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United States v. Cleckley

United States District Court, W.D. Pennsylvania

July 25, 2014



TERRENCE F. McVERRY, District Judge.

Presently before the Court for disposition is the MOTION PURSUANT TO RULE 60(b)(6), FED. R. CIV. P. (ECF No. 84) filed pro se by Freddie Lamont Cleckley and the GOVERNMENT'S RESPONSE TO MOTION PURSUANT TO RULE 60(b), FED. R. CIV. P. For the reasons that follow, the Court will deny the motion.

I. Factual and Procedural Background

The parties are familiar with the background of Cleckley's criminal prosecution, conviction, and sentence. Thus, only the relevant portions of the procedural history will be recounted here.

On April 23, 2010, Cleckley pled guilty to each count of a three-count indictment which charged him with Possession with Intent to Distribute Crack Cocaine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) ("Count One"); Possession of a Firearm in Furtherance of a Drug Trafficking Crime in violation of 18 U.S.C. § 924(c)(1)(A)(i) ("Count Two"); and Possession of a Firearm by a Convicted Felon in violation of 18, U.S.C. § 922(g)(1) ("Count III"). Shortly thereafter, the Probation Office prepared a Presentence Investigation Report ("PSR"), wherein it recommended that Cleckley be sentenced as a career offender under U.S.S.G. § 4B1.1 based on his prior convictions for aggravated assault and possession with intent to deliver a controlled substance. Cleckley did not object to his classification as a career offender or to the PSR's description of the offense conduct for either of his predicate offenses. The career-offender enhancement increased Cleckley's offense level from 27 to 31, after the three-point reduction for acceptance of responsibility was applied. As a result, his Guidelines range was 188 to 235 months' imprisonment.

This Court then sentenced Cleckley as a career offender to a term of imprisonment of 248 months: 188 months at Count One, a concurrent sentence of 120 months at Count Three, and a consecutive sentence of 60 months at Count Two (as required by U.S.S.G. § 2K2.4, Application Noted 2(A) and 18 U.S.C. § 924(c)(1)(D)). The Court also imposed a five-year term of supervised release at Counts One and Two and a three-year term of supervised release at Count Three, with such terms to run concurrently. On July 28, 2011, the United States Court of Appeals for the Third Circuit affirmed Cleckley's conviction and sentence in a non-precedential opinion. See U.S. v. Cleckley , 440 F.Appx. 115 (3d Cir. 2011).

On September 22, 2011, Cleckley filed a pro se § 2255 petition in which he raised four claims of ineffective assistance of counsel: (1) that his trial counsel was ineffective generally; (2) that the court had a bias against him; (3) that his trial counsel was ineffective for failing to raise issues of suppression on appeal; and (4) that his trial counsel was ineffective for failing to discuss with him the inclusion of matters of suppression in an appellate brief. Three months later, Cleckley filed a MOTION TO DISMISS MOTION TO VACATE (ECF No. 58) and a MOTION FOR EXTENSION OF TIME TO FILE NEW MOTION TO VACATE SENTENCE (ECF No. 59). In the former motion, Cleckley asked the Court to dismiss his § 2255 petition because "[he] had an inmate help me and [he didn't] think [he] did it right with him" and to permit him to "supplement and amend a new 2255 motion." In the second motion, Cleckley again requested permission to amend and supplement his initial § 2255 motion and for an extension of time within which to do so. By Text Order dated January 3, 2012, the Court ordered the government to file a response, with which it complied on January 10, 2012. (ECF No. 61).

By Memorandum Opinion and Order dated February 14, 2012, the Court dismissed Cleckley's motion to vacate, denied his motion to dismiss, and denied his motion for extension of time/motion to amend as futile. No certificate of appealability was issued.

A week later, the Clerk of Courts docketed another form § 2255 motion filed by Cleckley, which was dated and signed on February 12, 2012.[1] As this Court previously noted,

[i]t is not clear if Cleckley filed this motion in an attempt to supplement his already adjudicated Section 2255 motion, if he desired to file a second § 2255 motion, or if he sent the instant Motion before he received the February 14, 2012 Memorandum Opinion and Order in which his original Section 2255 was denied as substantively without merit.

Mem. Opinion and Order, February 27, 2012, at 3 (ECF No. 66). Nevertheless, the Court construed the filing as a second or successive petition and dismissed it because Cleckley had not received authorization from the Court of Appeals before filing it. The Court also explained that even if the motion was not deemed a second or successive petition, it would nonetheless be denied because "[Cleckley's] unsupported allegations of ineffectiveness of counsel, without more, do not satisfy the standards set out in Strickland v. Washington , 466 U.S. 668, 690 (1984)." Id. at 3.

Cleckley thereafter filed a motion in the Court of Appeals requesting a certificate of appealability that would allow him to appeal this Court's February 14 order denying his initial § 2255 petition. By Order dated November 16, 2012, his request was denied. (ECF No. 73). In denying the request, the Court of Appeals explained,

We have reviewed each of the claims set forth in Cleckley's motion to vacate, filed on September 13, 2011, and his amended motion, filed on February 12, 2012. We find that none of Cleckley's claims of ineffective assistance of counsel has merit because he has not demonstrated that "there is a reasonable probability that, but for ...

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