. doc. 15 at 2-3.) He signed the Plea Agreement and initialed the individual pages setting forth these facts. (Id.) He affirmed these facts during his plea colloquy.

         Gosha was convicted on his plea of guilty and sentenced to a custodial sentence of 84 months to be served after completion of his state-court sentence. (Crim. doc. 24.) Judgment was entered on August 21, 2012, (id.), and Gosha did not appeal.

         On or about October 16, 2016, Gosha filed a document entitled, “Habeas Corpus Actual Innocence Claim in Light of Supreme Court decision McQuiggin v. Perkins and Boykin v. Alabama. (Doc. 1; crim. doc. 32; see also doc. 2.) Gosha contends that he is “actually innocent” of the crime of conviction; he alleges:

The Court was without Jurisdiction to indict or convict. There [is] no record of a federal statute to show congress intended for 924(c) enhancement to attach to a state robbery of 1st degree where the weapon was already used within that State[']s Statute, whereas to use the 924(c) [statute] as a single charge [alone] would have charge[d] Movant twice in violation of double [jeopardy, ] violating his human rights under the 5th [amendment -] Once for Robbery in the first degree under Alabama state statue that consist of robbery with a weapon, and twice for a federal charge of a 924(c) that consist[s] of [committing] a crime of violence with the use of a firearm. The question to this court is what crime of violence did Movant commit within a federal Statute for this court to indict or convict. Is it the first degree State robbery charge or is it another crime Movant [committed]. Honorable Court there was no other crime [committed] other than the state first degree robbery where the weapon was already used to convict on that [statute] which make[s] this court lack Jurisdiction to have render[e]d Judgement against Movant and to try to use a single element of bran[d]ishing of the 924(c) would still attach it to the state [statute] where Movant has already served a 20 year spilt 5 for, therefore that single element [can't] be used twice.

(See doc. 1 at 1.)

         “A § 2255 motion ordinarily is subject to a one-year limitations period, ” Long v. United States, 626 F.3d 1167, 1169 (11th Cir. 2010), which in this case began to run when Gosha's conviction became final on September 5, 2012.^[3] Thus, his Motion to Vacate, filed in October 2016 was not timely filed. However, Gosha contends that he is actually innocent of the crime of conviction and that the court lacked jurisdiction. Therefore, he argues that he can raise his habeas claims at any time. (See doc. 1 at 2.)

         This court may “appl[y] the miscarriage of justice exception to overcome various procedural defaults, ” McQuiggin v. Perkins, 569 U.S. 383, 392-93 (2013), including an untimely-filed Motion to Vacate. The miscarriage-of-justice exception “requires the habeas petitioner to show that a constitutional violation has probably resulted in the conviction of one who is actually innocent.” Schlup v. Delo, 513 U.S. 298, 327 (1995)(citation and internal quotations omitted; emphasis added). “To invoke the miscarriage of justice exception to AEDPA's statute of limitations, . . . a petitioner ‘must show that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.'” McQuiggin, 569 U.S. at 399 (quoting Schlup, 513 U.S. at 327). A claim of actual innocence must be supported “with new reliable evidence - whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence - that was not presented at trial.” Schlup, 513 U.S. at 324; see also Rozzelle v. Sec'y, Fla. Dep't of Corr., 672 F.3d 1000, 1011 (11th Cir. 2012).

         Even if Gosha's Double Jeopardy claim had merit, “this would show, at most, legal innocence, ” which is not sufficient to excuse his untimely filing. See Young v. Jones, No. 1:14-CV-630-WKW, 2017 WL 1511345, *5 (M.D. Ala. Mar. 31, 2017)(citing Wallace v. Lockhart, 12 F.3d 823, 826-27 (8th Cir. 1994) and Steele v. Young, 11 F.3d 1518, 1522 & n.8 (10th Cir. 1993))(emphasis added); see also Waite v. United States, 74 F.3d 1242 (7th Cir. 1996)(“Since Waite has failed to meet the cause and prejudice standard, we may only consider his new claim if it satisfies the fundamental miscarriage of justice exception. . . . Waite does not claim factual innocence; he instead claims merely that the Double Jeopardy Clause prohibits a second punishment for the same offense. His claim is one of legal innocence, and does not meet the fundamental miscarriage of justice exception.”)(citations omitted; emphasis added); Drummond v. United States, 41 F.3d 664 (5th Cir. 1994)(“[Defendant's] argument that as a result of being tried on two counts of the indictment he was subjected to double jeopardy [does not] raise a question concerning his actual innocence.”)(citations omitted); Selsor v. Kaiser, 22 F.3d 1029, 1035 (10th Cir. 1994)(Although Petitioner's claim that he was placed in double jeopardy by virtue of being punished for felony murder and the underlying felony is meritorious, this shows only legal innocence, which the Supreme Court has held insufficient to establish a fundamental miscarriage of justice. Because Petitioner has failed to supplement his constitutional double jeopardy claim with a claim that he is factually innocent of the underlying armed robbery conviction, federal habeas review of his double jeopardy claim is barred.”)(citations omitted); Wereski v. McNeil, No. 3:08-CV-213, 2009 WL 1098465, *8 (N.D. Fla. Apr. 22, 2009)(Petitioner's “double jeopardy arguments, relate to the legal sufficiency of his plea and some of the charges, not his factual innocence of the crimes; therefore, these allegations are insufficient” to show actual innocence in order to excuse untimely filed habeas petition).

         Gosha admitted his factual guilt to the crime of conviction during his plea colloquy and in his Plea Agreement. He has made no attempt to present new reliable evidence that he did not use and/or carry a firearm during the car-jacking. What he offers are his legal contentions that, because he was not charged with car-jacking in the Indictment and because his armed robbery state-court conviction required proof that he used a firearm, his conviction should be set aside. However, these legal ...