USA v. Gillespie

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
v.
RICO P. GILLESPIE,
Defendant.
Case No. 3:17-cr-00062-SLG-1
ORDER RE SECTION 2255 PETITION
Before the Court at Docket 136 is Defendant Rico Gillespie’s Amended
Petition Under 28 U.S.C. § 2255 to Correct Sentence.1 The government opposed
at Docket 137. Mr. Gillespie replied at Docket 138.
FACTUAL BACKGROUND
On July 10, 2018, Mr. Gillespie pled guilty to the charge of distribution of a
controlled substance.2 At his change of plea hearing, Mr. Gillespie admitted the
truth of the following facts:
On three separate occasions, on April 24th, May 2nd and May 4th in
Anchorage, Mr. Gillespie distributed more than 5 grams of actual
methamphetamine. In addition, on May 9, 2017, Mr. Gillespie’s house
was searched by law enforcement. They found more than 5 grams of
actual methamphetamine that Mr. Gillespie intended to distribute.
1 Mr. Gillespie’s initial § 2255 petition is at Docket 125.
2 See generally Docket 137-1 (Change of Plea Hearing Transcript); see also Docket 104 (Plea
Agreement).
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Law enforcement also found cash, two digital scales, and other items
consistent with the distribution of illegal narcotics.3
In exchange for his guilty plea, the government agreed to dismiss the
remaining charges against Mr. Gillespie.4 Pursuant to the plea agreement, Mr.
Gillespie and the government “agree[d] to jointly recommend a sentence of 87
months.”5
At the change of plea hearing, the Court discussed the plea agreement and
its implications with Mr. Gillespie and ultimately found that he was “fully competent
and capable of entering an informed plea, that he [was] aware of his rights, that
the plea [was] made knowingly and voluntarily, that [Mr. Gillespie] . . . had the
advice of legal counsel, and that there [was] a factual basis for the plea.”6 The
Court also explained that it was not a party to the plea agreement and that it was
“the Court’s responsibility to determine [Mr. Gillespie’s] sentence,” which could be
higher than the 87 months the parties had agreed to recommend.7 Mr. Gillespie
said that he understood that the Court would consider the factors set out in 18
3 Docket 137-1 at 16:7–16; see also Docket 104 at 3–4.
4 See Docket 104 at 2; see also Docket 137-1 at 8:7–12 (describing plea agreement). Aside
from the charge to which he pled guilty, Mr. Gillespie was charged with three additional counts
of distribution of a controlled substance and one count of possession of a controlled substance
with intent to distribute. See Docket 38 at 2–3 (First Superseding Indictment). The Court
dismissed these charges on the record at Mr. Gillespie’s sentencing. See Docket 137-2 at
54:22–25 (Imposition of Sentence Transcript).
5 Docket 104 at 2; see also Docket 137-1 at 8:7–12.
6 Docket 137-1 at 17:1–11.
7 Docket 137-1 at 13:14–23.
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U.S.C. § 3553(a) during sentencing, and informed the Court that he and his
attorney had discussed them.8
On September 24, 2018, Mr. Gillespie was sentenced to an 87-month term
of imprisonment, to be followed by a four-year term of supervised release.9 At the
sentencing hearing, the parties disputed whether it was appropriate to impose a
two-point enhancement to Mr. Gillespie’s base offense level under the sentencing
guidelines because a firearm had been found in his presence at the time of his
arrest.10 The Court concluded that the enhancement was warranted in Mr.
Gillespie’s case because the Court found, applying a preponderance of the
evidence standard, “it more likely than not that the firearm was possessed in the
course of drug dealing conduct.”11
In his sentencing memorandum, Mr. Gillespie requested a sentencing
referral to the Bureau of Prisons’ (“BOP”) Residential Drug Abuse Program
(“RDAP”).12 RDAP is a substance abuse treatment program, upon completion of
8 Docket 137-1 at 14:19–15:5.
9 See generally Docket 137-2. The judgment was entered several days later on September 27,
2018. Docket 120.
10 See Docket 137-2 at 21:24–33:20; see also Docket 111 at 12 (Final Presentence Report
recommending two-point enhancement); U.S. Sentencing Guidelines Manual § 2D1.1(b)(1) (“If
a dangerous weapon (including a firearm) was possessed, increase by 2 levels.”).
