Goldman v. United States

          MEMORANDUM AND ORDER

          WOLF, D.J.

         I. INTRODUCTION

         On December 22, 1992, Franklin Goldman was convicted of conspiracy to possess cocaine with intent to distribute and possession of cocaine with intent to distribute. Judge A. David Mazzone determined that Goldman was a Career Offender under §4B1.1 of the United States Sentencing Guidelines, and sentenced him to 30 years in prison and eight years of Supervised Release. In 2001, the Massachusetts Superior Court vacated Goldman's 1977 state conviction for kidnapping, meaning that Goldman was no longer a Career Offender. In 2008, this court reduced Goldman's prison sentence under 28 U.S.C. §2241 to time served, and Goldman began serving his eight-year term of Supervised Release. See Goldman v. Winn, 565 F.Supp.2d 200 (D. Mass. 2008); Goldman v. Winn, 587 F.Supp.2d 311 (D. Mass. 2008).

         In 2009, Goldman was convicted of racketeering. See United States v. DeLeo, et al., Cr. No. 09-10391. Judge Douglas Woodlock sentenced him to 70 months in custody and three years of Supervised Release. This court subsequently revoked Goldman's Supervised Release and sentenced him to 60 months in custody, consecutive to his 70-month sentence for racketeering. See Docket No. 177. In total, therefore, Goldman was sentenced to 130 months in custody.

         On April 5, 2018, this court decided several motions filed by Goldman challenging the sentence imposed in this case for violations of Supervised Release. Specifically, the court denied defendant's Motion to Reduce Sentence Pursuant to 18 U.S.C. §3582 (c) (2) and U.S.S.C. Amendment 782 (Docket No. 187); his Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. §2255 (Docket No. 206) (the "§2255 Petition); and his Motion to Amend (Docket No. 225).

         On May 7, 2018, Goldman filed the instant Motion to Alter or Amend Judgment under Federal Rule of Civil Procedure 59(e) with respect to the April 5, 2018 Memorandum and Order. See Docket No. 233 (the "Rule 59(e) Motion"). As explained below, Goldman's Rule 59(e) Motion is, in effect, a motion to reconsider the April 5, 2018 decision. It alleges various errors by this court in these §2255 proceedings.

         On August 16, 2018, Goldman filed a Motion for Declaratory Judgment pursuant to Federal Rule of Civil Procedure 57, asserting that it had been 90 days since he had filed the Rule 59(e) Motion, but that the court and the United States Attorney's Office had failed to respond. See Docket No. 234 (the "Motion for Declaratory Judgment"). Because the §2255 petition to which Goldman refers in the Motion for Declaratory Judgment has already been decided, the court understands the requested declaration to pertain to the Rule 59(e) Motion. It appears that Goldman may have filed the Motion for Declaratory Judgment because under Rule 57, the court "may order a speedy hearing of a declaratory judgment action."

         On December 12, 2018, Goldman filed a petition for writ of mandamus in the First Circuit, requesting that the First Circuit direct this court to adjudicate the merits of his §2255 petition (Docket No. 206). See Docket Nos. 237; 237-1 at 5. On January 16, 2019, the First Circuit denied the petition for writ of mandamus without prejudice to reassertion if there has been no action on the pending motions within 90 days of its ruling. See Docket No.

         Although the government has not responded to the Rule 59(e) Motion or the request for declaratory judgment, the court is able to decide them. For the reasons described below, each of the motions is without merit and is being denied.

         II. BACKGROUND

         Pertinent parts of the long procedural history of this case were summarized by this court in its April 5, 2018 decision. See Docket No. 231 at 4-10. That summary of the procedural history is reiterated and amplified below.

         As explained earlier, on December 22, 1992, Goldman was convicted of possession of cocaine with intent to distribute and conspiracy to commit that crime. Ordinarily, the Guideline range for Goldman's offense would have been 121 to 151 months in custody. However, a defendant with at least two felony convictions for either a crime of violence or a controlled substance offense is classified as a Career Offender subject to an increased Guideline range. See U.S.S.G. S4B1.1. In 1993, Goldman had two such prior convictions, including a 1977 conviction for kidnapping in Massachusetts Superior Court. Therefore, the Guideline range for his sentence was 360 months (30 years) to life in prison, rather than 121 to 151 months. Judge Mazzone sentenced Goldman to 30 years in custody. Goldman filed an appeal and, in 1996, a motion to vacate and revise his sentence under §2255. Both were unsuccessful.

