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United States v. Gillmore

United States District Court, D. Minnesota

December 27, 2016

United States of America, Respondent-Plaintiff,
v.
Carol Louise Gillmore, Petitioner-Defendant.

          MEMORANDUM OPINION AND ORDER

          Donovan W. Frank United States District Judge

         This matter is before the Court on Petitioner-Defendant Carol Louise Gillmore's (“Petitioner-Defendant”) pro se motion to vacate, set aside or correct her sentence pursuant to 28 U.S.C. § 2255. (Doc. No. 119.) The United States of America (“the Government”) opposes Petitioner-Defendant's motion. (Doc. No. 122.) For the reasons set forth, the Court denies the Petitioner-Defendant's motion.

         BACKGROUND

         The above-entitled matter came on before the Court as a bench trial, the parties having waived a jury trial. The matter was tried on January 31, February 1, 2, and 6, 2006.

         The Superseding Indictment before the Court charged the Petitioner-Defendant in Count 1 with Felony Murder in the First Degree alleging that on or about February 13, 2002, Defendant, with malice aforethought, did unlawfully kill George A. Stately in the perpetration of a robbery, in violation of Title 18, United States Code, Sections 111(a), 1151 and 1153(a). Count 2 alleged Premeditated Murder in the First Degree alleging that on or about February 13, 2002, Defendant willfully, deliberately, maliciously, and with premeditation and malice aforethought, did kill George A. Stately by repeatedly striking him in the head with a hammer and cutting his throat with a knife, in violation of Title 18, United States Code, Sections 111(a), 1151 and 1153(a). Count 3 alleged Intentional Second Degree Murder alleging that on or about February 13, 2002, Defendant did, with malice aforethought, kill George A. Stately by repeatedly striking him in the head with a hammer and cutting his throat with a knife, in violation of Title 18, United States Code, Sections 1111(a), 1151 and 1153(a). Count 4 alleged the offense of Arson, specifically, that on or about February 13, 2002, Defendant did willfully and maliciously set a fire to burn down the home of George A. Stately, in violation of Title 18, United States Code, Sections 81, 1151 and 1153(a).

         The parties entered into an agreement that included waiving a jury trial in this matter. In that signed agreement, the Petitioner-Defendant admitted to the unlawful killing of George Stately. The Petitioner-Defendant further agreed that she was making no claim of justification, including making no claim of self-defense or intoxication. The parties agreed that the defense would raise the legal issue of imperfect self-defense. The parties, however, disagreed about the Petitioner-Defendant's level of culpability. At trial, the Petitioner-Defendant argued that she was guilty of manslaughter and the Government argued for a murder verdict.

         The Court found the Petitioner-Defendant guilty of intentional second-degree murder and arson. The Court respectfully rejected the Petitioner-Defendant's “imperfect self-defense” argument finding that “even if the ‘imperfect self-defense' was recognized by the Eighth Circuit . . . it is not applicable to the tragic events of February 13, 2002.” (Doc. No. 97 at 35.)

         On September 29, 2006, this Court sentenced the Petitioner-Defendant to 396 months for the intentional second-degree murder of George A. Stately and 180 months for the offense of arson to be served concurrently. (Doc. No. 103 at 2.)

         On October 6, 2006, the Petitioner-Defendant filed a timely appeal for review by the United States Court of Appeals for the Eighth Circuit. United States v. Gilmore, 497 F.3d 853 (8th Cir. 2007). On August 15, 2007, the Eighth Circuit affirmed the Court's decision. Id. The Petitioner-Defendant then filed a petition for writ of certiorari which was denied on January 7, 2008. Gilmore v. United States, 552 U.S. 1119 (2008). The Petitioner-Defendant filed her pro se motion to reduce her sentence on September 19, 2016. (Doc. No. 119.) The Petitioner-Defendant is asserting that this Court should reduce her sentence, alleging that she did not have the requisite intent necessary to be convicted of second-degree intentional murder and that her sentence is therefore unreasonably high.

         DISCUSSION

         I. Timeliness

         The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) sets forth the standard that governs this Court's review of a federal prisoner's claim that his sentence was imposed in violation of the Constitution or laws of the United States. Such claims, however, may be barred by the statute of limitations set forth in 28 U.S.C. § 2255(f), which states:

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run ...

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