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United States of America v. Jerry Martese Dubose A/K/A Ray

April 3, 2013

UNITED STATES OF AMERICA, PLAINTIFF/RESPONDENT,
v.
JERRY MARTESE DUBOSE A/K/A RAY, DEFENDANT/PETITIONER.



The opinion of the court was delivered by: Michael J. Davis Chief Judge United States District Court

ORDER

This matter is before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255.

I. Factual/Procedural Background

Petitioner was charged by Indictment on July 22, 2008 with conspiracy to distribute 500 grams or more of cocaine and 50 grams or more of cocaine base ("crack") in violation of 21 U.S.C. § § 846, 841(a)(1) and (b)(1)(A). Prior to trial, certain of Petitioner's co‐defendants filed a motion to suppress evidence, which challenged the constitutionality and statutory compliance of the wiretapping. The hearing on this motion was held on December 3, 2008, and the Magistrate Judge thereafter issued a Report and Recommendation, recommending that the motions to suppress be denied. This Court did not issue an order adopting the Report and Recommendation, however, as the co‐defendants that brought the motions entered into plea agreements with the government.

On April 30, 2009, Petitioner was appointed new counsel. Thereafter, Petitioner filed a motion to suppress statements contained in wiretaps. By this motion, Petitioner did not seek a new suppression hearing, he only sought a ruling from this Court as to whether the statements contained in the wiretaps would be admissible at trial. (Doc. No. 368 at 3.) This Court conducted a de novo review of the record, including the wiretap affidavit, application and order, and found no merit to Petitioner's motion to suppress. (Order dated July 21, 2009 (Doc. No. 377).)

The matter proceeded to trial, and on July 27, 2009, a jury found Petitioner guilty of Count I of the Indictment. (Verdict Form (Doc. No. 386).) The jury also found that the offense of conviction involved 500 grams or more of cocaine, and 50 grams or more of crack cocaine. (Id.)

Petitioner was sentenced on November 18, 2009 to a term of imprisonment of 120 months ‐ which was the statutory mandatory minimum sentence for the count of conviction. A sentence of 120 months represented a 15 month downward departure from the applicable sentencing guideline range. Petitioner thereafter filed a notice of appeal challenging his conviction and this Court's denial of his motion to suppress statements contained in the wiretap. The Eighth Circuit rejected Petitioner's arguments and affirmed his conviction. United States v. Gaines et al., 639 F.3d 423, 432‐33 (8th Cir. 2011) reh'g denied (Jun. 8. 2011) and reh'g and reh'g en banc denied (Oct. 26, 2011).

On February 14, 2012, Petitioner filed a motion before this Court for a sentence reduction pursuant to 18 U.S.C. § 3582 and Amendments 750 and 759 to the sentencing guidelines, which lowered the base offense levels applicable to certain crack cocaine offenses. (Doc. No. 571.) The Court found that Petitioner was not eligible for a sentence reduction under the amended crack cocaine guidelines as he had been sentenced to the statutory mandatory minimum sentence for the offense of conviction. (Order dated March 26, 2012 (Doc. No. 579).) The Court further found that the reduced statutory mandatory minimum penalties set forth in the Fair Sentencing Act ("FSA") are not applied retroactively. (Id.) Petitioner thereafter filed a motion that this Court construed as a request for reconsideration. Upon review of the record, the Court denied Petitioner's motion. (Order dated April 13, 2012 (Doc. No. 584).) Petitioner appealed the denial of his motion for a reduced sentence. The Eighth Circuit denied the appeal without further comment on May 22, 2012. (Doc. No. 595.)

On August 13, 2012, Petitioner filed a new motion for modification of his sentence, again seeking retroactive application of the amendments to the sentencing guidelines and under the FSA. (Doc. No. 609.) While this motion was pending, Petitioner filed the instant habeas petition. (Doc. No. 614.) By Order dated October 31, 2012, this Court denied Petitioner's motion to modify his sentence. (Doc. No. 618.) Petitioner appealed this decision to the Eighth Circuit, which again denied the appeal without comment. (Doc. No. 631.) The Mandate has been filed (Doc. No. 635) and the Court will now address Petitioner's motion pursuant to 28 U.S.C. § 2255.

II. Standard

Under 28 U.S.C. § 2255, "[a] prisoner in custody under sentence . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence . . .or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence." 28 U.S.C. § 2255(a). Section 2255 is intended to provide federal prisoners a remedy for jurisdictional or constitutional errors. Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011). It is not intended to be a substitute for appeal or to relitigate matters decided on appeal. See Bousley v. United States, 523 U.S. 614, 621 (1998); Davis v. United States, 417 U.S. 333, 346‐47 (1974)). One exception to this general rule is where there has been "'an intervening change in the law.'" Davis, 417 U.S. at 342 (quoting Sanders v. United States, 373 U.S. 1, 17 (1963)). The change in law, however, must result in such a "fundamental defect" that it "inherently results in a complete miscarriage of justice." Id. at 346.

III. Analysis

Petitioner has raised a number of argument in his § 2255 petition, including: 1) ineffective assistance of counsel; 2) insufficiency of the evidence to support his conviction; 3) inadmissibility of statements obtained through wiretaps; 4) sentence was not based on an adequate drug quantity determination; 5) variance between Indictment and evidence at trial; and 6) a sentence reduction under the FSA.

The only issue raised on appeal was whether Petitioner's statements contained on the wiretap should have been excluded at trial. Failure to raise an issue on direct appeal generally constitutes a procedural default, which prohibits the petitioner from raising the issue for the first time in a ยง 2255 motion. Id. A procedural default will be excused only if the petitioner can demonstrate cause and actual prejudice or that he is actually innocent. Id. at 622. See also Lindsey v. United States, 615 F.3d 998, 1000 (8th Cir. 2010); United States v. Bailey, 235 F.3d 1069, 1072 (8th Cir. 2000). ...


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