Garrett v. United States

          Alan D. Garret, Petitioner pro se

          Sara Aliya Aliabadi, Assistant United States Attorney OFFICE OF THE U.S. ATTORNEY FOR THE DISTRICT OF NEW JERSEY Attorney for Respondent

          OPINION

          JEROME B. SIMANDLE U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Petitioner Alan D. Garrett (“Garrett”) pled guilty to a one-count Indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) on October 4, 2011. On January 26, 2012, the undersigned sentenced him to 77 months imprisonment, to be followed by 3 years of supervised release. Shortly after he completed his initial term of imprisonment, Garrett violated the terms of his supervised release and was sentenced for that violation on December 12, 2016.^[1] Garrett now seeks to vacate, set aside, or correct the sentence for violating supervised release imposed on December 12, 2016, pursuant to 28 U.S.C. § 2255. [Garrett v. United States, Civ. No. 17-3254 (D.N.J.) at Docket Item 1 (the “Motion”).] Through various letters and a so-called “Amended Petition” [id. at Docket Item 34], Garrett also seeks to vacate, set aside, or correct the sentence for his initial conviction imposed on January 26, 2012. For the reasons explained below, the Court will deny Garrett's initial Motion challenging his 2016 sentence for violation of supervised release, while Garrett's “Amended Petition” and related filings challenging his 2012 conviction and sentence will be dismissed as an unauthorized second or successive petition under Section 2255(h).

         II. FACTUAL BACKGROUND AND PROCEDURAL BACKGROUND

         On October 4, 2011, Garrett pled guilty to a single count Indictment for being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g). [United States v. Garrett, Crim. No. 11-242 (D.N.J.) at Docket Items 25 & 27.] The undersigned sentenced Garrett at the bottom of the advisory guidelines range to 77 months imprisonment, to be followed by 3 years of supervised release, and entered the final Judgment of conviction on January 26, 2012 (“the January 26, 2012 Judgment”). [Id. at Docket Items 28 & 29.] Mr. Michael N. Huff, Esq. subsequently filed a notice of appeal on behalf of Garrett, United States v. Garrett, App. No. 12-1338 (3d Cir.), which the Third Circuit denied, United States v. Garrett, 507 Fed.Appx. 139 (3d Cir. 2012), affirming the January 26, 2012 Judgment.

         On January 2, 2013, Garrett timely filed a petition under 28 U.S.C. § 2255 challenging the January 26, 2012 Judgment on the basis that his 2012 sentence 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. [United States v. Garrett, Civ. No. 13-27 (D.N.J.) at Docket Item 1.] The undersigned denied this § 2255 petition because Garrett had waived his right to petition for § 2255 relief in his plea agreement and, in any event, none of his arguments had merit. Garrett v. United States, 2014 WL 1334213 (D.N.J. Apr. 2, 2014).

         On May 9, 2016, Garrett began serving his term of supervised release. [Garrett, Crim. No. 11-242 (D.N.J.) at Docket Item 40.] A little more than one month later, Garrett was charged in state court with aggravated assault, possession of a weapon for unlawful purposes, and possession of a weapon by a convicted felon. [Id.] Subsequently, those charges were dropped in exchange for Garrett pleading guilty to hindering apprehension. [Id.] The U.S. Probation Office petitioned for a violation of his supervised release because Garrett had “commit[ted] another federal, state, or local crime” while under supervision. [Id.] On November 22, 2016, Garrett's probation officer subsequently amended the petition, further clarifying the charge in Violation No. 1. [Id. at Docket Item 47.] A second amended petition was endorsed and filed November 23, 2016 [Docket Item 50], adding Violation No. 2, charging Garrett with violating supervised release by possession of a firearm in connection with the events of Violation No. 1.

