United States District Court, D. New Jersey
ALAN D. GARRETT, Petitioner,
UNITED STATES, Respondent. No. 11-242 (JBS).
Alan D. Garrett FCI Butner, Butner, NC, Pro Se Petitioner
Matthew T. Smith, AUSA, Robert Stephen Stigall, AUSA, Office of the U.S. Attorney, Camden, NJ, Attorneys for Respondent.
JEROME B. SIMANDLE, Chief District Judge.
Petitioner Alan D. Garrett pled guilty to 18 U.S.C. 922(g)(1), possession of a firearm by a convicted felon, and this Court sentenced him to 77 months imprisonment, the bottom of the Sentencing Guidelines range. He timely filed this habeas petition under 28 U.S.C. § 2255 arguing that his conviction was invalid because, inter alia, the Court lacked jurisdiction, he was actually innocent, his counsel was ineffective, essential elements of the offense were missing, unlawfully obtained evidence was used, there were speedy trial act violations, and he was entitled to a downward departure. For the reasons discussed herein, the Court finds that Garrett waived his right to petition for § 2255 relief and that, in any event, none of his grounds have merit, and Garrett's petition will be denied.
A. Factual Background
On August 20, 2010, at approximately 10:45 p.m., two Camden Police officers received information that shots were fired at the 3100 block of Westfield Avenue in Camden, New Jersey. (Def. Ex. A, Pre-Sentence Investigation Report ("PSR"), ¶ 10.) When the officers arrived at the 3100 block of Westfield Avenue, they saw a black male, later identified as Alan Garrett, leaning on a fence. (PSR ¶ 10.) Garrett walked away from the officers and began staggering and stumbling. (PSR ¶ 10.) The officers approached Garrett to determine if he had been injured in the shooting and ordered him to stop. (PSR ¶¶ 10-11.) Garrett ran away, and the officers tackled him. (PSR ¶ 11.) The firearm fell to the sidewalk and the officers retrieved it. (PSR ¶ 11.) The firearm was a Smith & Wesson.40 caliber pistol, bearing serial number MSE2992, loaded with seven bullets. (PSR ¶ 12.) Garrett, who appeared intoxicated, was arrested. (PSR ¶ 11.)
According to records from the Bureau of Alcohol, Tobacco, and Firearms ("ATF"), the firearm was manufactured in Massachusetts. (PSR ¶ 13.)
B. Procedural History
On February 1, 2011, Garrett was charged with being a felon in possession of a firearm. [Cr. No. 11-242, Docket Item 1.] He was arrested on February 7, 2011 and made an initial appearance before a U.S. Magistrate Judge on February 8, 2011. On February 8, 2011, an Assistant Federal Public Defender was appointed to represent him. [Cr. No. 11-242, Docket Item 7.] On February 8, 2011, the Magistrate Judge granted a joint application from both prosecution and defense counsel to continue and exclude time under the Speedy Trial Act from February 8, 2011 through April 8, 2011. [Cr. No. 11-242, Docket Item 11.] On April 13, 2011, a grand jury sitting in Camden returned a one-count indictment against Garrett for violating 18 U.S.C. § 922(g)(1), which prohibits anyone who has been convicted of a crime punishable by over one year of imprisonment from possessing a firearm in or affecting commerce. [Cr. No. 11-242, Docket Item 12.]
After four continuances, Garrett pleaded guilty on October 4, 2011. Garrett's plea agreement stipulated, inter alia, that "Garrett knows that he has and... voluntarily waives, the right to file any appeal, any collateral attack, or any other writ or motion, including but not limited to an appeal under 18 U.S.C. § 3742 or a motion under 28 U.S.C. § 2255, which challenges the sentence imposed by the sentencing court if that sentence falls within or below the Guidelines range that results from the agreed total Guidelines offense level of 21." (Def. Ex. B at 8 ¶ 8.) Garrett attested that "[m]y attorney and I have discussed the letter and all of its provisions, including the provisions addressing the charges, sentencing, the stipulations, [and] waiver... consequences." (Id. at 6.)
