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United States v. Howard

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

January 2, 2020

UNITED STATES OF AMERICA
v.
COREY MCKINZIE HOWARD, Defendant.

          MEMORANDUM OPINION

          GLEN E. CONRAD SENIOR UNITED STATES DISTRICT JUDGE

         Corey McKinzie Howard, a federal inmate proceeding pro se, has filed a "Motion for Relief Under Federal Rules of Civil Procedure Rule 60(b)," arguing that the dismissal of his initial motion to vacate, set aside or correct the sentence under 28 U.S.C. § 2255 should be revisited on the ground of equitable tolling. After review of the lengthy motion, the accompanying exhibits, and the record, the court concludes that the motion must be denied.

         I.

         Howard pleaded guilty in March of 2009 to possessing more than 50 grams of cocaine base with the intent to distribute (Count Two) and possessing a firearm in furtherance of a drug trafficking crime and using and carrying a firearm during and in relation to a drug trafficking crime (Count Five). The properly executed plea agreement stated, "I am pleading guilty as described above because I am in fact guilty." Plea Agr. 2, ECF No. 65. In exchange for Howard's guilty plea under this agreement, the government moved for dismissal of the five other counts in the superseding indictment, agreed that a base offense level of 32 under § 2D 1.1 of the United States Sentencing Guidelines was appropriate for Howard, and agreed not to argue for enhancements of that level. In executing the plea agreement, Howard also accepted its provision whereby he waived "all rights, whether asserted directly or by a representative, to request or receive from any department or agency of the United States any records pertaining to the investigation or prosecution of this case, including without limitation any records that may be sought under the Freedom of Information Act" ("FOIA waiver"). Id. at 8. At sentencing, the court granted a two-point reduction for acceptance of responsibility, giving Howard a sentencing range of 121 to 151 months on Count Two.

         In July 2009, the court sentenced Howard to 136 months on Count Two, to be followed by the statutory, mandatory consecutive 60-month sentence on Count Five, for a total sentence of 196 months in prison. He did not appeal.

         Howard filed his first § 2255 motion in September 2012. The court notified him that the § 2255 motion appeared to be untimely filed and gave him an opportunity to file any additional information on the issue of timeliness, which he did. Ultimately, however, the court dismissed the § 2255 motion under § 2255(f) as untimely filed. United States v. Howard, No. 7:08CR00023, 2012 WL 5986963 (W.D. Va. Nov. 29, 2012). Howard did not appeal this judgment.

         In the instant motion, Howard contends that the court should reopen his initial § 2255 motion, based on evidence he allegedly could only recently discover because prosecutors had fraudulently concealed it. His fraudulent concealment theory is: at arraignment and detention hearings in March 2008, two different prosecutors and a government witness allegedly misstated the amount of crack cocaine seized during the investigation of Howard's offenses; the prosecutors included the FOIA waiver in the plea agreement; and that provision "prevented" Howard from obtaining discovery of the fraud that allegedly occurred during the hearings in March 2008. Based on this alleged intentional concealment of information, Howard contends that he is entitled to equitable tolling of the limitations period in § 2255(f) and to full consideration of his § 2255 claims on their merits.

         Howard contends that his exhibits demonstrate his due diligence in attempting to obtain documentation in support of his equitable tolling argument. The exhibits and the record indicate that in 2014, Howard wrote to the district court, asking to obtain documentation related to his case. The clerk responded by sending him some court documents he had requested, but notified him that other requested information, related to the government's investigation, was not available from the court's record. In 2015, Howard asked a prior attorney for documentation, but the attorney did not have a copy of the requested document-a lab analysis. In 2016, Howard made a FOIA request for documents from the Department of Justice ("DOJ"). That request was denied, based on Howard's plea agreement waiver of FOIA rights. In response to a subsequent FOIA request Howard made in March 2018, a DOJ official responded that some requested documents were exempt from FOIA disclosure for privacy reasons. Howard signed and dated his Rule 60(b) motion on August 12, 2019.

         II.

         Under Rule 60(b), a party may move to be relieved of a final judgment under appropriate circumstances. Howard's claim of fraudulent concealment falls under Rule 60(b)(3), which authorizes relief from a final judgment where the court finds "fraud (whether previously called intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party." Fed.R.Civ.P. 60(b)(3). A motion under subsection (3) must be brought "no more than a year after the entry of the judgment" being challenged. Fed.R.Civ.P. 60(c)(1). As stated, the court entered final judgment on Howard's § 2255 motion in November 2012, but he did not file his current motion under Rule 60(b)(3) until August 2019, nearly seven years later. Therefore, the court finds that his motion must be denied as untimely filed under Rule 60(c)(1).[1]

         Howard contends that, in the alternative, his motion arises under Rule 60(b)(6). Subsection (b)(6) authorizes a court to grant relief from final judgment on a motion that (i) states a "reason that justifies relief," (ii) is not premised on one of the grounds for relief enumerated in subsection (b)(1) through (b)(5, ) and (iii) is made "within a reasonable time." Fed.R.Civ.P. 60(b)(6), (c)(1). Howard's motion fails under (ii) and (iii), because it is premised on fraud, the ground for relief named in subsection (b)(3), and it was not filed within a reasonable time for purposes of subsection (b)(3).

         Moreover, Howard simply has not stated any reason for relief from the 2012 dismissal of his § 2255 claims as untimely filed. Specifically, he does not show any basis for applying equitable tolling so that the court could address the merits of his 2012 claims under § 2255.

         A person convicted of a federal offense has one year to file a § 2255 motion, starting from ...


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