United States District Court, W.D. Virginia, Harrisonburg Division
Glen E. Conrad United States District Judge
Nicodemus Grady, a federal inmate proceeding pro se, has
submitted a pleading that he titles: "Motion to
reconsider Title 28 U.S.C. § 2255" (ECF No. 91).
Grady contends that the court should reopen his original
§ 2255 motion to consider whether his offense conduct is
punishable under 21 U.S.C. § 841(b)(1)(C) in light of
United States v. Burrage, ___U.S.___, 134 S.Ct. 881
(2014). After review of the record in this case and
Grady's current submission, the court concludes that his
motion must be denied.
14, 2010, Grady pleaded guilty, pursuant to a plea agreement,
to one count of distribution of heroin resulting in serious
bodily injury, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(C). The court sentenced Grady to 262
months in prison, and Grady did not appeal. In November 2015,
Grady filed a §2255 motion, docketed as Case No.
7:14CV80780, seeking relief under the Burrage
decision and raising other claims. The court denied the
§ 2255 motion as untimely filed and without merit.
United States v. Grady, No. 5:10CR0002, 2015 WL
4773236 (W.D.Va. Aug. 12, 2015), appeal dismissed,
627 F.App'x 193 (4th Cir. 2015).
current motion, Grady contends that the court should reopen
his prior § 2255 motion, because two courts of appeals
have now held that Burrage does apply retroactively
to cases on collateral review. See Santillana v.
Upton, 846 F.3d 779, 784 (5th Cir. 2017) (holding that
Burrage is retroactively applicable); Krieger v.
United States, 842 F.3d 490, 500 (7th Cir. 2016) (same).
Because Grady's current motion claims that his initial
§ 2255 proceedings involved procedural error, his motion
may be addressed as one seeking reconsideration of the
court's past ruling on timeliness. See Gonzalez v.
Crosby, 545 U.S. 524, 531-32 (2005) (recognizing that
motions to reconsider in a § 2255 case must be construed
as a successive § 2255 if it challenges validity of
addressing Grady's prior § 2255 motion, the court
noted that Burrage "likely does not apply
retroactively to cases on collateral review."
Grady, 2015 WL 4773236, at *4 (citing other cases).
The subsequent court decisions that Grady now cites rule
otherwise. Grady's motion seeking reconsideration of his
prior § 2255 must be denied, nevertheless, because this
court also held that Grady's claim under Burrage
claimed that, under Burrage, the drug he distributed
was not an independently sufficient cause of injury because
the victim had also ingested other drugs and alcohol. In
Burrage, the Court held that "where use of the
drug distributed by the defendant is not an independently
sufficient cause of the victim's death or serious bodily
injury, a defendant cannot be liable under the penalty
enhancement provision of 21 U.S.C. § 841(b)(1)(C)
unless such use is a but-for cause of the death or
injury." Burrage, 134 S.Ct. at 892 (emphasis
added). This court previously found that the evidence in
Grady's case supported his conviction under this
"but for" causation test. Grady, 2015 WL
4773236, at *3. Specifically, the court found that Grady
presents no evidence showing that the alcohol or narcotics
were an intervening cause of [the victim's] serious
bodily injury. Grady's argument fails because the court
finds that evidence supports Grady's conviction even
under the "but for" causation test mandated by
Burrage. At his guilty plea hearing, Grady agreed
that [the victim's] overdose was "the direct result
of her heroin use that came from Mr. Grady." (Plea
Hr'g Tr. at 15-16, ECF No. 71 .) Thus, unlike the
defendant in Burrage, Grady admitted in the guilty
plea colloquy that [the victim's] bodily injury resulted
from the heroin he distributed, and Grady is bound by his
representations. See Beck v. Angelone, 261 F.3d 377,
396 (4th Cir.2001) (noting that, absent clear and convincing
evidence to the contrary, petitioner was bound by his
representations at the guilty plea colloquy).
Gradv, 2015 WL 4773236, at *3 (footnote in
on the foregoing, Grady fails to show that the court's
denial of his § 2255 motion was based on procedural
error or that the court's prior ruling must be revisited
under the new case law Grady cites. Accordingly, the court
will deny the motion. A separate order will issue herewith.
clerk is directed to send copies of this memorandum opinion
and accompanying order to the defendant.
 To the extent that Grady claims that
he is actually innocent of his charge, based on
Burrage, that claim fails for the same reasons.
Grady has not shown that he was actually innocent of
providing heroin to [the victim] that was the "but