United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
KAREN K. CALDWELL, Chief District Judge.
The defendant, William Sean Faison, has filed a number of motions that are now ripe for review. They are: a motion to reconsider the Court's April 25, 2014 opinion and order denying his motion to vacate under 28 U.S.C. § 2255 (DE 788); Faison's amended motion to reconsider the Court's April 25, 2014 opinion and order and motion to withdraw his guilty plea (DE 798); Faison's motion for retroactive sentence and/or motion to supplement (DE 790); and Faison's motion to amend/correct his motion for retroactive sentence (DE 796). For the following reasons, the Court will deny Faison's motion to reconsider (DE 788) and his amended motion to reconsider and motion to withdraw his guilty plea (DE 798), will grant in part and deny in part Faison's motion for retroactive sentence and/or motion to supplement (DE 790), and will grant his motion to amend/correct his motion for retroactive sentence (DE 796).
A more complete description of the facts and procedural history can be found in the Court's opinion and order entered on April 25, 2014 (DE 786). Accordingly, only facts necessary to determine Faison's pending motions are set forth in this opinion.
On May 24, 2010, Faison pleaded guilty to one count of conspiracy to distribute and possession with intent to distribute oxycodone and methadone and one count of money laundering. (DE 466, 468). After Faison withdrew his objections to the presentencing report concerning the quantity of pills in question, the Court sentenced Faison to 132 months of imprisonment, which was a downward variance from the sentencing guidelines. (DE 603, pp. 9, 23). There was no plea agreement.
On May 12, 2011, Faison filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255, claiming that his retained counsel, Sheldon Halpern, failed to file a notice of appeal despite Faison's specific request that one be filed. (DE 599). Faison also filed a motion for leave to amend his motion to vacate seeking to add an additional ground for his motion. (DE 620). Faison's motions were referred to Magistrate Judge Candace Smith, who recommended that Faison's initial motion be granted and that his motion to amend be denied as moot. (DE 667).
The Court adopted the report and recommendation, overruled Faison's objections, and re-entered the same judgment so that Faison could appeal. (DE 677, 678). With regard to Faison's motion for leave to amend his motion to vacate to add an additional ground, the Court found that "[b]ecause the Court will be vacating its judgment and entering a new judgment, a future §2255 motion will be the first § 2255 motion on the new judgment." (DE 677). Faison then appealed to the Sixth Circuit, and his appeal was denied. (DE 722).
On May 3, 2013, Faison filed another motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255, alleging that his court-appointed counsel, Cullen Gault, was ineffective at the change of plea hearing on January 25, 2010, when he did not inform the Court or the Government about Faison's signed plea agreement and sought a continuance rather than advising Faison to go forward with the plea. (DE 727). At the hearing, Mr. Gault informed the Court that he had been contacted by Mr. Halpern, who indicated that Faison had contacted Mr. Halpern about representing him the case. (DE 351, p. 4-5). Mr. Gault then asked the Court for a continuance, which the Court granted. (DE 351, p. 6). Faison's § 2255 motion was referred to Magistrate Judge Edward Atkins, who recommended that the matter be transferred to the Sixth Circuit Court of Appeals for a determination of whether Faison would be granted authorization to file a second or successive habeas petition. (DE 728). Faison filed objections to the Magistrate Judge's report and recommendation (DE 729). Then he filed a motion to amend his objections and/or a motion to amend his § 2255 motion, arguing that the he was unlawfully sentenced under the Supreme Court's decision in Alleyne v. United States, 133 S.Ct. 2151 (2013). (DE 742).
The Court declined to adopt the Magistrate Judge's report and recommendation, finding that the Court's previous order entered a new judgment and advised Faison that a future § 2255 motion would be considered the first § 2255 motion on the new judgment. (DE 786, p. 3). The Court then considered Faison's § 2255 motion, and held that even as amended, it should be denied. (DE 786). Faison now asks the Court to reconsider its denial of his § 2255 motion.
A. Motion to Reconsider (DE 788)
Motions to reconsider are evaluated under the same standard as a motion to alter or amend a judgment under Rule 59(e). Howard v. Magoffin Cnty. Bd. of Educ., 830 F.Supp.2d 308, 319 (E.D. Ky. 2012) (citing Keith v. Bobby, 618 F.3d 594, 597-98 (6th Cir. 2010)). To succeed, a party must show one of the following: "(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice." Id. (quoting Leisure Caviar, LLC v. U.S. Fish & Wildlife Serv., 616 F.3d 612, 615 (6th Cir. 2010)). However, "[a] motion under Rule 59(e) is not an opportunity to reargue a case." Sault Ste. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).
In his first motion to reconsider, Faison contends that he was unlawfully sentenced under the Supreme Court's ruling in Alleyne v. United States, 133 S.Ct. 2151 (2013). (DE 788). Mr. Faison appears to argue that because his sentencing range under the Sentencing Guidelines was increased by the number of pills involved, the quantity of drugs was an "element" that must have been presented to the grand jury in the indictment. This is the same argument Faison made, and the Court rejected, in his motion to amend his objections and/or a motion to amend his § 2255 petition. (DE 742, 786). Faison confuses the sentencing range, as determined by the Sentencing Guidelines, with the mandatory minimum penalty required by statute. It is undisputed "that facts that increase mandatory minimum sentences must be submitted to the jury" and "found by the jury beyond a reasonable doubt." Alleyne, 133 S.Ct. at 2163. Here, however, Faison was not sentenced under a mandatory minimum and did not go to trial, so Alleyne is inapplicable. Further, Faison cannot now contest the quantity of pills involved because he withdrew his objection to the quantity of pills at sentencing and accepted the applicable sentencing guideline range. (DE 603, pp. 3, 9). In any event, in his amended motion to reconsider (DE ...