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