United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OF OPINION
Scott Coogler United States District Judge
DeJuan Williams (“Williams”) has filed with the
Clerk of this Court a motion pursuant to 28 U.S.C. §
2255. (Doc. 1.) The Government has responded in opposition to
the motion. (Doc. 5.) For the reasons set forth below, the
§ 2255 motion is due to be denied and this action
dismissed without an evidentiary hearing.
Trial and Sentencing
September 24, 2015, Williams was charged along with 24 others
in a superseding indictment in United States v. Hall, et
al., 2:15-cr-00283-LSC-SGC (hereinafter
“Hall”), with conspiring to possess with
the intent to distribute and to distribute heroin, cocaine
hydrochloride, and “crack” cocaine, in violation
of 21 U.S.C. §§ 846, 841(a)(1), (b)(1)(A),
(b)(1)(B), and (b)(1)(C). Williams was also charged in three
counts with using a telephone in furtherance of the drug
trafficking conspiracy, in violation of 21 U.S.C. §
was arrested on the superseding indictment on October 21,
2015. During the execution of that arrest warrant, further
evidence of Williams' involvement in the drug trafficking
conspiracy was seized from his home, including various
amounts of cocaine, a half kilogram of heroin, and five
on this new evidence, the grand jury returned a second
indictment against Williams on December 28, 2015, charging
him with possessing with the intent to distribute 500 grams
or more of a mixture and substance containing cocaine
hydrochloride, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B); possession of five firearms in
furtherance of drug trafficking, in violation of 18 U.S.C.
§ 924(c)(1)(A); and possession of five firearms after
being convicted of a felony offense, in violation of 18
U.S.C. § 922(g)(1). That case is styled United
States v. Williams, 2:15-cr-00427-LSC-SGC (hereinafter,
“Williams”). Count Two alleged that five
firearms recovered from the home were possessed not only in
furtherance of the cocaine hydrochloride seized from
Williams' home on October 21, 2015, but also in
furtherance of the drug trafficking conspiracy charged in the
days after the indictment was returned in Williams,
the Government filed a motion to consolidate Hall
and Williams for trial. On January 25, 2016,
Williams' counsel responded in opposition. Following a
telephone conference in which the Court concluded that the
Government's motion was premature, the Government filed a
supplemental brief in support of its motion to consolidate.
The pleadings were referred to the assigned United States
Magistrate Judge, who granted the Government's motion to
consolidate Hall and Williams for trial.
April 5, 2016, Williams filed a motion to suppress that was
responded to by the Government on April 13, 2016. A
suppression hearing was held on April 27, 2016, and this
Court entered an order denying Williams' motion to
suppress on May 4, 2016.
consolidated cases proceeded to trial on May 9, 2016. All
other defendants in the 25-person conspiracy had pled guilty
except for Williams and one other alleged co-conspirator.
Several co-defendants testified against Williams at trial.
The jury returned a verdict on May 13, 2016, finding Williams
guilty on Counts 1, 19, 64, and 66 of the Hall case
and on Counts 1 and 3 of Williams. The United States
dismissed Count 2 of Williams when it appeared from
a juror's question that the jury was unable to reach a
verdict on that Count.
23, 2016, Williams filed a motion for a new trial, which the
Court denied. On September 27, 2016, the Court sentenced
Williams to 293 months' imprisonment on Count 1 and 48
months' imprisonment on Counts 19, 64, and 66 of
Hall, and 293 months' imprisonment on Count 1
and 120 months' imprisonment on Count 3 of
Williams, separately, with each count to be served
concurrently with the other.
filed a notice of appeal in both cases on October 6, 2016. On
October 25, 2016, both of Williams' trial counsels filed
motions to withdraw from representation. That same day, the
Court granted the motions to withdraw and approved the
appointment of appellate counsel in forma pauperis.
Michael Tewalt with the Federal Public Defender's Office
was appointed to represent Williams on appeal.
Tewalt timely filed Williams' appellate brief with the
United States Court of Appeals for the Eleventh Circuit. In
that brief, Williams argued that this Court erred in denying
his motion to suppress evidence recovered following the entry
and protective sweep of the outbuilding on his property. He
further argued that the arrest warrant was improperly
executed because testimony established that it might have
been executed a minute or two before 6:00 a.m., the earliest
time on which the warrant was authorized to be executed. The
Government filed a brief in opposition on May 24, 2017. On
September 20, 2017, the appellate court affirmed
Williams' convictions and sentence. The Eleventh Circuit
held that this Court properly found that the initial entry
into the outbuilding was proper pursuant to a valid arrest
warrant and that the search qualified as a valid protective
sweep. The court also found no merit to Williams'
assignment of error that the warrant was improperly executed
outside of the authorized time. Ultimately, the opinion was
issued as the Eleventh Circuit's mandate on November 27,
2017. Williams did not petition the United States Supreme
Court for a writ of certiorari.
