United States v. Gouse

          MEMORANDUM AND ORDER

          John J. McConnell, Jr. United States District Judge

         Before the Court are Damien Gouse's motions for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure (ECF No. 84) and his motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. ECF No. 85. Mr. Gouse asks the Court to grant him a new trial, or, alternatively, to vacate his sentence due to errors of law and ineffective assistance of counsel both at the trial and appellate levels. The Court finds no merit to either of Mr. Gouse's motions and thus they are DENIED.

         I. FACTS

         Providence Police stopped Mr. Gouse's car in November of 2007. The police found a handgun and a bag of suspected narcotics in the car. Mr. Gouse was indicted by the federal government for being a felon in possession of a firearm, under 18 U.S.C. §§ 922(g)(1) and 924(e)(1).^[1] The parties stipulated that Mr. Gouse had a prior felony on his record such that evidence of the first element of the crime - being a felon in possession of a firearm - was not put before the jury. ECF No. 73 at 42-43. The case went to trial and a jury found Mr. Gouse guilty of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1). ECF No. 52. In the course of litigation, the Government chose not to press for the enhanced penalty of fifteen years that is available under the ACCA. The Court subsequently imposed a sentence of 120 months incarceration, ^[2] followed by three years of supervised release, according to the default penalty provision in 18 U.S.C. § 924(a)(2)^[3], which applies to the criminal statute that Mr. Gouse was convicted of violating. ECF No. 62.

         Mr. Gouse appealed to the First Circuit Court of Appeals on a single issue, arguing a violation of the Interstate Agreement on Detainers (IAD), which was denied. United States v. Gouse, 798 F.3d 39 (1st Cir. 2015). He next sought certiorari in the United States Supreme Court, which was also denied. United States v. Gouse, 136 S.Ct. 283 (2015). He now brings the instant motions pursuant to Rule 33 of the Federal Rules of Criminal Procedure for a new trial, and 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence.

         II. ANALYSIS OF RULE 33 CLAIM

         Rule 33 states that upon defendant's motion, "the court may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). A motion grounded on any reason other than newly discovered evidence must be filed within fourteen days of the verdict of guilty. Fed. R. Crim. P. 33(b)(2). A defendant arguing for a new trial based on discovery of new evidence, however, has three years from the verdict. Fed. R. Crim. P. 33(b)(1). The fourteen day limit would bar a Rule 33 motion in this case, therefore, unless Mr. Gouse can show that the discovery of new evidence and the interest of justice require the Court to vacate judgment and order a new trial. See Id. He cannot, and thus his motion for a new trial fails.

         The First Circuit adheres to a well-established four-pronged test, sometimes referred to as the "Wright test, " to evaluate requests for new trial on the basis of newly discovered evidence. United States v. Montilla-Rivera, 115 F.3d 1060, 1064-65 (1st Cir. 1997); United States v. Wright, 625 F.2d 1017 (1st Cir. 1980). The four factors are: (i) that evidence was unknown or unavailable at time of trial despite (ii) due diligence, and that (iii) the evidence was material, not merely cumulative or impeaching, and that (iv) the evidence would likely result in an acquittal upon retrial. United States v. Natanel, 938 F.2d 302, 313 (1st Cir. 1991). For each prong, the defendant carries the burden of proof. See Montilla-Rivera, 115 F.3d at 1064-65; Wright, 625 F.2d at 1019. Courts in the First Circuit have no discretion to grant a new trial if any one of these four factors is missing. See Natanel, 938 F.2d at 313.

         Mr. Gouse, in his affidavit and memorandum filed in support of this motion, offers very little that - even when liberally construed - could be considered newly discovered evidence. Mr. Gouse contends that his indictment, trial, conviction, and sentencing were improper, ^[4] but the only newly discovered evidence he cites is a conversation he had with an "inmate law clerk" who told Mr. Gouse, presumably after reviewing his case, that he has "seen some ugly mistakes from the courts, but this is one of the uglier ones . . . ." ECF No. 84 at 2. Applying the Wright test to this statement, the Court finds that Mr. Gouse has failed in his burden. First, a conversation with a fellow inmate about whether mistakes were made in his indictment, trial, conviction, or sentence hardly qualifies as evidence as to his factual innocence. Even if, arguendo, the inmate's opinion was "evidence, " by Mr. Gouse's own admission, the basis for the opinion, i.e. the details of the indictment, trial, conviction, and sentence, were readily known and available at the time of trial. ECF No, 84 at 1-2. Although it is not necessary to address all four components of the test to disqualify the potential evidence, see Natanel, 938 F.2d at 313, the "evidence" was not material to the case. The inmate's opinion was, at most, an impeachment of the Court and Mr. Gouse's lawyer. Finally, the "evidence" in the form of an inmate's opinion was not remotely likely to result in acquittal at retrial.

         Therefore, because the Court finds that Mr. Gouse has failed in his burden to show that there is newly discovered evidence justifying a new trial under Rule 33, his motion is DENIED.

         III. ANALYSIS OF § 2255 CLAIM

         The core of Mr. Gouse's claim for relief under § 2255 is that his sentence was illegal due to the prosecutor's misconduct in committing procedural errors in the indictment and the Court's errors at sentencing. He also claims ineffective assistance of counsel at both the trial level, for not raising the alleged errors to the Court, and at the appellate level, for failing to communicate with him on strategy, and failing to raise the same alleged errors. The Court will begin with a brief primer on the standard of review on § 2255 motions before analyzing Mr. Gouse's claims.

         Generally, the grounds justifying post-conviction relief under § 2255 are limited. A court may grant relief pursuant to § 2255 in instances where the sentencing court lacked jurisdiction, committed a constitutional error, or if the sentence is otherwise subject to collateral attack. United States v. Addonizio,442 U.S. 178, 185 (1979). Such collateral attacks require the petitioner to demonstrate "exceptional circumstances" that warrant redress under § 2255. See Hill v. United States,368 U.S. 424, 428 (1962). This might include an error of law, but only when "the claimed error constituted a ...