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United States v. Cousins

United States District Court, W.D. Virginia, Harrisonburg Division

July 26, 2016

UNITED STATES OF AMERICA
v.
EUGENE ROSS COUSINS, Defendant. Civil Action No. 5:15CV80858

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Eugene Ross Cousins, a federal inmate proceeding pro se, has moved in a fourth successive motion, to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The government has filed a motion to dismiss, arguing that the court does not have jurisdiction to review a successive § 2255 motion and the petition is time-barred. Cousins has responded, making this matter ripe for consideration. Upon review of the record, the court concludes that it lacks jurisdiction to review the motion and that the government's motion to dismiss must be granted.

         I.

         On February 22, 2006, a grand jury returned a multi-count indictment, charging Cousins with distribution of methamphetamine (Count One); possession of a firearm in furtherance of a drug trafficking offense (Counts Two, Five and Eight); possession of a firearm while being a user of controlled substances (Counts Three, Six, and Nine); and possession with intent to distribute methamphetamine ("Counts Four and Seven").

         Cousins signed a written plea agreement in which he agreed to plead guilty to Counts One through Six and the government agreed to move for dismissal of the remaining counts, Under the plea agreement, Cousins waived his right to appeal the judgment and sentence and his right to bring a § 2255 motion, but reserved the right to appeal the court's rulings on his pretrial motions to suppress certain evidence as illegally seized. On August 8, 2007, the court sentenced Cousins to 406 months' imprisonment.[1] On appeal, the United States Court of Appeals for the Fourth Circuit upheld the denial of the suppression motion and dismissed Cousins' other suppression claims as waived by the plea agreement. United States v. Cousins, 291 F.App'x 497, 499 (4th Cir. 2008).

         On July 2, 2009, Cousins filed his first § 2255 motion, raising five claims of ineffective assistance of counsel related to the suppression motion and guilty plea. The court denied relief on the motion, finding that Cousins' claims of ineffective assistance did not render his guilty plea invalid and that his plea agreement waiver of his right to file a § 2255 motion barred review of his ineffective assistance of counsel claims on the merits. Cousins filed a motion for reconsideration, which the court denied. (Order Denying Recon. at 4, ECF No. 167). On appeal, the Fourth Circuit Court of Appeals denied a certificate of appealability and dismissed the appeal. (Order at 2, ECF No. 174.) Cousins filed two additional motions for reconsideration, both of which were construed as successive § 2255 motions and denied because the court was without the authority to review them as Cousins failed to obtain certification from the Fourth Circuit. (Mots. Recons., ECF Nos. 201, 224.) Cousins appealed both orders to the Fourth Circuit without success, and the Fourth Circuit denied authorization to file a successive § 2255 motion. United States v. Cousins. 539 F.App'x 115, 116 (4th Cir. 2013); United States v. Cousins. 580 F.App'x 226 (4th Cir. 2014).

         On October 14, 2014, the Department of Justice issued an internal memorandum providing guidance to federal prosecutors about how to litigate certain cases involving plea agreements where the defendant waived the right to bring § 2255 claims of ineffective assistance of counsel. Memorandum from Deputy Att'y Gen. James M. Cole to Fed. Prosecutors, Dep't Policy on Waivers of Claims of Ineffective Assistance of Counsel (Oct. 14, 2014), available at https://www.justice.gov/file/70111/download. The memorandum provides:

For cases in which a defendant's ineffective assistance claim would be barred by a previously executed waiver, prosecutors should decline to enforce the waiver when defense counsel rendered ineffective assistance resulting in prejudice or when the defendant's ineffective assistance claim raises a serious debatable issue that a court should resolve.

Id. Following the issuance of this memorandum, Cousins filed with the Fourth Circuit a "motion under § 2244 for an order authorizing the district court to consider a second or successive application for relief under 28 U.S.C. § 2255." (Order, ECF No. 240) The Fourth Circuit denied the motion.

         Cousins then filed his current § 2255 motion arguing that counsel provided ineffective assistance by (1) advising Cousins to accept the § 2255 waiver in his plea agreement which created a conflict of interest; (2) failing to file a motion to suppress firearm evidence; (3) failing to challenge the constitutionality of his arrest; (4) failing to challenge the constitutionality of the first police search of the trunk of his car; and (5) failing to challenge the constitutionality of the second police search of the trunk of his car. Cousins also argues that the plea agreement was unconstitutional because it induced defense counsel to violate the rules of professional conduct and was tainted by fraud. On November 9, 2015, Cousins filed an amended § 2255 motion arguing an additional claim that "the government consider dismissing his second 924(c) charge, and granting him time served. . . ." (Amend. § 2255 motion 1, ECF No. 249.) The government responded, arguing that the court does not have jurisdiction to review the motion because it is successive and Cousins has not obtained a certificate of appealability from the Fourth Circuit. (Resp. 4, ECF No. 253.) In addition, the government argues that the motion is time-barred. (Id. at 7.) For the following reasons, the court agrees with the government.

         II.

         To state a viable claim for relief under § 2255, a petitioner must prove: (1) that his sentence was "imposed in violation of the Constitution or laws of the United States;" (2) that "the court was without jurisdiction to impose such a sentence;" or (3) that "the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Cousins bears the burden of proving grounds for a collateral attack by a preponderance of the evidence. Jacobs v. United States. 350 F.2d 571, 574 (4th Cir. 1965).

         A. Successive Motion

         Cousins has filed three previous § 2255 motions. In order for this court to have jurisdiction to hear a successive § 2255 motion, a defendant must receive a certificate of appealability from the Fourth Circuit.[2] 18 U.S.C. ยงยง 2255(h)(1) and (2). The Fourth Circuit denied a certificate of appealability in this case on ...


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