United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
J. McConnell, Jr. United States District Judge
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.
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). 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,  followed by three years of supervised
release, according to the default penalty provision in 18
U.S.C. § 924(a)(2), which applies to the criminal statute
that Mr. Gouse was convicted of violating. ECF No. 62.
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
ANALYSIS OF RULE 33 CLAIM
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.
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.
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,  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.
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.
ANALYSIS OF § 2255 CLAIM
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.
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 ...