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Wyche v. United States

April 23, 2004

GARY WYCHE, PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos.: 199, 200, 207, 211, 227

MEMORANDUM OPINION GRANTING THE PETITIONER LEAVE TO FILE AN AMENDED SECTION 2255 MOTION; DENYING THE PETITIONER'S MOTION FOR APPOINTMENT OF COUNSEL; GRANTING THE RESPONDENT'S MOTIONS TO DISMISS; AND DENYING THE PETITIONER'S SECTION 3582 MOTION

I. INTRODUCTION

The pro se petitioner initiated this habeas action by filing a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. The matter now comes before the court on the respondent's motions to dismiss as untimely the petitioner's section 2255 motion. Also before the court are the petitioner's motions for leave to file his amended section 2255 motion, for the appointment of counsel pursuant to section 2255 and 18 U.S.C. § 3006A(a)(2)(B), and for modification of his sentence under 18 U.S.C. § 3582(c). The court grants the petitioner leave to file his amended section 2255 motion to allow for a final resolution of the case. In addition, the court denies the petitioner's motion for appointment of counsel because such relief is not in the interests of justice. Furthermore, the court grants the respondent's motions to dismiss because the applicable statute of limitations bars the petitioner from asserting his section 2255 claims. Finally, the court denies the petitioner's section 3582 motion because he presents no argument supporting his conclusory allegation that the sentencing judge failed to follow proper sentencing procedures.

II. BACKGROUND

The petitioner participated in an organization responsible for importing cocaine from New York City and distributing it here in the District of Columbia. United States v. Harris, 959 F.2d 246, 249 (D.C. Cir. 1992) (per curiam). At the end of his trial in the summer of 1989, a jury found the petitioner guilty of conspiracy to distribute and possession with the intent to distribute cocaine and cocaine base, conspiracy to carry and use firearms during and in relation to a drug-trafficking offense, use of juveniles in drug trafficking, assault with a dangerous weapon, unlawful use of a firearm in aid of drug trafficking, and unlawful possession of a firearm by a convicted felon. Pet'r Am. § 2255 Mot., Ex. A ("PSR") at 12. At his sentencing, another member of this court grouped together all of the counts – with the exception of the count for unlawful use of a firearm in aid of drug trafficking – under the conspiracy count, thereby sentencing the petitioner to a life term of imprisonment. See generally Sentence Tr. ("Tr."). As for the use-of-a-firearm count, the court sentenced the petitioner to a consecutive five-year imprisonment term followed by a ten-year term of supervised release. Id.; Harris, 959 F.2d at 266.

The petitioner appealed his sentence in part on the ground that the district court "miscalculated the base offense level for his drug conspiracy conviction" by failing to correctly determine the amount of drugs for which the defendant was accountable. Harris, 959 F.2d at 264. The D.C. Circuit found merit in the petitioner's argument and remanded the case for the district court to verify the attributable drug amount. Id. at 264-65. On remand, the district court determined that the petitioner was responsible for more than 500 grams of cocaine. Cr. Docket No. 89-0036-05 (HHG). Utilizing this drug amount, the district court re-calculated the petitioner's base offense level and imposed the same sentence as before the appeal. Tr. at 11-12; Resp't Supp'l Mot. at 2. The petitioner once again appealed, but this time the D.C. Circuit affirmed the sentence on November 12, 1993. United States v. Wyche, 10 F.3d 13 (D.C. Cir. 1993).

On April 22, 1996, the petitioner initiated a habeas action by filing a motion to vacate his sentence under 28 U.S.C. § 2255. The petitioner, however, moved the court to dismiss that case, and the sentencing judge granted his motion for voluntary dismissal on June 2, 1997. Cr. Docket No. 89-0036-05 (HHG).

Sometime before June 27, 2001, the petitioner dropped a "placeholder" section 2255 motion in the prison mail collection box, which the Clerk of the Court deemed filed on June 29, 2001.*fn1 Traverse I at 2; Resp't Supp'l Mot. at 3. On the heels of that submission, the petitioner moved for leave to file an amended section 2255 motion.

Subsequently, on July 9, 2001, the petitioner moved for appointment of counsel under 18 U.S.C. § 3006A(a)(2)(B) and 28 U.S.C. § 2255. Several days later, the petitioner lodged his proposed amended section 2255 motion, arguing that a retroactive application of the Supreme Court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), calls for vacating either his conviction or his sentence. Pet'r Am. § 2255 Mot. at 25-26. The petitioner also alleges ineffective assistance of counsel during trial and the direct-appeal process. Id. at 11-15, 26.

On February 8, 2002, the Calendar Committee assigned the case to this member of the court. On February 25, 2002, the respondent filed a motion to dismiss the petitioner's placeholder motion as untimely under the applicable statute of limitations. Resp't Mot. at 2-3.

The petitioner then proceeded to submit several supplemental filings. First, in July 2002, he filed a notice of supplemental authority. Next, in March 2003, the petitioner filed two submissions, each styled as a "traverse." Traverse I; Traverse II. Then, in May 2003, he filed a motion for modification of his sentence pursuant to 18 U.S.C. § 3582(c), claiming that a retroactive application of a reduction in the U.S. Sentencing Guidelines entitles him to a lesser sentence. Pet'r § 3582 Mot. at 3.

Soon thereafter, the respondent filed a supplemental motion to dismiss, which addresses the petitioner's amended section 2255 motion and traverses, along with an opposition to the petitioner's section 3582 motion. On October 16, 2003, the petitioner followed up with a third traverse, arguing that the principle of equitable tolling prevents the running of the statute of limitations on his section 2255 claims, and that due process ...


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