United States District Court, E.D. Virginia, Richmond Division
JAMES R. SPENCER, Senior District Judge.
THIS MATTER is before the Court on Denard Edward Carrington's ("Carrington") pro se Amended Motion to Alter and Amend Judgment (ECF No. 97). On March 20, 2013, this Court entered an Order dismissing Carrington's previously filed a Motion to Vacate pursuant to 28 U.S.C. § 2255 ("§ 2255"). Carrington now asks the Court to reconsider its decision under Federal Rule of Civil Procedure 59(e). For the reasons stated below, the Court will GRANT IN PART Carrington's Motion as to Claim Two. Upon further consideration, Claim Two will be DENIED.
On May 19, 2009, a federal grand jury returned a three-count Indictment charging Petitioner with Possession with the Intent to Distribute 500 grams or more of Cocaine Hydrochloride, in violation of 21 U.S.C. § 841(a); Possession of a Firearm in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c); and Possession of Firearms/ammunition by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1). Petitioner was arraigned on the Indictment on June 4, 2009, and a jury trial was scheduled for August 3, 2009.
A federal grand jury returned a five-count Superseding Indictment against Petitioner on July 20, 2009, charging Petitioner with: Conspiracy to Distribute Cocaine Hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 846 ("Count One"); Possession with the Intent to Distribute 500 grams or more of Cocaine Hydrochloride, in violation of 21 U.S.C. § 841(a) ("Count Two"); Possession of Firearms in Furtherance of a Drug Trafficking Crime, in violation of 18 U.S.C. § 924(c) ("Count Three"); Possession of Firearms/ammunition by a Convicted Felon, in violation of 18 U.S.C. § 922(g)(1) ("Count Four"); and Possession of an Unregistered Firearm, in violation of 26 U.S.C. § 5681(d) ("Count Five"). Petitioner was arraigned on the Superseding Indictment on July 31, 2009, and upon his motion to continue, the trial was rescheduled for October 5, 2009.
The charges stemmed from the execution of a search warrant by law enforcement on April 21, 2009 of the home that Petitioner shared with his girlfriend. From the search of the master bedroom, police recovered an AK 47 assault rifle; a Mac-10 machine gun; a Glock Model 31, .357 caliber pistol; and assorted ammunition. Police also recovered cocaine hydrochloride, three digital scales with residue, drug-packaging materials, a money counter, $30, 000 in U.S. currency underneath Petitioner's mattress, and a safe inside the bedroom closet containing an additional $25, 500 in U.S. currency.
Prior to the start of the two-day trial, the Government dismissed Count One, and Petitioner pled guilty to Possession of Firearms/ammunition by a Convicted Felon under Count Four. Before the second day of the trial commenced, Petitioner pled guilty to Count Two, Possession with the Intent to Distribute 500 grams or more of Cocaine Hydrochloride, and to Count Five, Possession of an Unregistered Firearm. Petitioner proceeded to trial and was convicted of Count Three, Possession of Firearms in Furtherance of a Drug Trafficking Crime. Specifically, the jury found that Petitioner possessed an SKS assault rifle; a Mac-10 Machine Gun; a Glock 31, .357 caliber handgun; and ammunition.
On January 14, 2010, the Court sentenced Petitioner to 60 months' imprisonment on Counts Two, Four, and Five, to run concurrently, and to 360 months' imprisonment on Count Three, to run consecutively to the 60-month term of imprisonment on Counts Two, Four, and Five, for a total of 420 months' imprisonment. Petitioner filed an appeal on January 15, 2010, arguing that the Government failed to offer sufficient evidence of a nexus between the firearms found in his residence and the furtherance of his drug activities. The Fourth Circuit affirmed Petitioner's conviction and the Court's judgment, but remanded the matter to correct a clerical error. Petitioner filed a Motion for Declaratory Judgment on May 18, 2011 challenging his conviction for Count Three under 18 U.S.C. § 924(c)(1)(B)(ii). After the Court denied this Motion, Petitioner filed a Motion for Reconsideration, which was also denied. Petitioner appealed the denial of his Motion for Declaratory Judgment on June 20, 2011, and the Fourth Circuit again affirmed the Court's judgment on August 23, 2011.
Carrington then filed a Motion to Vacate under 28 U.S.C. § 2255, raising the following five (5) grounds for relief:
1. In light of the subsequently decided United States v. O'Brien, 130 S.Ct. 2169 (2010), Petitioner's conviction and sentence under § 924(c)(1)(B)(ii) is unlawful, and his counsel was ineffective in failing to object.
2. The Court committed prejudicial error by instructing the jury that Petitioner's guilty plea to Count Two established the first element of Count Three, and Petitioner's counsel was ineffective in failing to object.
3. Under O'Brien, Counsel was ineffective in misadvising Petitioner on the § 924(c)(1)(B)(ii) elements, leading Petitioner to waive his right to testify based on a flawed understanding of the elements of the offense.
4. The Court committed prejudicial error by disclosing to the jury that Petitioner pled guilty to Count Two, thus violating his right against self-incrimination, and Petitioner's ...