11 Docket 137-2 at 31:2–32:5.
12 Docket 114 at 16; see also Docket 111 at 25 (“The defendant . . . noted he would like to
participate in the 500-hour residential drug abuse program (RDAP) in the Bureau of Prisons
(BOP).”).
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which certain inmates may be eligible for a one-year sentence reduction.13
However, this sentence reduction is not available to “[i]nmates who have a current
felony conviction for . . . [a]n offense that involved the carrying, possession, or use
of a firearm.”14 At the September 24, 2018 sentencing hearing, the Court found
that Mr. Gillespie would benefit from RDAP, and recommended that he participate
in the program.15
On March 9, 2020, Mr. Gillespie filed a petition under 28 U.S.C. § 2255 to
vacate, set aside, or correct his sentence.16 Mr. Gillespie was appointed counsel
on April 9, 2020,17 and he filed an amended § 2255 petition on May 28, 2020.18
Mr. Gillespie’s amended petition contends that he “did not receive effective
assistance of counsel when his attorney failed to advise him of the good time
consequences of possessing a firearm.”19 Mr. Gillespie states in a declaration
13 See 18 U.S.C. § 3621(e)(2); 28 C.F.R. § 550.55(a); Mora-Meraz v. Thomas, 601 F.3d 933,
935–36 (9th Cir. 2010) (describing Congressional intent behind authorizing program).
14 28 C.F.R. § 550.55(b)(5)(ii).
15 Docket 137-2 at 50:2–4, 54:7–8.
16 Docket 125. A March 2, 2020 declaration filed with Mr. Gillespie’s original petition stated that
Mr. Gillespie “mailed an original § 2255 to this Court” on September 9, 2019. Docket 125 at 13.
However, there is no record of a September 9, 2019 petition on the Court’s docket, and Mr.
Gillespie abandoned the assertion that he had filed a § 2255 petition in September 2019 in his
amended petition with appointed counsel. See Docket 138 at 1–2 (maintaining that March 9,
2020 petition was timely without reference to alleged September 9, 2019 petition).
17 Docket 128.
18 Docket 136.
19 Docket 136 at 4. Mr. Gillespie’s amended petition withdrew two additional claims that he had
asserted in his original petition. See Docket 136 at 4.
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attached to his amended petition that he understood at the time he entered his
plea that his “attorney would recommend . . . participat[ion] in the RDAP program”
and that “those who complete the RDAP program normally receive additional good
time credits.”20 However, Mr. Gillespie declares that he “was not told by [his
attorney] that there is an exception to this rule for people who are found in
possession of a firearm at the time of their offense.”21 Mr. Gillespie states that
“[h]ad [he] been told of this exception, [he] would not have accepted the plea
agreement as presented.”22 Mr. Gillespie contends that he received ineffective
assistance of counsel and requests that the “Court . . . strike the 2-point firearm
