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Garcia v. United States

United States District Court, M.D. Pennsylvania

August 30, 2019

THOMAS GARCIA, Jr., Petitioner
v.
UNITED STATES OF AMERICA, Respondent

          MEMORANDUM

          MALACHY E. MANNION UNITED STATES DISTRICT JUDGE.

         Petitioner, Thomas Garcia, an inmate confined in the Canaan United States Penitentiary (“USP-Canaan”), Waymart, Pennsylvania, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. §2241. (Doc. 1). He challenges a conviction and sentence imposed by the United States District Court for the Northern District of Texas, Lubbock Division. Id. Specifically, he states that “Burrage, Rosemond and McFadden[1] are intervening substantive changes in the interpretation of federal criminal law, rendering [him] convicted of an act that the law does not make criminal retroactively applicable by the Supreme Court.” Id. As such, Garcia claims that he is actually innocent of 21 U.S.C. §841(a)(1), (b)(1)(B)(viii) and 18 U.S.C. §2 conviction for distribution and possession with intent to distribute 5 grams or more of methamphetamine and aiding and abetting absent advanced knowledge of controlled substance act or analogue. Id. For relief, he requests the Court “set aside plea as nullity and vacate convictions for Count 3 as void and grant him his immediate release from unlawful custody of the BOP” or “resentence him to correct fundamental miscarriage of justice to one who is factually innocent.” Id.

         I. Background

         On September 22, 2010, Garcia was indicted in the United States District Court for the Northern District of Texas on various drug distribution charges. United States v. Garcia, No. 5:10-CR-00104 (N.D. Tx.)

         On March 10, 2011, Garcia plead guilty to one count of distribution and possession with intent to distribute five grams or more of methamphetamine in violation of 21 U.S.C. §841(a)(1), 841(b)(1)(b)(viii); 18 U.S.C. § 2. Id. As part of the plea agreement, Garcia was informed that this drug distribution crime had a sentencing range of not less than 5 years and not more than 40 years. Id. Garcia acknowledged that he would be sentenced pursuant to the United States Sentencing Guidelines, which guidelines were advisory, and that he could not withdraw his plea if the sentence imposed was higher than expected. Id. Additionally, Garcia agreed not to contest his conviction and sentence in any collateral challenge brought under § 2241 or § 2255 other than a claim of ineffectiveness of counsel or a sentence exceeding the statutory maximum of 40 years. Id.

         In a separate “Factual Resume, ” which was signed by Garcia and made part of the criminal record, Garcia acknowledged that the elements of the crime of “distribution and possession with intent to distribute five grams or more of methamphetamine” consisted of: (1) him knowingly or intentionally distributing or possessing a controlled substance, (2) which was methamphetamine; (3) that he possessed the drug with the intent to distribute it; and (4) that the quantity of the drug was at least five grams of “actual methamphetamine.” Id. Garcia further admitted that on June 22, 2010, he and a codefendant had sold 27.1 net grams of methamphetamine, a schedule II controlled substance, with a purity level of at least 95.5%, such that the amount of pure methamphetamine was 25.88 grams. Id. Garcia further admitted that “he knowingly and intentionally distributed and possessed 25.88 net grams of actual methamphetamine or aided and abetted Monica Alicia Garcia with knowingly and intentionally distributing and possessing 25.88 net grams of actual methamphetamine.” Id.

         On July 1, 2011, Garcia was sentenced, inter alia, to 150 months of imprisonment. Id.

         On July 11, 2011, Garcia filed an appeal to the United States Court of Appeals for the Fifth Circuit. Id.

         On September 17, 2012, the Fifth Circuit dismissed Garcia's appeal for Petitioner's failure to present a nonfrivolous issue for appellate review. See United States v. Garcia, 475 Fed. App'x. 1002 (5th Cir. 2012).

         On April 19, 2013, Garcia filed a Motion to Vacate under 28 U.S.C. §2255. See Garcia v. United States, No. 5:13-CV-0104 (N.D. Tx). He alleged that: (1) his counsel was ineffective for failing to object to the presentence report's determination that he was responsible for 25.7853 grams of “actual” methamphetamine; (2) he was actually innocent of his sentence because the record did not support the quantity of actual methamphetamine; (3) his appellate counsel was ineffective for failing to argue that it was unconstitutional to hold him responsible for a drug amount greater than he had plead guilty to distributing; and (4) he should be resentenced due to his postsentence rehabilitative progress and granted a downward departure. Id.

         On May 20, 2013, the Government filed a response to §2255 motion, detailing its lack of merit both factually and under the law. Id. The Government explained that Garcia had admitted that he was responsible for 25.785 grams of “actual” methamphetamine, and that Garcia's counsel was not ineffective in failing to challenge the drug amounts, which was supported by the guidelines. Id.

         By Order dated August 2, 2013, the sentencing court found the following:

The Court has considered Movant's motion, Respondent's response, Movant's reply, and the relevant records and is of the opinion that Movant's Motion Under 28 U.S.C. §2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody should be DENIED and DISMISSED with prejudice for the reasons stated in Respondent's thorough and well-drafted response.

Id. On October 21, 2013, Garcia filed an appeal to the Fifth Circuit which dismissed the appeal on December 11, 2013 for want of prosecution, for Garcia's failure to ...


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