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August 8, 1996


The opinion of the court was delivered by: WELSH




 August 8, 1996

 Presently before the court is a pro se motion to vacate, set aside or correct a sentence filed by a federal prisoner pursuant to 28 U.S.C. § 2255. *fn1" This is the second § 2255 motion that the defendant has filed in this district. In his first § 2255 motion, the defendant claimed that his guilty plea was involuntary because he did not know that he had the right to move to suppress evidence. The court found no basis for that claim because the defendant's attorney had, in fact, filed a pre-trial suppression motion and a supporting memorandum of law. Accordingly, by order dated January 31, 1994, the first § 2255 motion was denied.

 On January 18, 1996, the defendant filed a second § 2255 motion requesting this court to vacate his sentence because of alleged deficiencies in his guilty plea. He presently claims that his plea was not entered voluntarily and knowingly because he was under the influence of drugs. This claim comes two years after the defendant filed his first § 2255 motion.

 I. Background

 On April 15, 1992, Tyrone Roberson ("Roberson") informed Officer Dennis Wilson ("Officer") that he had just been robbed by an armed hispanic male. The Officer drove around the area with Roberson in an attempt to locate the suspect. Both the Officer and Roberson saw the defendant, Pedro Roman. Roberson then said, "That's him!" Mr. Roman dropped a shotgun and other items and ran away. Shortly thereafter, he was found hiding under a car and was clutching some money which had been stolen from Roberson. Mr. Roman was then searched, and a cigarette box was taken from him. It contained 25 vials, 16 of which tested positive for the presence of cocaine-base. After Mr. Roman was arrested, Roberson again identified Mr. Roman as the man who had robbed him, and he identified the property which Mr. Roman had dropped as his own. *fn2"

 On January 11, 1993, a federal grand jury returned a three-count indictment charging Mr. Roman with possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1), possession of an unregistered firearm, in violation of 26 U.S.C. § 5861(d), and possession of a controlled substance, in violation of 21 U.S.C. § 844. Joyce Webb Eubanks, Esq. was appointed to represent Mr. Roman.

 On March 9, 1993, Mr. Roman pled guilty to all three charges. Prior to accepting Mr. Roman's plea, Judge Ditter explained to Mr. Roman the consequences of pleading guilty. Mr. Roman acknowledged that he understood what rights he was giving up and that he wanted to plead guilty. Mr. Roman was sentenced to a 162 month term of incarceration. *fn3"

 In December of 1993, the defendant filed his first § 2255 motion in this district court. The motion included four grounds for relief, all of which involved the alleged unlawful seizure of certain evidence, namely, a sawed-off shotgun and crack cocaine. The defendant claimed that he did not know he had the right to move for suppression of the evidence, and that if he had known, he would not have pled guilty. Therefore, the defendant asserted that his guilty plea was involuntary. His claims were denied in an order dated January 31, 1994.

 The defendant filed his second § 2255 motion in January of 1996. He has asserted that he pled guilty against his will and did not understand what he was being asked while in court because he was under the influence of drugs and was "not in the right frame of mind." The government has responded to the second motion by advancing three arguments. First, the government requests that this court decline to review the defendant's claim on its merits. In support of this request, the government argues that the present motion constitutes an abuse of the § 2255 procedure because the defendant failed to raise the present claim in his first § 2255 motion. Second, the government refutes the defendant's claim of "not being in the right frame of mind" by noting that the defendant was responsive while in court. Third, the government asserts that the defendant's claim should be denied because he has offered no evidence to support his claim that he pled guilty while under the influence of drugs.

 II. Discussion

 Under Rule 9(b) of the Rules Governing Section § 2255 Proceedings for the United States District Courts, a successive motion:


may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

 The defendant's first § 2255 motion was based on different grounds for relief than his present claim that his guilty plea was involuntary because he was under the influence of drugs and was not "in the right frame of mind."

 When a prisoner files a successive motion, the government bears the initial burden of proving that the present motion is abusive by demonstrating the defendant's prior writ history, by noting the claims that appear for the first time, and by alleging that the defendant has abused the § 2255 procedure. McCleskey v. Zant, 499 U.S. 467, 493, 113 L. Ed. 2d 517, 111 S. Ct. 1454 (1991). *fn4"

 The burden to disprove abuse then becomes that of the defendant. To do so, the defendant must show cause for his failure to raise the claims in the earlier motion and prejudice therefrom. Id. In order to demonstrate cause, the defendant must show that "some objective factor external to the defense impeded [the defendant's] efforts" to raise the claim previously. Id. (quoting Murray v. Carrier, 477 U.S. 478, 488, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986)). Examples of cause that are germane to an abusive § 2255 motion include: (1) a showing that the factual or legal basis for a claim was not reasonably available; (2) attorney error that constitutes ineffective assistance of counsel. See Coleman v. Thompson, 501 U.S. 722, 750, 115 L. Ed. 2d 640, 111 S. Ct. 2546 (1991). Once the defendant has established cause, he must show actual prejudice resulting from the errors of which he complains. McCleskey, 499 U.S. at 494.

 If the defendant cannot show cause, the failure to raise a claim in an earlier § 2255 motion may be excused if he can show that a fundamental miscarriage of justice would result from a failure to entertain his claim. Id. at 495. The fundamental miscarriage of justice exception is limited to cases of "actual innocence." Schlup v. Delo, 513 U.S. 298, 130 L. Ed. 2d 808, 115 S. Ct. 851, 864 (1995). In order to demonstrate that he is "actually innocent," the defendant must present new evidence of his innocence. 115 S. Ct. at 861-62. This evidence need not be directly related to the substantive claims the defendant is presenting because the claims themselves need not demonstrate that he is innocent. See id. at 861. The court must consider the evidence of innocence presented along with all the evidence in the record, even that which was excluded or unavailable at trial. Id. at 867. Once all this evidence is considered, the defendant's claims can only be reviewed if the court is satisfied "that it is more likely than not that no reasonable juror would have found the defendant guilty beyond a reasonable doubt." Id. at 867.

 Here, the defendant alleges that he did not understand the consequences of his guilty plea because he was under the influence of drugs and was not "in the right frame of mind." Since the defendant failed to assert this second claim in his first § 2255 motion, the government argues that he has abused the § 2255 procedure and that the defendant's claim should not be reviewed on its merits. This court concurs and will turn its attention to the questions of cause and prejudice and fundamental miscarriage of justice.

 The defendant has not identified any objective factor external to the defense which would explain why he failed to include his present claim within his first § 2255 motion. This means that he cannot establish cause and prejudice for his failure to include the claim in his first § 2255 motion. The defendant has also failed to present any evidence that he is actually innocent of the charged offenses. This means that the defendant cannot demonstrate that the failure to consider his new claim would constitute a fundamental miscarriage of justice. Accordingly, the defendant's § 2255 motion should be dismissed pursuant to Rule 9(b).

 The court's recommendation follows.


 AND NOW, this 8th day of August 1996 for the reasons contained in the preceding Report it is hereby RECOMMENDED that the defendant's pro se motion filed pursuant to 28 U.S.C. § 2255 is DISMISSED without a hearing.



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