United States District Court, D. Massachusetts
FRANKLIN M. GOLDMAN, Petitioner.
UNITED STATES OF AMERICA, Respondent.
MEMORANDUM AND ORDER
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).
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.
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
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.
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."
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.
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.
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.
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.
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
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.
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.
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).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.
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.
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.
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.
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).
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,
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.
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.
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 ...