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Goins v. United States

United States District Court, S.D. Georgia, Dublin Division

May 3, 2019

MICHAEL DERRICK GOINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BRIAN K. EOTS UNITED STATES MAGISTRATE JUDGE

         Petitioner, an inmate at the Federal Correctional Institution in Jesup, Georgia, filed a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. The matter is now before the Court for an initial review of Petitioner's motion as required by Rule 4 of the Rules Governing Section 2255 Proceedings for the United States District Courts. For the reasons set forth below, the Court REPORTS and RECOMMENDS the § 2255 motion be DISMISSED on the basis that it is successive and has not been authorized by the Eleventh Circuit Court of Appeals for consideration, and that this civil action be CLOSED.

         I. BACKGROUND

         On May 7, 2014, the grand jury in the Southern District of Georgia charged Petitioner in a superseding indictment with one count of possession with intent to distribute cocaine, one count of conspiracy to possess with intent to distribute and to distribute controlled substances, and six counts of use of a communication facility in committing, causing, and facilitating the conspiracy to possess with intent to distribute, and to distribute controlled substances. United States v. Goins, CR 314-002, doc. no. 39 (S.D. Ga. May 7, 2014) (hereinafter “CR 314-002”). Represented by retained counsel J. Stanley Smith, Jr., and James C. Garner, Petitioner pled guilty to the one count of conspiracy to possess with intent to distribute and to distribute controlled substances on September 25, 2014, pursuant to a negotiated plea agreement containing a broad appeal and collateral attack waiver provision. Id., doc. nos. 234-36. In relevant part, the plea agreement stated Petitioner waived his right to appeal the conviction and sentence and the right to collaterally attack the conviction and sentence in any post-conviction proceeding, including a § 2255 proceeding, unless his sentence exceeded certain narrow parameters. Id., doc. no. 236, p. 5.

         On May 21, 2015, United States District Judge Dudley H. Bowen, Jr., sentenced Petitioner to 151 months imprisonment, and the judgment was entered on the docket May 26, 2015. Id., doc. nos. 342, 345. Petitioner did not immediately file a direct appeal but did file a motion to reduce sentence on January 11, 2016, which Judge Bowen denied. See id., doc. nos. 378, 380. On April 19, 2016, Petitioner filed a motion for copies of his case file, which Judge Bowen denied on May 5, 2016. See id., doc. nos. 384, 385. On May 9, 2016, Petitioner filed another motion asking the Court to provide him with case documents he said he required to file his § 2255 motion. Id., doc. no. 386. Petitioner additionally requested the Court to extend his time to file a § 2255 motion. Id. Judge Bowen denied as moot Petitioner's second motion for documents and noted the Court lacked the authority to grant Petitioner an extension to file his § 2255 motion. Id., doc. no. 388.

         The Clerk of Court received and filed Petitioner's first § 2255 motion on August 23, 2016, which alleged ineffective assistance of counsel, as well as abuse of discretion by Judge Bowen in “assuming” a quantity of drugs for sentencing and failing to award him several offense level reductions under U.S.S.G. § 3E1.1. Id., doc. no. 399; CV 316-069, Goins v. United States, doc. no. 1 (S.D. Ga. Aug. 23, 2016). In August 2016, Petitioner also filed an appeal of the January 2016 denial of his motion to reduce sentence, as well as an appeal of his May 2015 judgment. CR 314-002, doc. nos. 345, 378, 380, 400, 402. On September 26, 2016, the Eleventh Circuit dismissed both appeals for failure to pay filing and docketing fees or move to proceed in forma pauperis. Id., doc. no. 406. On January 18, 2017, Judge Bowen denied the § 2255 motion as untimely. Id., doc. no. 408, 418. The Eleventh Circuit dismissed Petitioner's appeal. Id., doc. no. 445.

         While the recommendation for dismissal of the § 2255 motion was under consideration by Judge Bowen, Petitioner filed a habeas corpus petition under 28 U.S.C. § 2241 in a different Division of this Court. See Goins v. Flournoy, CV 216-069 (S.D. Ga. Dec. 22, 2016). In that case, Petitioner alleged his sentence was illegally enhanced, he received ineffective assistance of counsel which invalidates his guilty plea, denial of due process, a fundamental miscarriage of justice, actual innocence of the crime to which he pled guilty, and lack of jurisdiction by the Court over the underlying criminal prosecution. Id., doc. nos. 1, 11. United States District Judge Lisa Godbey Wood granted the government's motion to dismiss that petition. Id., doc. no. 12. Petitioner did not appeal.

         Petitioner filed two more motions to reduce his sentence in December 2016. Id., doc. nos. 414, 415. Judge Bowen denied both motions. Id., doc. no. 417. Petitioner filed a motion for reconsideration of Judge Bowen's order denying those motions to reduce sentence, as well as a motion to reconsider the denial of his first § 2255 motion as untimely, both of which were also denied. Id., doc. nos. 420-22, 428. Petitioner appealed the denial of the motions for reconsideration and filed another motion to reduce his sentence. Id., doc. nos. 431, 436. Petitioner's multiple appeals were dismissed as duplicative or for failure to prosecute. Id., doc. nos. 443, 447, 456-57. Petitioner then filed a motion to “correct” his PSI, for “clarification” of the calculation of his sentence, and to obtain documents from his underlying criminal case, all of which Judge Bowen denied. Id., doc. nos. 465, 467, 470-72.

         In his October 3, 2018 Order, Judge Bowen explained:

. . . Defendant appears to be sowing the seeds of an attack against the legality of his sentence, which must be done through a motion under 28 U.S.C. § 2255. The problem for Defendant is twofold. First, his plea agreement contains a broad appeal and collateral attack waiver. Second, he has already filed a § 2255 motion, which was dismissed as untimely on January 18, 2017. (Doc. No. 418.) Thus, in order for Defendant to bring another § 2255 motion, he would have to move the Eleventh Circuit Court of Appeals for an order authorizing this Court to consider a second or successive § 2255 motion. See 28 U.S.C. §§ 2255, 2244(b)(3).

Id., doc. no. 472.

         Undeterred, Petitioner signed the current § 2255 motion on April 11, 2019, and the Clerk of Court received and filed it on April 15, 2019. (Doc. no. 1.) Petitioner asserts the wiretaps used during the investigation of the crimes for which he was indicted in 2014 are now invalid under Dahda v. United States, - U.S. -, 138 S.Ct. 1491 (U.S. 2018). (Id. at 14-17.) He also claims his retained counsel failed to file a notice of appeal as instructed. (Id. at 7.) Petitioner does not acknowledge the collateral attack waiver in his plea agreement with respect to his wiretap arguments and contends his numerically second § 2255 motion is not “successive” within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) because the United States Supreme Court did not decide Dahda until May of 2018. Petitioner further argues his lost appeal claim is not barred by the collateral attack waiver in his plea agreement, as Garza v. Idaho, 139 S.Ct. 738, 746-47 (U.S. 2019), ruled prejudice is presumed, regardless of a signed appeal waiver, if counsel fails to file a notice of direct appeal as instructed. He does not report seeking permission from the Eleventh Circuit Court of Appeals to file his numerically second § 2255 motion as to any of his current claims.

         II. DISCUSSION

         The § 2255 motion presently cannot be considered because of the successive motion restrictions enacted by AEDPA and now contained in 28 U.S.C. §§ 2255 ...


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