§ 2255 Proceedings
April 18, 2018, Williams signed his § 2255 motion, which
was filed into the record two days later. Williams
enumerates ten grounds on which he contends that he is due
relief, and for each ground, he also avers that his appellate
counsel was ineffective for failing to raise the ground
before the Eleventh Circuit. Liberally construing the
substance of his claims,  the following points represent the ten
bases on which Williams seeks relief in his initial §
1. FBI agents failed to “knock and announce”
their presence at his home when they entered and arrested
him. Williams also claims that the agents did not have a
warrant to arrest him.
2. His due process and Fourth Amendment rights were violated
when agents used “flash bang” devices in
arresting him, which he claims was excessive force.
3. His due process and Fourth Amendment rights were violated
when he was arrested inside his home without a warrant.
4. His Fourth Amendment and due process rights were violated
when agents simultaneously entered an outbuilding on his
property where they saw contraband in plain view.
5. His Sentencing Guidelines were improperly enhanced using
the dismissed Count Two of the Williams indictment,
which alleged that he possessed the firearms in furtherance
of a drug trafficking crime.
6. His appellate counsel was ineffective for failing to raise
an actual innocence claim on appeal.
7. He claims that FBI Special Agent M. Wayne Gerhardt
(“Agent Gerhardt”) testified untruthfully during
his trial regarding his presence at his arrest, his
application for a search warrant, and the genesis of the
8. The Government committed a Brady violation in
failing to produce copies of the arrest warrant, search
warrants, and all affidavits in the search of his home.
9. His indictment was constructively amended when the Court
instructed the jury on mandatory minimum amounts of cocaine
and heroin that were not found on his person or in his
10. His indictment failed to charge an offense. He claims
that the jury should not have been instructed on crimes
involving heroin because heroin was only listed in the
superseding indictment in Hall and not in
Williams. He also alleges that the superseding
indictment in Hall was never unsealed.
the Government responded in opposition to the motion,
Williams filed several further pleadings, including a motion
for return of property (doc. 7, also filed as doc. 659 in the
Hall case and doc. 57 in the Williams
case),  a motion for an evidentiary hearing (doc.
8), and a “motion for relief” (doc. 9). In the
motion for an evidentiary hearing and the “motion for
relief, ” Williams expounds on several of the above
claims, but in the “motion for relief, ” Williams
also appears to be raising a new claim that his indictment
was “vindictive.” (Doc. 9 at 1.)
remains in custody.
Timeliness and Non-Successiveness of the § 2255
Eleventh Circuit's opinion affirming Williams'
convictions and sentence was issued as the Court's
mandate on November 27, 2017. From that point, Williams had
90 days, or until February 25, 2018, to file a petition for a
writ of certiorari with the Supreme Court of the United
States. SUP. CT. R. 13(1). When that date passed without such
a petition from Williams, his conviction became final.
See Clay v. United States, 537 U.S. 522, 532 (2003)
(“We hold that, for federal criminal defendants who do
not file a petition for certiorari with this Court on direct
review, § 2255's one-year limitation period starts
to run when the time for seeking such review
expires.”). Because Williams filed the instant §
2255 motion within one year of the date upon which his
conviction became final, the original motion was timely.
See 28 U.S.C. § 2255 (f)(1). This is also
Williams' first § 2255 motion, so it is not
“second or successive” within the meaning of the
Anti-Terrorism and Effective Death Penalty Act of 1996
(“AEDPA”). See Id. at §§
the “vindictive indictment” claim Williams
asserts for the first time in his later-filed “motion
for relief, ” dated by Williams March 4, 2019, and
entered into this record on March 7, 2019 (see doc.
9), is untimely-filed. This Court may only consider that
claim if it “relates back” to those claims filed
in the original, timely motion(s). See Davenport v.
United States, 217 F.3d 1341, 1343-44 (11th Cir. 2000)
(explaining that, when a defendant files a timely § 2255
motion, and then files an untimely supplemental motion that
raises an additional claim, the untimely claim is barred by
the statute of limitations unless it “relates
back” to the original motion under Federal Rule of
Civil Procedure 15(c)). A claim “relates back”
only if it arose “from the ‘same set of
facts' as the timely filed claim, not from separate
conduct or a separate occurrence in ‘both time and
type.'” Id. at 1344 (citations omitted).
The “vindictive indictment” claim does not
related back to any timely-filed claims. Williams cites
United States v. Schiller, 424 A.2d 51 (D.C. Cir.
1980), in support of his claim, which addresses a claim of
“vindictive prosecution” and sets forth a test
for evaluating such a claim made by a defendant. However,
Williams offers no facts whatsoever in support of such a
claim. Accordingly, the Court will not consider it.