Free Motion to Vacate (2255) - District Court of Colorado - Colorado

Case 1:01-cr-00214-WYD

Document 3429-3

Filed 02/22/2007

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Vincent James Oliver Law Offices of Vincent James Oliver 205 South Broadway Suite 606 Los Angeles, California 90012 Telephone: (213) 617-2307 Facsimile: (213) 617-2851 Electronic: [email protected]

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO UNITED STATES OF AMERICA, Respondent, v. ALVIN GREEN, #30411-013 Petitioner. ) ) ) ) Orig. Crim. No. 01cr214D ) ) ) )

MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE UNDER 28 U.S.C. § 225 Petitioner herein, Alvin Green, by and through undersigned counsel, moves this Honorable Court to vacate and correct the sentence heretofore imposed.

Substantively, the Petitioner submits that he was denied the effective assistance of counsel at trial when counsel failed to cross-examine Government witnesses concerning inconsistent statements. Additionally, Petitioner was

denied effective assistance of counsel on appeal when

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counsel failed to raise ineffective assistance of counsel for failure to request a jury instruction and failure to raise severance, in violation of the Sixth Amendment to the United States Constitution. Therefore, the Petitioner requests that his sentence be vacated. In support thereof, the Petitioner states

the following: 1. On January 7, 2003, the Petitioner was charged with violations enumerated in Counts I, 38, 39, 59, 75 and 77 of a 77 count indictment, to wit: Count 1: conspiracy to distribute

quantities of a mixture and substance containing cocaine a detectable `crack amount cocaine,' of a

base,

schedule II controlled weighing violation more of than

substance, grams, in §§

fifty 21

U.S.S.

841(a)(1),(b)(1)(A)(iii) and 846.

Counts 38-39: use of a telephone to facilitate a drug trafficking offense,
2

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in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.

Count

59:

felon

in

possession

of

a

firearm, in violation of 18 U.S.C. § 922(g)(1) and (2).

Count 75: money laundering, aiding and abetting, in violation of 18 U.S.C. § 1956 (a)(1)(A)(i) and (2)

Count 77: forfeiture, citing 21 U.S.C. § 853. 2. On September 22, 2003, a jury trial commenced

before the Hon. Wiley Y. Daniel of the District Court for the District of Colorado, where the Petitioner entered a plea of not guilty. A Motion for Severance was made and Trial counsel did not

denied by the District Court.

request a special jury instruction regarding quantities of drugs attributable to the Petitioner.

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3.

On November 13, 2003, the Petitioner was found guilty of Counts 1, 38, 39, and 75. after trial. Count 59 was dismissed

4.

The PSI held the Petitioner's total offense level to be 34, pursuant to § 2D1.1(a)(4), and a criminal history category of IV. Counts 38 and 39 provided Count 75 provided The federal

for a sentence of 48 months each.

for a sentence of 210 to 240 months.

guideline imprisonment range was 210 to 262 months. However, the statutorily required sentence for Count 1 was life imprisonment without release because of the Petitioner's two prior felony drug convictions pursuant to § 4B1.1. 5. On April 7, 2004, the Petitioner was sentenced

pursuant to the Guideline range.

As to Count 1, the

Petitioner received a term of life without release. The Petitioner received 48 months as to Counts 38 and 39, and 210 months as to Count 75. These terms of

imprisonment we set to run concurrently. Pursuant to 18 U.S.C. § 3583, the Court was required to impose a term of supervised release.
4

As to Counts 38, 39 and

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75,

the

Petitioner

received

three

years

to

run

concurrently. 6. On October 7, 2005, the Tenth Circuit Court of

Appeals issued a mandate denying the Petitioner's appeal. Issues raised on appeal were: (1) The District Judge violated the Fifth and Sixth Amendments by finding facts not submitted to the jury, and by imposing a longer sentence than without those findings specifically pertaining to the 21 U.S.C. § 841(b) enhancement resulting in a mandatory term of life imprisonment without release; The District Judge violated the Fifth and Sixth Amendments by finding facts not submitted to a jury, and by imposing a longer sentence than without those findings under the Guidelines, and variance upon sentencing; The District Judge violated Due Process by failing to question potentially tainted jurors; The wire tap, and all the evidence gained therein should have been suppressed; There was insufficient evidence to support a conviction of count one in the indictment, to wit: conspiracy to distribute and
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(2)

(3)

(4)

(5)

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possess with intent to distribute fifty or more grams of cocaine base, and aiding and abetting of the same. Appellate counsel also joined and adopted by

reference issues raised in related appeals. been no further action taken in this case. 7.

There has

Petitioner submits that his detention is unlawful, and argues that: I. Petitioner assistance of received counsel at ineffective trial when

counsel failed to cross examine witness about prior inconsistent statements.

II. Petitioner

received ineffective

assistance on appeal when counsel failed to raise meritorious issues on appeal.

III.

Petitioner is entitled to an evidentiary hearing on these matters.

8.

The

Petitioner

is

currently

in

the

custody

of

Victorville Penitentiary, P.O. Box 5500, Adelanto, CA

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92301.

The Petitioner's inmate registration number

is 30411-013. WHEREFORE, in consideration of the foregoing as well as argument of law contained in the Memorandum of Law filed herewith, the Petitioner respectfully prays that this Court issue an Order vacating the sentence imposed in this case based upon counsel's ineffective assistance of counsel at trial and on appeal. Petitioner issues. Respectfully submitted, requests an evidentiary At a minimum, the hearing on these

_______________________________ Vincent James Oliver, Esq. Attorney for Petitioner 205 S. Broadway, Suite 606 Los Angeles, CA 90012 Telephone: (213) 617-2307

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VERIFICATION The Petitioner herein, Alvin Green, through counsel hereby declares, verifies and states under penalty of perjury that the facts stated in the foregoing motion and appended memorandum of law are true and correct to the best of his knowledge and belief. Executed on ________________________, pursuant to 28 U.S.C. § 1746,

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CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing Motion and Memorandum of Law appended hereto has been sent this 21st day of February, 2007, by regular U.S. Mail with sufficient postage affixed thereto to insure

delivery to the Office of: Attorney General, 1225 17th Street, Suite 700, Denver, Colorado. penalty correct. of perjury that the I declare under is true and

foregoing

Executed this 21st day of February, 2007 at Los

Angeles, California. Vincent James Oliver ___________________________ Vincent James Oliver Attorney for Petitioner

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