         Garrett, represented by counsel, pled not guilty to the second amended petition, and the Court convened the final hearing on December 8, 2016. [Docket Item 53.] The Government, represented by AUSA Aliabadi, dismissed Violation No. 2 and proceeded to offer evidence on Violation No. 1. (Tr. 12/8/16 [Docket Item 58] at 2-3.) The evidence showed that Garrett was convicted in New Jersey Superior Court of hindering his detention, apprehension, or investigation, in violation of N.J.S.A. § 2C:20-3b(1), on November 16, 2016, arising out of the charged incident on June 6, 2016, while under the supervision of this Court. Mr. Garrett spoke at the hearing, arguing that the Probation Office abused its discretion in charging what he considered a “technical violation” and that the condition of supervision (that “you shall not commit another federal, state, or local crime”) was impermissibly vague. The Court addressed and rejected these concerns, and found that the Government proved Garrett's guilt of Violation No. 1 of the second amended petition, in an oral opinion. (Tr. 12/8/16 at 16:12 to 20:18.) The undersigned then sentenced Garrett to a term of imprisonment of 12 months and 1 day, to be followed by a term of 23 months of supervised release, and entered Judgment against Garrett for violating his supervised release on December 12, 2016 (“the VOSR Judgment”).^[2] [Id. at Docket Item 54.]

         Garrett timely filed a notice of appeal of the VOSR Judgment. [Id. at Docket Item 55.] In that appeal, Garrett argued to the Third Circuit, inter alia, that: (1) under New Jersey law, hindering apprehension is a disorderly persons offense and not a crime; (2) the terms of Garrett's supervised release were vague; (3) the probation officer abused her discretion because Garrett did not intentionally breach the officer's trust and that Garrett “act[ed] with proper care and caution;” and (4) that the resulting one-year-and-one-day sentence imposed by the District Court was unreasonable. [United States v. Garrett, App. No. 16-4320 (3d Cir.), Documents filed by Garrett dated May 5, 2017 and May 22, 2017.] On June 19, 2018, the Third Circuit addressed each of Garrett's arguments, denied his appeal on the merits, and affirmed the VOSR Judgment that Garrett now challenges. United States v. Garrett, 737 Fed.Appx. 643');">737 Fed.Appx. 643 (3d Cir. 2018).

         On May 8, 2017, Garrett filed the present Motion pursuant to 28 U.S.C. § 2255. [Garrett, Civ. No. 17-3254 (D.N.J.) at Docket Item 1.] This § 2255 motion challenges his conviction and confinement for violation of supervised release imposed on December 12, 2016 (i.e., the VOSR Judgment), arguing that the Court failed to grant a downward departure for time served from June 23, 2016 to November 16, 2016 under U.S.S.G. § 5K2.23. [Id. at 3-4.] Garrett also objected to the condition imposed upon his future supervised release requiring drug and alcohol testing. [Id. at 4.]

         On November 21, 2017, the Court alerted Garrett of his rights under United States v. Miller, 197 F.3d 644 (3d Cir. 1999), notified Garrett that he may have his pleading ruled upon as filed or “withdraw his pleading and file an all inclusive Section 2255 Petition including any and all potential claims, subject to the one (1) year period described by the Antiterrorism Effective Death Penalty Act [AEDPA] ¶ 28 U.S.C. § 2255, ” and instructed Garret that he had “forty-five (45) days from today's date within which to advise the Court as to your decision. If you fail to notify the Court, your pleading and motion will be ruled upon as filed.” [Garrett, Civ. No. 17-3254 (D.N.J.) at Docket Item 9] (emphasis in original). The deadline for Miller amendments thus expired on January 5, 2018. Garrett subsequently filed several letters on the docket [see, e.g., Id. at Docket Items 11, 16, 17, 20, 21 & 31], challenging the validity of the initial January 26, 2012 Judgment (as opposed to the VOSR Judgment at issue in the Motion), which the Court construes as support for a separate Section 2255 challenge, as discussed below.

         On July 20, 2018, the Court ordered the Government to file an Answer within 45 days “which responds to the allegations of the Motion by each paragraph and subparagraph” and “accompanied by certified copies of all indictments and/or charges, transcripts, trial briefs, appendices, ...