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Wren v. United States

United States District Court, E.D. Michigan, Southern Division

January 30, 2017

DAJUAN LAMARR WREN, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent. Criminal No. 10-20137

          PRESENT Honorable Gerald E. Rosen United States District Judge

          OPINION AND ORDER DENYING PETITIONER'S MOTION UNDER 28 U.S.C. § 2255 TO VACATE HIS SENTENCE

          Gerald E. Rosen United States District Judge

         I. INTRODUCTION

         By judgment entered on November 21, 2011, Petitioner DaJuan Lamarr Wren was sentenced to 216-month and 120-month terms of imprisonment, to be served concurrently, following his conviction by a jury on charges of conspiracy to possess with intent to distribute 750 grams or more of heroin and being a felon in possession of a firearm and ammunition. Petitioner's convictions and sentence were affirmed on appeal. See United States v. Wren, No. 11-2491, 528 F. App'x 500 (6th Cir. June 11, 2013).[1]

         Through the present pro se motion brought under 28 U.S.C. § 2255, Petitioner challenges his conviction as allegedly contrary to the evidence, contending that the record establishes his actual innocence of the two offenses of which the jury found him guilty. Petitioner also has filed a number of subsequent pro se motions in which he evidently seeks leave to assert additional challenges to his conviction. As discussed below, the Court finds that the claims asserted in Petitioner's initial motion already were decided against him on his direct appeal of his conviction, and that the additional claims he wishes to pursue were not timely filed.

         II. ANALYSIS

         A. Petitioner's Claims That He Is “Actually Innocent” of the Two Offenses of Conviction Are Merely Restated Versions of the Sufficiency Challenges He Pursued on Direct Appeal.

         In his present § 2255 motion, Petitioner contends that the record conclusively establishes his innocence of the two offenses of which the jury convicted him at trial. In particular, he asserts (i) that his drug conspiracy conviction is logically and factually inconsistent with the guilty plea of co- Defendant Michael Cathey, and (ii) that an affidavit submitted by Petitioner's girlfriend, Crystal Fawn Ogen, proves that he did not possess the firearm giving rise to his felon-in-possession conviction.[2]

         As the Government correctly observes, Petitioner's claims of “actual innocence” are merely repackaged challenges to the sufficiency of the evidence supporting his drug conspiracy and felon-in-possession convictions. Regarding his drug conspiracy conviction, Petitioner evidently maintains that because co-Defendant Cathey declined to admit in connection with his guilty plea that his drug conspiracy offense involved heroin, and instead agreed that the Court would resolve this issue at his sentencing hearing, [3] the absence of a jury finding or admission by Defendant Cathey as to his involvement in a heroin conspiracy somehow precluded a determination by the jury at Petitioner's trial that Petitioner's drug conspiracy offense involved heroin. Notwithstanding the dubious logic of this argument, Defendant expressly argued on direct appeal that the evidence presented at his trial was insufficient to sustain his conviction of conspiracy to possess with intent to distribute heroin, and the Sixth Circuit rejected this sufficiency challenge. See Wren, 528 F. App'x at 507. Regardless of the strength of the case against any co-defendant or the means through which the charges against this co-defendant were proven, the Sixth Circuit squarely held that sufficient evidence was presented to the jury at Petitioner's trial to sustain his drug conspiracy conviction.

         Likewise, while Petitioner also appears to argue that he is actually innocent of the felon-in-possession offense of which the jury convicted him at trial, this claim of “actual innocence” again rests on the premise that evidence in the record disproves his guilt of this charge. In particular, Petitioner points to Ms. Ogen's November 16, 2011 affidavit in which she claims ownership of a Glock 9mm firearm that formed part of the basis for Petitioner's felon-in-possession conviction.[4] Once again, however, Petitioner expressly argued on direct appeal that the evidence at trial was insufficient to sustain his felon-in-possession conviction, and the Sixth Circuit rejected this sufficiency challenge. See Wren, 528 F. App'x at 506-07.

         As the Government correctly observes, because Petitioner raised these two sufficiency challenges on direct appeal and the Sixth Circuit considered and rejected them, he cannot relitigate these matters in his present § 2255 motion. See DuPont v. United States, 76 F.3d 108, 110-11 (1996). In DuPont, 76 F.3d at 111, the court found that “the claim asserted in [the defendant's] habeas corpus petition is substantively identical to one of the issues that [the defendant] presented in his direct appeal following his conviction, ” and that the district court in that case therefore properly denied the defendant's § 2255 petition. For precisely the same reason, Petitioner here is not entitled to relief under § 2255 on grounds that are “substantively identical” to the sufficiency challenges he pursued on direct appeal.

         To be sure, DuPont allows for the possibility of “highly exceptional circumstances” that might warrant consideration of a § 2255 claim that was already pursued on direct appeal. DuPont, 76 F.3d at 110 (internal quotation marks and citations omitted). The court in DuPont identified an “intervening change in the law” as a possible example of a highly unusual circumstance, 76 F.3d at 110 (internal quotation marks and citation omitted), but Petitioner has not pointed to any intervening change in the law as allowing him to relitigate the sufficiency claims he raised on direct appeal. Instead, he seemingly suggests that he should be permitted to relitigate these claims in light of two pieces of “newly discovered” evidence: (i) an “affidavit of truth” allegedly executed by co-Defendant Cathey on April 26, 2011 and filed on the docket in this case on May 3, 2011, and (ii) Ms. Ogen's November 16, 2011 affidavit, which was filed on the Court's docket that same day.

         Even assuming that newly discovered evidence would give rise to the “highly exceptional circumstances” that warrant relitigation in a § 2255 proceeding of an issue raised on direct appeal, the Government correctly points out that neither of the above-cited affidavits qualifies as “newly discovered evidence.” In the analogous context of a post-conviction motion for a new trial, the Sixth Circuit has held that evidence qualifies as “newly discovered” if “(1) the evidence was discovered after the trial, (2) it could not have been discovered earlier with due diligence, (3) it is material and not merely cumulative or impeaching, and (4) it would likely produce an acquittal if the case was retried.” United States v. Turns, 198 F.3d 584, 586-87 (6th Cir. 2000).

         Regarding Ms. Ogen's affidavit, Ms. Ogen was called as a witness at Petitioner's trial and, as the Sixth Circuit observed, she gave testimony indicating that she rather than Petitioner “owned the ammunition and firearm” giving rise to Petitioner's felon-in-possession conviction. Wren, 528 F. App'x at 506-07. Because Ms. Ogen's affidavit is to the same effect, it is not evidence “discovered after the trial, ” and it also is “merely cumulative” of evidence introduced at Petitioner's trial. As for Defendant Cathey's affidavit, the Government observes that Petitioner could have called ...


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