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Anderson v. United States

United States District Court, N.D. Texas, Dallas Division

November 2, 2017

JOSEPH DEMONT ANDERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION AND ORDER

          REED O'CONNER, UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner's petition to vacate, set-aside, or correct sentence pursuant 28 U.S.C. § 2255. For the foregoing reasons, the Court dismisses the petition as barred by the statute of limitations.

         I.

         On May 23, 2012, a jury found Petitioner guilty of bank robbery in violation of 18 U.S.C. § 2113(a) and 2. On September 7, 2012, the Court sentenced Petitioner to 210 months' imprisonment.

         Prior to sentencing, on September 4, 2012, Petitioner filed a motion for new trial under Fed. R. Crim. P. 33. (ECF Crim. No. 80.) He alleged that (1) his non-testifying co-defendant, Jeremy Butler, who was undergoing a competency examination at the time, told fellow inmates that Petitioner did not know that he was going to rob the bank; (2) Teddy Rogers, the unindicted passenger in Petitioner's vehicle during the robbery, would have testified-absent a threat of prosecution from the government-that he and Petitioner lacked knowledge that Butler was going to rob the bank; and (3) the government's comment in closing argument that Teddy Rogers was not indicted because he was facing a life sentence in state court was untrue and created a manifest injustice.

         At sentencing, the Court denied Petitioner's motion for new trial. The Court found that the evidence against Petitioner “was overwhelming”; that the inmates' statements were inadmissible and not “likely to produce an acquittal”; that Petitioner had not produced newly discovered evidence; that it had sustained Petitioner's objection to the government's closing argument and cured any prejudice with an instruction to the jury; and that Teddy Rogers made a counseled decision not to testify. (ECF Crim. No. 97 at 15-16.)

         After sentencing, on September 21, 2012, Petitioner filed a second motion for new trial. (ECF Crim. No. 89.) He alleged newly discovered evidence that co-defendant Butler's counsel was seeking a competency hearing for Butler. Petitioner claimed Butler lacked the mental capacity to form an intent to commit bank robbery, which he argued supported his claim that he was unaware Butler intended to rob a bank. The Court denied the motion in a written order. (ECF Crim. No. 93.) The Court concluded that Petitioner had “failed to show that the post-trial finding that Butler is incompetent is material, not merely cumulative or impeaching, and would probably produce an acquittal.” (Id. at 3 (citing United States v. Gonzalez, 661 F.2d 488, 496 (5th Cir. 1981)).

         On September 23, 2012, Petitioner filed a direct appeal. On June 20, 2014, the Fifth Circuit affirmed his conviction and sentence, as well as the denial of his motions for new trial. See United States v. Anderson, 755 F.3d 782 (5th Cir. 2014). Petitioner did not file a petition for writ of certiorari.

         On June 25, 2016, Petitioner filed the instant § 2255 petition. He argues:

1. His sentence is unlawful under Johnson v. United States, 135 S.Ct. 2551 (2015);
2. He is actually innocent; and
3. The prosecutor committed misconduct during closing arguments.

         On August 7, 2017, Petitioner filed a supplemental petition arguing his counsel was ineffective for failing to challenge the career offender provisions under §§ 4B1.1 and 4B1.2 of the sentencing guidelines. On August 18, 2016, and July 18, 2017, the government filed motions to dismiss the petition as barred by the statute of limitations. On August 17, 2017, the government ...


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