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United States v. Dover

United States District Court, E.D. Pennsylvania

June 12, 2017



          R. BARCLAY SURRICK, J.

         Presently before the Court is Petitioner Alfred Dover's Petition for Writ of Error Coram Nobis pursuant to 28 U.S.C. § 1651(a). (ECF No. 259.) For the following reasons, Petitioner's Petition will be denied. In the interest of justice, the Petition will be transferred to the Third Circuit Court of Appeals pursuant to 28 U.S.C. § 1631, as a petition for leave to file a second or successive habeas petition under 28 U.S.C. § 2255(h).

         I. BACKGROUND

         In 1997, Petitioner Alfred Dover was convicted of three crimes-possession of cocaine with intent to distribute, use of a firearm in furtherance of drug trafficking, and possession of a firearm as a convicted felon. Over the course of the last twenty years, Petitioner has consistently and unequivocally maintained his innocence. After an unsuccessful attempt (1) to appeal his conviction and sentence, and (2) to seek habeas relief under 18 U.S.C. § 2255, Petitioner now seeks relief from this Court in the form of a petition for writ of error coram nobis under the All Writs Act, 28 U.S.C. § 1651. Petitioner bases his request on newly discovered evidence. That new evidence is that one of the Government's key witnesses in the case against him-Officer Jeffrey Walker-recently admitted under oath that, on numerous occasions, he perjured himself, fixed cases, and planted guns and drugs on arrestees to secure convictions. These acts were committed during the same time period of Petitioner's arrest, and in the same precinct as Petitioner's arrest. We believe that Petitioner, at the very least, should be able to question Officer Walker about the circumstances of his arrest. However, we simply lack the jurisdiction to provide Petitioner with such relief. As a result, we are compelled to deny his Petition for writ of error coram nobis.

         A. Procedural History

         On April 24, 1996, a grand jury returned an indictment charging Petitioner Alfred Dover with one count of possession of cocaine base with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) (Count One); one count of use of a firearm in furtherance of a drug trafficking offense, in violation of 18 U.S.C. § 924(c) (Count Two); and one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922(g)(1) (Count Three). (Resp. Mot. 1, ECF No. 262.) Petitioner's codefendant, Montrell Gary, was charged with possession of cocaine base with intent to distribute. (Id.) Petitioner and Gary's first trial in November 1996 resulted in a hung jury. A retrial was held in February 1997. (Mot. Set Aside Verdict ¶¶ 3-4.) On February 7, 1997, following a trial before the Honorable Raymond J. Broderick, Petitioner and Gary were found guilty by a jury of all charges. (Id. ¶ 14.) Petitioner was sentenced to 188 months in prison on Count One, with a consecutive 60-month prison term on Count Two, and a 120-month term on Count Three to be served concurrently with the sentence imposed on Count One. (Id. ¶ 19.) The Court also imposed a five-year term of supervised release to follow the jail sentence. (Resp. Mot. 2.) Petitioner filed an appeal. On July 7, 1998, the Third Circuit Court of Appeals affirmed the judgment of sentence. United States v. Dover, 159 F.3d 1353, 1353 (3d. Cir. 1998).

         On October 26, 1998, Petitioner filed a Motion to Supersede Judgment pursuant to Fed.R.Civ.P. 60(b)(4). (ECF No. 139.) The District Court construed the motion as one attacking a sentence pursuant to 28 U.S.C. § 2255. This Motion was denied on April 8, 1999. (ECF No. 141.) Petitioner then requested a certificate of appealability, which was denied by the District Court on August 26, 1999. (ECF No. 153.) However, the Third Circuit granted the certificate on July 10, 2000, and remanded the matter to District Court. (Mot. Set Aside Verdict ¶ 24.)

         On September 5, 2000, Petitioner filed a motion pursuant to 28 U.S.C. § 2255. (ECF No. 168.) The motion was denied on May 17, 2002. (ECF No. 191.) Petitioner filed a Motion to Reduce Sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 782 of the Sentencing Guidelines on December 22, 2014. (ECF No. 245.) That motion was granted on February 24, 2015, and Petitioner's sentence was reduced from 248 months to 208 months. (ECF No. 254.)

         On January 15, 2015, Petitioner filed a motion in the Third Circuit requesting approval to file a successive § 2255 motion. Petitioner argued that a government witness at the 1997 trial, Police Officer Brian Reynolds, had been federally indicted along with other officers on corruption charges related to official misconduct. In addition, another trial witness, Officer Jeffrey Walker, had entered a plea of guilty to similar charges. (Resp. Mot. 2.) The charges related to fabricating testimony and planting evidence. Reynolds and Walker were involved in the arrest and conviction of Petitioner on the 1996 charges. On February 4, 2015, The Third Circuit denied the motion. The Court determined that Petitioner had failed to make a prima facie showing that his proposed § 2255 motion relies on either of the following: (1) newly discovered evidence that, if proven and viewed in the light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable fact finder would have found him guilty of the offenses; and (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavoidable. (Feb. 4, 2015 Third Circuit Order, ECF No. 249.)

         On May 27, 2015, Petitioner filed a letter pro se, which he characterized as a motion under 28 U.S.C. § 2255. Petitioner alleged that Officer Walker's testimony at a recent federal trial revealed that he and Officer Reynolds had participated in corrupt acts during the time of Petitioner's arrest, such as planting drugs and guns in order to secure convictions. (Mot. Vacate 2, ECF No. 256.) Counsel was appointed to represent Petitioner, and on August 26, 2015, the instant Petition for a Writ of Error Coram Nobis was filed.

         B. Factual Background

         1. The Evidence at Petitioner's Trials

         Petitioner's first trial was conducted from November 21 to November 25, 1996, and resulted in a hung jury. (Mot. Set Aside Verdict ¶ 3.) The second trial occurred in February 1997. (Id. ¶ 4.) Officer Brian Reynolds was the government's first witness at both trials. (Id. ¶ 5.) Officer Reynolds testified that on October 30, 1995, at approximately 2:00 a.m., he saw Petitioner, Montrell Gary, and two other males standing outside a Lucky 7 convenience store at 43rd Street and Westminster Avenue in the 16th District of Philadelphia, Pennsylvania. (Id. ¶ 6.) The males appeared to be locking a security gate at the rear of the store. (Resp. Mot. 3.) After Officer Reynolds ordered the males to approach him, Petitioner took out a white plastic bag, tossed it to Montrell Gary, and both ran away. (Mot. Set Aside Verdict ¶ 7.) Officer Reynolds and his partner, Sergeant Daniel MacDonald, pursued Petitioner and Gary. (Id. ¶ 8.) Officer Reynolds testified that he ultimately pushed Gary to the ground and arrested him. Sergeant MacDonald arrested Petitioner. (Id. ¶¶ 8-9.)

         Sergeant MacDonald testified that when he arrived on the scene with Officer Reynolds, he observed Petitioner with a handgun. (Id. ¶ 10.) Sergeant MacDonald further testified that after he chased and tackled Petitioner to the ground, Sergeant MacDonald then handcuffed Petitioner, who was found to be in possession of a concealed handgun. (Id. ΒΆ 11.) At that point, backup officers arrived and helped Officer Reynolds handcuff Gary. (Resp. Mot. 4.) Officer Reynolds picked up the white plastic bag ...

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