         In 2000, Goldman moved in the Massachusetts Superior Court for a new trial on the 1977 kidnapping conviction, which was, in 1993, responsible for enhancing Goldman's Guideline range and his federal sentence. In 2001, Massachusetts Superior Court Justice Daniel F. Toomey found that Goldman had been improperly denied his right to appeal the 1977 conviction for kidnapping because no transcript of his trial had been prepared as required for appellate review. Accordingly, he granted Goldman's petition, vacated the 1977 conviction, and ordered a new trial. In 2002, the state declined to retry Goldman.

         A petitioner who has had his sentence enhanced based on a prior conviction that is later vacated for errors of law or constitutional invalidity is entitled to a reduction in sentence. See Johnson v. United States, 544 U.S. 295, 303 (2005); Matteo v. United States, 398 F.3d 126, 134-35 (1st Cir. 2005). On February 12, 2002, Goldman moved to reopen his 1993 federal sentencing and reduce his sentence because it was influenced by the vacated 1977 conviction. Judge Mazzone construed that motion as a second and successive §2255 petition which could not be considered without leave of the First Circuit. See Goldman v. United States, C.A. No. 95-10989 (D. Mass. April 5, 2002). The First Circuit subsequently agreed, see Goldman v. United States, C.A. No. 02-1593 (1st Cir. Oct. 21, 2002), and denied Goldman leave to file the motion to vacate, see Goldman v. United States, C.A. No. 02-2322 (1st Cir. Nov. 7, 2002). On December 27, 2004, Goldman filed another petition, this time pursuant to 28 U.S.C. §2241, seeking the same relief. In 2007, Goldman obtained crucial new evidence indicating his innocence of the 1977 kidnapping charge.

         In response to Goldman's §2241 petition, the government had argued, among other things, that Goldman procedurally defaulted his claim because he had not raised it at his 1993 sentencing, on appeal, or in his prior §2255 petition. It also argued that the petition was time-barred. The court found that Goldman's claim was not time-barred because he had been reasonably diligent in pursuing it, but that it was procedurally defaulted because he failed to challenge the validity of his state conviction at his 1993 sentencing hearing. Goldman v. Winn, 565 F.Supp.2d 200, 217-18, 221-22 (D. Mass. 2008). In deciding those issues, the court discussed in detail the standards for timely filing and equitable tolling, Id. at 218-22. The court then excused Goldman's procedural default because it found Goldman demonstrated that he was "actually innocent" of the 1977 kidnapping, "the act on which his harsher sentence was based." Id. at 244 (citing Spence v. Superintendent, Great Meadow Corr. Facility, 219 F.3d 162, 172 (2d Cir. 2000)). With regard to the merits, the court found that the vacateur of the 1977 conviction entitled Goldman to be resentenced for his 1993 federal conviction. Id. at 244 (citing Mateo, 398 F.3d at 133, 134 & nn. 6-7). On August 7, 2008, the court resentenced Goldman to time served, which was approximately 15 years, and 96 months Supervised Release. See Goldman, 587 F.Supp.2d at 311.

         Soon after his release, Goldman joined the "DeLeo Crew," a criminal organization then led by Ralph DeLeo, acting "street boss" of the Colombo Family of La Cosa Nostra. See Statement of Facts (Docket No. 174-1).^[1]The "DeLeo Crew" was responsible for crimes including drug trafficking, the extortionate extending of credit, and collecting unlawful debts in Massachusetts and several other states in 2008 and 2009. Id. at 1. In 2009, Goldman conspired with DeLeo to commit several acts of extortion, including by administering a beating. Id. at ¶ 3-4. He also conspired to import at least 250 pounds of marijuana from Canada, Id. at 55.

         On December 17, 2009, a federal grand jury charged Goldman with conspiracy under the Racketeer Influenced and Corrupt Organizations ("RICO") Act, 18 U.S.C. §1962(d). See Cr. No. 09-10391, Docket No. 9. Conditions of Goldman's Supervised Release required that he not commit any crime or associate with felons. On April 25, 2012, Goldman pled guilty both to the criminal charges and to violating his Supervised Release. See Plea Agreement (Docket No. 168) . On November 21, 2012, Judge Douglas Woodlock sentenced Goldman to 70 months in custody, to be followed by three years of Supervised Release. See Cr. No. 09-10391, Docket No. 179.