Before accepting the guilty plea, the Court verified its factual basis. Garrett admitted under oath that he was at Westfield Ave. in Camden at 10:45 p.m. on August 20, 2010; that he possessed the Smith & Wesson.40 caliber pistol with serial number MSE2992; that he was holding the firearm in his waistband; that he knew he possessed the firearm; that he dropped the firearm on the sidewalk when the officers approached him; that, before August 20, 2010, he had been convicted of a crime punishable by over one year of imprisonment; that the firearm was operable; and that the firearm was manufactured in Massachusetts. (Def. Ex. C at 23:20-27:3.) Garrett also said he understood that he was relinquishing his right to seek postconviction relief as long as his sentence was not greater than guidelines level 21. (Def. Ex. C at 28:7-25.)
Garrett was sentenced on January 26, 2012. The guideline range was 77 to 96 months based on a total offense level of 21 and a criminal history category of VI. (PSR ¶ 89.)
At the sentencing hearing, Garrett submitted a motion for a downward departure based on his mental and emotional conditions and diminished capacity noting, inter alia, that he had an impoverished childhood; left school in fifth grade because his family could not afford clothes for him; was raped at age 17; had been shot multiple times; suffers from bipolar depression and anxiety; and experiences poor sleep, paranoia, stress, mood swings, and headaches in prison. (Def. Ex. D at 4:23-7:20.) Garrett also explained that he was the eldest of 11 children, had no father, lacked education, and never had a driver's license. (Def. Ex. D at 10:9-12:11.) He also argued that his diminished capacity contributed to his commission of the offense because he was suffering from paranoia from having been shot three times and believed he needed the firearm for protection. (Def. Ex. D at 7:21-8:13.) He did not present any evidence, even after the Court specifically asked, that he suffered from delusions or being out of touch with reality. (Def. Ex. D. at 8:20-9:6.)
The government opposed the motion, noting, inter alia, that Garrett had obtained his GED, earned 18 college credits in business courses, and received a Pell Grant to attend Harris School of Business for paralegal studies. (Def. Ex. D. at 12:16-13:17.) The government also argued that Garrett did not suffer from a significantly reduced mental capacity in the sense that he could not understand the wrongfulness of his behavior or could not control his behavior. (Def. Ex. D at 13:18-14:9.) Finally, the government noted that there was no correlation between the crime and his mental health impairment or diminished capacity and that Garrett was intoxicated at the time. (Def. Ex. D at 14:10-23.)
The Court issued an oral opinion denying Garrett's motion. The Court noted that Garrett had demonstrated good intellectual ability by obtaining a GED, completing 18 college credits, receiving the grant for paralegal studies, speaking articulately and with focus at the sentencing, and sending the Court submissions that showed impressive orientation, ability, and communication skills. (Def. Ex. D. at 14:25-17:6.) The Court concluded: "while Mr. Garrett suffers from a certain degree of mental illness, which is manifested by depression and anxiety and also by mood swings, that these features are not present to such an unusual degree that it would take his case outside of the Guidelines." (Def. Ex. D at 17:24-18:3.) The Court also held: "What's been diminished in Mr. Garrett's life unfortunately is his opportunity.... But he has not demonstrated that those burdens, as heavy as they may be, have somehow deprived him of the ability to understand the wrongfulness of his behavior or to control behavior that he knows is wrong." (Def. Ex. D at 18:9-18:15.) Finally, the Court stated: "He was intoxicated in a dangerous neighborhood... and made a decision to carry the firearm and that decision was not the product of a diminished capacity. And so the mental health issues that Mr. Garrett has are going to be considered in the sentence, but individually or cumulatively they don't add up to a basis for a departure...." (Def. Ex. D at 19:15-19-23.)
After the Court denied Garrett's motion for a downward departure, he was sentenced to 77 months of imprisonment, the bottom of the advisory Guidelines range of 77 to 96 months as determined by Total Offense Level 21 and Criminal History Category VI.
Garrett appealed to the Third Circuit arguing, inter alia, that his criminal history category had been improperly counted. The Third Circuit affirmed the judgment. ...