United States v. Williams

          Jermaine Reggie Smith Williams, Petitioner-Defendant, Pro Se.

          Benjamin Bejar, Assistant United States Attorney, United States Attorney's Office, counsel for the Government.

          MEMORANDUM OPINION AND ORDER

          DONOVAN W. FRANK UNITED STATES DISTRICT JUDGE

         INTRODUCTION

         This matter is before the Court on Petitioner-Defendant Jermaine Reggie Smith Williams' (“Petitioner-Defendant”) pro se motion to set aside judgment pursuant to Fed.R.Civ.P. 60(b)(3) and (6) (Doc. No. 86) and subsequent pro se motion for discovery under Fed.R.Civ.P. 26 (Doc. No. 95). The United States of America (the “Government”) opposes Petitioner-Defendant's motions. (Doc. No. 98.)

         Petitioner-Defendant seeks first an order setting aside this Court's earlier denial of his first motion for habeas relief under 28 U.S.C. § 2255, alleging that under Fed.R.Civ.P. 60(b)(3) and (6) he is entitled to relief because his previous counsel submitted a perjurious affidavit in response to Petitioner-Defendant's motion. Petitioner-Defendant also moves for an order for discovery, specifically seeking production of recordings and to depose a witness in connection to his allegations of perjury. The Government consolidates its opposition to Petitioner-Defendant's motions into one response, arguing both motions should be dismissed, without issuance of a certificate of appealability, because they constitute an unauthorized successive § 2255 motion. The Government further argues that even if viewed under the Rules as advanced, Petitioner-Defendant's motions would fail because his grounds for relief lack merit.

         For the reasons set forth below, the Court denies Petitioner-Defendant's motion.

         BACKGROUND

         Only an abbreviated version of the procedural history and record is provided because this Court examined both at length in its previous order. (Doc. No. 84.)

         Pursuant to a written plea agreement (Doc. No. 36 “Plea Agreement”), on December 20, 2016, Petitioner-Defendant entered a plea of guilty to Count 1 of a two-count indictment. (Doc. No. 35.) A Presentence Investigation Report (“PSR”) was ordered at the change of plea hearing (id.), and both parties filed responses (Doc. Nos. 48, 50). As agreed in the Plea Agreement, the PSR included calculations under the United States Sentencing Guidelines (the “Guidelines”) totaling an offense level of 21 and a criminal history category of V, which resulted in an advisory guidelines range of 70 to 87 months. (Doc. No. 43 “PSR.”) Neither Petitioner-Defendant nor the Government objected to the PSR. (Doc. Nos. 48, 50.)

         At sentencing, this Court adopted the PSR without change (Doc. No. 57) and sentenced Petitioner-Defendant to 70 months imprisonment to be followed by 3 years of supervised release (Doc. No. 56). Count 2 of the indictment was dismissed on the motion of the Government. (Id.)

         Petitioner-Defendant did not file an appeal of his conviction or sentence. He filed a timely § 2255 motion, which the Government opposed. (Doc. Nos. 64, 66.) Petitioner-Defendant additionally filed a reply to the Government's response (Doc. No. 69), a motion to amend his § 2255 petition (Doc. No. 70), a motion for an extension to file a “supplemental/amended” § 2255 motion (Doc. No. 72), which was initially granted (Doc. No. 75), and a motion for discovery seeking “[a]ll Brady and Jencks [m]aterial” and materials concerning search warrants (Doc. No. 73). Petitioner-Defendant's motions alleged that his trial counsel was ineffective because his counsel wrongly advised him to sign the Plea Agreement and failed to object to the PSR, both of which included erroneous Guidelines calculations. (Doc. No. 64 at 9, 10.) The Government filed a memorandum in opposition to Petitioner-Defendant's subsequent motions. (Doc. No. 82.) After a Government motion for an order finding waiver of attorney-client privilege was granted (Doc. Nos. 78, 80), Petitioner-Defendant's prior counsel, Attorney Kevin DeVore (“Attorney DeVore”) filed an affidavit in response (Doc. No 81 (the “Affidavit”). Petitioner-Defendant's prior motions were all denied, and no certificate of appealability was issued. (Doc. No. 84.)

         Petitioner-Defendant filed his pro se motion to set aside judgment pursuant to Fed.R.Civ.P. 60(b)(3) and (6) (Doc. No. 86) with supporting exhibits (Doc. No. 88) on December 3, 2018, followed by his pro se motion for discovery under Fed.R.Civ.P. 26 (Doc. No. 95) on January 7, 2019. The Government filed its response addressing both motions on January 17, 2019. (Doc. No. 98.)

         In its previous order, this Court rejected Petitioner-Defendant's arguments as to the calculation and application of the Guidelines, the alleged ineffectiveness of his trial counsel, his underlying ...