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Herrin v. United States

United States District Court, D. New Jersey

October 11, 2018

JAMAL HERRIN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          JAMAL HERRIN #64544-050 Federal Correctional Institution Pro Se Petitioner

          ALYSON M. OSWALD, Esq. MATTHEW T. SMITH, Esq. United States Attorney's Office Attorney for Respondent United States of America

          OPINION

          JOSEPH H. RODRIGUEZ U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Presently before the Court is Petitioner Jamal Herrin's (“Petitioner's”) pro se Motion to Vacate, Set Aside, or Correct Sentence, pursuant to 28 U.S.C. § 2255 (the “§ 2255 Motion”). (ECF No. 1.) For the reasons stated herein, the Court will deny Petitioner's § 2255 Motion and will deny Petitioner a certificate of appealability.

         II. BACKGROUND

         On January 9, 2013, Petitioner pleaded guilty to the charge of conspiracy to possess with intent to distribute more than five kilograms of cocaine, contrary to 21 U.S.C. §§ 841(a)(1), (b)(1)(C), and in violation of 21 U.S.C. § 846. (See, e.g., May 21, 2013 Crim. J. in United States v. Herrin, Crim. Action No. 1:13-cr-17-1 (JHR) (the “Criminal Docket”) at ECF No. 19.)

         As set forth in the June 6, 2012 criminal complaint detailing the basis for that charge, from approximately April 25, 2012 through June 6, 2012, Petitioner undertook significant efforts to purchase thirteen kilograms of cocaine from persons whom he believed to be drug dealers, but who in fact were undercover police officers and individuals cooperating with law enforcement. (See June 6, 2012 Crim. Compl., available at ECF No. 13-3.) During that time, Petitioner, among other things, told the undercover officers and cooperators that he was part of a collective of individuals purchasing the cocaine.

         On June 6, 2012, the day that Petitioner believed he was going to pay for, and take delivery of, thirteen kilograms of cocaine, a female identified only as “L.L.” accompanied Petitioner to an agreed-upon location in Cherry Hill with a duffel bag containing $325, 000.00 in cash. Petitioner and L.L. were arrested after that money was presented to the undercover officers as payment for the cocaine. Petitioner does not claim - nor is there anything in the record that suggests - that L.L. was a law enforcement officer or a government cooperator.

         At his January 9, 2013 plea hearing, Petitioner answered a series of questions in which he affirmed the truth of the allegations in the criminal complaint. (See Jan. 9, 2013 Hr'g Tr. 17-25, ECF No. 13-2.) Petitioner, among other things, confirmed that he “agree[d] with L.L., the individuals from [whom he] collected money to pay for the 13 kilograms of [cocaine], and others, to distribute and possess with intent to distribute over five kilograms of cocaine.” (See Id. at 23.) At Petitioner's May 14, 2013 sentencing hearing, the Court sentenced Petitioner to 120-months' imprisonment. (See May 14, 2013 Hr'g Tr. 3-4, ECF No. 13-4.)

         Petitioner did not file a direct appeal. Instead, on November 24, 2015, [1]Petitioner filed the current § 2255 Motion. Petitioner's § 2255 Motion represents his first effort to challenge the propriety of the above-referenced conviction and sentence. Petitioner attributes his failure to file a direct appeal or prior § 2255 motion to the “deficient performance of [his] counsel[.]” (See § 2255 Mot. at PageID: 10.) Petitioner's § 2255 Motion advances the following arguments:

Ground One: Actual Innocence - Petitioner had only “conspired” with a confidential informant who was working for law enforcement throughout the entire offense.
Ground Two: Actual Innocence . . . [as] no actual cocaine was “involved” in the case.

(Id. at PageID: 4-5.)

         The Government filed its answer opposing Petitioner's § 2255 Motion on September 29, 2016. (ECF No. 13.) By way of that submission, the Government argues that Petitioner's § 2255 Motion should be denied because: (1) it is untimely; and (2) the substantive arguments advanced by Petitioner therein are without merit. (Id. at PageID: 6-12.)

         III. ...


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