enhancement from his Judgment.”23
20 Docket 136-1 at 1.
21 Docket 136-1 at 1.
22 Docket 136-1 at 1.
23 Docket 136 at 7. Although the Court does not deny Mr. Gillespie’s petition on this basis, the
Court notes that it would be unable to provide the relief that Mr. Gillespie requests, which is to
“strike the 2-point firearm enhancement from his judgment.” See Docket 136 at 7. Mr. Gillespie
claims, essentially, that he would not have entered into the plea agreement had he known that
he would be ineligible for early release upon completion of RDAP if the Court found at
sentencing that he had possessed a firearm in connection with the offense to which he pleaded
guilty. See Docket 136-1 at 1; Docket 136 at 5. To establish prejudice, a necessary element of
an ineffective assistance of counsel claim, Mr. Gillespie would need to show “a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). Accordingly, the proper
remedy in this case, if Mr. Gillespie’s petition were successful, would be to vacate his plea and
allow him to attempt to negotiate a new plea agreement, and, if unable to do so, to proceed to
trial. Johnson v. Uribe, 682 F.3d 1238, 1244–45 (9th Cir. 2012) (explaining that remedy for
ineffective assistance of counsel “‘should put the defendant back in the position he would have
been in if the Sixth Amendment violation never occurred’” and holding that defendant is “entitled
to be returned to th[e] pre-plea stage” (quoting Chioino v. Kernan, 581 F.3d 1182, 1184 (9th Cir.
2009))).
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DISCUSSION
Before reaching the merits of Mr. Gillespie’s amended petition, the Court
must determine whether his claim is time-barred by 28 U.S.C. § 2255(f), which
provides that “[a] 1-year period of limitation shall apply to a motion under this
section.” The government contends that Mr. Gillespie’s ineffective assistance of
counsel claim should be denied as untimely, since neither his original March 9,
2020 petition nor his May 28, 2020 amended petition was filed within one year from
the date that his judgment became final.24 Mr. Gillespie responds that he did not
become aware of the effect of the Court’s finding regarding the firearm until “after
he arrived at a federal prison and inquired about the RDAP program.”25 Mr.
Gillespie maintains that the one-year limitation period did not begin to run until his
commitment to Federal Correctional Institute (“FCI”) Sheridan on August 9, 2019,
and that his March 9, 2020 petition was therefore timely.26
The limitation period established by § 2255(f) runs from “the date on which
the judgment of conviction becomes final.”27 Mr. Gillespie’s judgment of conviction
became final on October 11, 2018, the date on which his 14-day window to appeal
24 Docket 137 at 3–5.
25 Docket 138 at 2. Mr. Gillespie states that he “had no reason to believe his attorney’s advice
was defective at the time of sentencing.” Docket 138 at 2.
26 Docket 138 at 2; see also Docket 139 at 1 (Declaration of Alisha Freeman stating that she
was informed by prison staff that “Mr. Gillespie was ‘committed’ to FCI Sheridan on August 9,
2019”).
27 28 U.S.C. § 2255(f)(1).
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the judgment closed.28 Mr. Gillespie did not file his petition within one year of that
date. However, the limitation period for a § 2255 petition can be extended to begin
running on “the date on which the facts supporting the claim or claims presented
could have been discovered through the exercise of due diligence.”29 The Ninth
Circuit has explained that “[t]he ‘due diligence’ clock starts ticking when a person
knows or through diligence could discover the vital facts, regardless of when their
legal significance is actually discovered.”30 “Due diligence does not require ‘the
maximum feasible diligence,’ but it does require reasonable diligence in the
circumstances.”31
Mr. Gillespie maintains that “[o]nce [he] became aware that completion of
the recommended RDAP program would not affect his incarceration, he acted
promptly to file the 28 U.S.C. § 2255 motion.”32 And Mr. Gillespie contends that
he “had no reason to believe his attorney’s advice [regarding RDAP] was defective
28 See Fed. R. App. P. 4(b)(1)(A); United States v. Colvin, 204 F.3d 1221, 1224 (9th Cir. 2000)
(“[W]e think it clear that a judgment cannot be considered final as long as a defendant may
appeal either the conviction or sentence.”).
29 28 U.S.C. § 2255(f)(4).
30 Ford v. Gonzalez, 683 F.3d 1230, 1235 (9th Cir. 2012) (citing Hasan v. Galaza, 254 F.3d
1150, 1154 n.3 (9th Cir. 2001)). In Ford v. Gonzalez, the Ninth Circuit considered the statute of
limitations established by 28 U.S.C. § 2244(d)(1), but “[t]he two provisions are almost
identical, . . . and the Supreme Court has interpreted the statute-of-limitations provisions of
§ 2244 and § 2255 in concert with one another.” Shannon v. Newland, 410 F.3d 1083, 1088
(9th Cir. 2005) (citing Lackawanna Cty. Dist. Attorney v. Coss, 532 U.S. 394, 402 (2001)).