         On January 22, 2013, this court held a hearing to decide Goldman's sentence for violations of the conditions of his Supervised Release. See Jan. 22, 2013 Transcript ("Tr.") (Docket No. 181). Goldman's advisory Guideline range was 30 to 37 months in custody. The parties jointly requested a 30-month term of incarceration, consecutive to the 70 months imposed by Judge Woodlock, and 66 months of Supervised Release. However, the court imposed the statutory maximum sentence of 60 months in custody, consecutive to the sentence imposed by Judge Woodlock, and 36 months of Supervised Release, to run concurrently with the three years he imposed. The court imposed the 60-month sentence primarily because by returning to violent crime despite having had the rare opportunity to be released from prison long before the expiration of his 1993 sentence, Goldman had demonstrated that he was "incorrigibly dangerous," and that a 60-month consecutive sentence was necessary to protect the public. Ld. at 29-31. Judgment entered on February 5, 2013.

         At the January 22, 2013 hearing, the court advised Goldman of his right to appeal his sentence within ten days of the entry of judgment. Id. at 33. He did not do so. Goldman has, however, filed numerous motions for post-conviction relief.

         On June 12, 2013, Goldman, acting £ro se, filed a Motion for Leave to File an Out-of-Time Appeal under Rule 4 of the Federal Rules of Appellate Procedure. See Docket No. 183 (the "Motion for Out-of-Time Appeal"). In it, Goldman alleged that his trial counsel, Edward Ryan, Esq., failed to file a timely notice of appeal despite having been "specifically directed" by Goldman to do so. Id. In September 2013, Goldman sent a letter to Mr. Ryan communicating his understanding that Mr. Ryan still represented him. See Docket No. 207-1, Ex. A. Mr. Ryan responded that his representation had ended after Goldman's sentencing. Docket No. 207-2, Ex. B. On January 27, 2014, Goldman filed a Motion for Information Regarding Direct Review and Equitable Tolling (the "Motion for Equitable Tolling")(Docket No. 186), and a Motion to Vacate Void Judgement, arguing that he could not have been resentenced in 2008 because his 1993 conviction had been vacated (the "Motion to Vacate") (Docket No. 196).

         On August 12, 2015, the court denied Goldman's motions. See Docket No. 204. In particular, it found the Motion to Vacate was unmeritorious because the 2008 decision vacated Goldman's sentence, not his conviction, meaning that there was a proper basis for imposing a term of Supervised Release when he was resentenced. Id. at 3. The Motion for Leave to File an Out-of-Time Appeal was denied as untimely because it was filed 113 days after the expiration of the 10-day period for filing an appeal, ^[2] far beyond the 30-day extension the court had authority to allow. Id. at 4-5 (citing Fed. R. App. P. 4(b)(4)). The court denied the Motion for Information Regarding First Review Equitable Tolling because Goldman had not yet filed a petition under §2255, noting that in such a petition, "he may . . . reassert the ineffective assistance of counsel claim raised in his Motion for Leave to File [Out-of- Time Appeal]" and "raise any arguments for equitable tolling of, or an exception to, Section 2255's one-year period of limitations." Id. at 5.

         On April 5, 2018, this court decided three motions challenging Goldman's sentence for his violations of Supervised Release. See Docket No. 231 at 22. One of these motions was filed before the court rendered its August 12, 2015 decision and two were filed following that decision. First, on December 2, 2014, Goldman had moved to reduce his sentence under 18 U.S.C. §3582(c)(2) and Amendment 782 to the Sentencing Guidelines, which retroactively reduced most drug quantity base offense levels by two levels. See Docket No. 187 (the "Motion to Reduce"). In the April 5, 2018 decision, the court denied the Motion to Reduce because Amendment 782 "does not authorize a reduction in the term of imprisonment imposed upon revocation of supervised release." See Docket No. 231 at 3 (quoting U.S.S.G. §1B1.10, A.N. 7(A)).

         Also on April 5, 2018, the court decided Goldman's September 25, 2015 motion under 28 U.S.C. §2255 to vacate his sentence for violating his conditions of Supervised Release. In that motion, Goldman argued that his counsel ignored his instructions to file a notice of appeal and was, therefore, ineffective. See Docket No. 206. The court denied this motion because the record of Goldman's case "conclusively show[ed] that [he was] entitled to no relief." Docket No. 231 at 3 (quoting 28 U.S.C. §2255(b)). In addition, the §2255 petition was filed ...