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Coleman v. United States

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

July 3, 2019

CYDRIC COLEMAN, ID # 37473-177, Movant,
v.
UNITED STATES OF AMERICA, Respondent.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION

          IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE [1]

         Before the Court is the Motion for Relief Fed.R.Civ.P. 60(b)(6), received on July 2, 2019 (doc. 16). Based on the relevant findings and applicable law, the motion should be DENIED.

         I. BACKGROUND

         On February 15, 2013, Cydric Coleman (Movant) filed a Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 challenging his federal conviction and sentence in Cause No. 3:10-CR-0038-O for conspiracy to distribute a controlled substance (count one), two counts of possession of a firearm in furtherance of a drug trafficking crime (counts two and four), and conspiracy to maintain drug-involved premises (count three). (See doc. 2.) He had been sentenced to concurrent terms of 120 months on the conspiracy counts, and to mandatory consecutive sentences of 5 years and 25 years on the gun counts, for a total of 480 months' imprisonment, to be followed by supervised release. (See United States v. Coleman, No. 3:10-CR-38-O (N.D. Tex.), doc. 194.) The motion to vacate raised the following grounds:

(1) trial counsel was ineffective by failing to advise him that he could plead guilty to the one-count indictment and be sentenced between 87 to 108 months without entering into a cooperation agreement with the government (ground one);
(2) he was eligible for resentencing under the Fair Sentencing Act (ground two); and
(3) Counts One and Three of the indictment are multiplicitous (ground three).

(See doc. 2 at 14-15.)[2]

         The Court found the third ground procedurally barred for failure to raise it on direct appeal[3]and denied relief on the first ground, but it granted relief on the second ground and vacated his sentence. (See docs. 10-12.) By judgment dated April 14, 2015, it resentenced Movant to concurrent terms of 60 months on the conspiracy counts, and to mandatory consecutive sentences of 5 years and 25 years on the gun counts, for a total of 420 months' imprisonment, to be followed by supervised relief. (See No. 3:10-CR-38-O, doc. 278.) Movant appealed the new sentence and also sought to appeal the partial denial of his § 2255 motion. (See id., doc. 299 at 2.) The Fifth Circuit Court of Appeals affirmed his sentence and dismissed the appeal of his § 2255 motion for lack of jurisdiction, finding that he did had not filed a timely notice of appeal or otherwise clearly evince his intent to appeal the judgment. (Id. at 3.) Movant now seeks relief from the judgment under Fed.R.Civ.P. 60(b)(6). (doc. 16.)

         II. RULE 60(b)

         Rule 60(b) of the Federal Rules of Evidence provides that a court may relieve a party from a final judgment or order for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been discovered earlier; (3) fraud, misrepresentation, or misconduct by an opposing party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or it is based on an earlier judgment that has been reversed or vacated, or that applying the judgment prospectively is no longer equitable; or (6) any other reason that justifies relief. Fed. R. Civ. Proc. 60(b)(1)-(6). A Rule 60(b) motion must be made within a reasonable time and, for reasons (1), (2), and (3), no longer than one year after judgment was entered, . See Rule 60(c)(1).

         Here, Movant filed his motion more than five years after judgment was entered in his initial habeas case and expressly invokes paragraph 6, so it arises under the “catch-all” clause of Rule 60(b)(6). See Hess v. Cockrell, 281 F.3d 212, 215-16 (5th Cir. 2002). This clause is “‘a residual clause used to cover unforeseen contingencies; that is, it is a means for accomplishing justice in exceptional circumstances.'” Steverson v. GlobalSantaFe Corp., 508 F.3d 300, 303 (5th Cir. 2007) (quoting Stipelcovich v. Sand Dollar Marine, Inc., 805 F.2d 599, 604-05 (5th Cir. 1986)). Motions under this clause “will be granted only if extraordinary circumstances are present.” Hess, 281 F.3d at 216. In Seven Elves, Inc. v. Eskenazi, 635 F.2d 396 (5th Cir. 1981), the Fifth Circuit set forth the following factors to consider when evaluating such a motion: 1) that final judgments should not lightly be disturbed; 2) that a Rule 60(b) motion should not be used as a substitute for appeal; 3) that the rule should be liberally construed in order to achieve substantial justice; 4) whether, if the case was not decided on its merits due to a default or dismissal, the interest in deciding the case on its merits outweighs the interest in the finality of the judgment and there is merit in the claim or defense; 5) whether, if the judgment was rendered on the merits, the movant had a fair opportunity to present his claims; 6) whether there are intervening equities that would make it inequitable to grant relief; and 7) any other factors relevant to the justice of the judgment under attack. Id. at 402.

         Movant alleges extraordinary circumstances based on a due process/liberty violation. (doc. 16 at 1.) He claims that the Court did not rule on the merits of his due process challenge to his conviction for multiple conspiracies (ground three), and that this failure results in a miscarriage of justice. (Id. at 2, 3.) He claims that he “raised an issue exposing a constitutional violation by charging, convicting and sentencing [him] to multiple conspiracies in violation of Due Process, as the time periods in the indictment charge one date for both alleged conspiracies in the same geographical location, with the same co-conspirating [sic] participations, durived [sic] from a single objective and agreement. Thus, one single conspiracy.” (Id. at 4-5.)

         As noted, the Court found that Movant's third ground was procedurally barred because he did not raise it on direct appeal. (See docs. 10 at 4-5, 11.) It also found that he had not asserted either cause or prejudice to overcome the procedural bar, or established a fundamental miscarriage of justice. The Court specifically found, however, that even if the claim was not procedurally barred, it still lacked merit because Movant had been convicted of two separate offenses requiring proof of different elements, so charging him with both conspiracies did not violate the constitutional prohibition against double jeopardy. (See doc. 10 at 5 n.2 (citing United States v. Tucker, 345 F.3d 320, 337 (5th Cir. 2003) (“The test for determining whether the same act or transaction constitutes two offenses or only one is whether conviction under each statutory provision requires proof of an additional fact which the other does not.”); doc. 11.) It noted that a conspiracy to distribute a controlled substance requires proof that two or more persons reached ...


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