31 Ford, 683 F.3d at 1235 (quoting Moore v. Knight, 368 F.3d 936, 940 (7th Cir. 2004)
(discussing § 2244(d)(1)).
32 Docket 136 at 6.
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at the time of sentencing.”33 Mr. Gillespie does not argue that the fact that the
firearm enhancement would make him ineligible for early release after completing
RDAP was not discoverable by him at the time of his sentencing through
reasonable diligence. But the Court takes judicial notice that the BOP regulation
in question was then publicly available, as it was promulgated in 2009.34
Although Mr. Gillespie did not actually learn that he was ineligible for early
release through RDAP until his commitment to FCI Sheridan in August 2019, the
Court finds that the information was publicly available and discoverable through
the exercise of reasonable diligence at the time of his sentencing in September
2018.35 Accordingly, Mr. Gillespie’s original § 2255 petition, filed on March 9, 2019,
was untimely since it was filed more than one year after his judgment of conviction
33 Docket 138 at 2.
34 See 28 C.F.R. § 550.55(b)(5)(ii); see also U.S. Dep’t of Justice, Bureau of Prisons, Program
Statement P5331.02 (2009) (establishing criteria and procedures when considering inmates for
early release for completion of RDAP program), available at
https://www.bop.gov/policy/progstat/5331_002.pdf (last visited July 13, 2020); Arnett v. Williams,
No. CV 13-5182-JAK (E), 2013 WL 5888286, at *2 (C.D. Cal. Oct. 31, 2013) (“[T]he BOP
categorically excludes certain inmates from early release [for completing RDAP]” including
those “convicted of offenses involving the carrying, possession, or use of a firearm.”). Federal
Rule of Evidence 201 allows judicial notice of a fact “not subject to reasonable dispute because
it . . . can be accurately and readily be determined from sources whose accuracy cannot
reasonably be questioned.” Fed. R. Evid. 201(b)(2); cf. Roemer v. Bd. of Pub. Works, 426 U.S.
736, 742 n.4 (1976) (judicially noticing state regulations).
35 See Asanansi v. United States, No. 2:13-cv-872-WHA, 2014 WL 5023452, at *2 (M.D. Ala.
Oct. 8, 2014) (denying as untimely § 2255 petition premised on challenge to BOP policy where
“the BOP policy was in existence at least since 2006, well before [petitioner] was sentenced and
entered federal prison in 2010,” so “[petitioner] could have discovered the BOP policy through
exercising due diligence over a year before he filed his § 2255 motion”).
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became final on October 11, 2018, on which date Mr. Gillespie could have
discovered the BOP policy at issue through the exercise of due diligence.
CONCLUSION
In light of the foregoing, Mr. Gillespie’s Amended Petition Under 28 U.S.C.
§ 2255 to Correct Sentence at Docket 136 is DENIED. Mr. Gillespie’s original
petition at Docket 125 is also DENIED.
The Court further finds that Mr. Gillespie has not made the requisite
substantial showing of the denial of a constitutional right, and therefore a certificate
of appealability will not be issued by this Court.36 Mr. Gillespie may request a
certificate of appealability from the Ninth Circuit Court of Appeals.
The Clerk of Court is directed to enter a Final Judgment in Case No. 3:20-
cv-00060-SLG.
DATED this 13th day of July, 2020 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
36 See Slack v. McDaniel, 529 U.S. 473, 484 (2000) (certificate of appealability may be granted
only if applicant made “substantial showing of the denial of a constitutional right,” i.e., showing
that “reasonable jurists could debate whether . . . the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further” (internal quotations and citations omitted)).
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