United States District Court, D. Minnesota
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
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