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United States v. Green

United States District Court, D. Montana, Billings Division

August 9, 2019

UNITED STATES OF AMERICA, Plaintiff/Respondent,
v.
ROBERT W. GREEN, Defendant/Movant.

          ORDER DENYING § 2255 MOTION AND DENYING CERTIFICATE OF APPEALABILITY

          DANA L. CHRISTENSEN CHIEF DISTRICT JUDGE UNITED STATES DISTRICT COURT

         This case comes before the Court on Defendant/Movant Green's motion to vacate, set aside, or correct the sentence under 28 U.S.C. § 2255. On February 15, 2017, the Court of Appeals granted Green leave to file a second or successive motion in this Court. Green, represented by Assistant Federal Defender David Ness, filed an amended motion shortly thereafter. The United States has filed an answer and Green a reply.

         I. Background

         On May 24, 2004, Green was indicted on drug and gun charges along with twelve co-defendants. One of his co-defendants was Martin Garcia.

         On August 19, 2004, the grand jury handed down a Superseding Indictment. Along with Garcia and others, Green was charged with one count of conspiracy to distribute more than 50 grams of actual methamphetamine between April and December 2003, a violation of 21 U.S.C. § 846 (Count 1); one count of distributing methamphetamine or possessing it with intent to distribute in April 2003, a violation of 21 U.S.C. § 841(a)(1) (Count 2); three counts of possessing various quantities of methamphetamine with intent to distribute, violations of 21 U.S.C. § 841(a)(1) (Counts 3, 20, and 25); one count of possessing a firearm in furtherance of a drug trafficking crime, violations of 18 U.S.C. § 924(c)(1) (Count 21); and one count of distributing more than 5 grams of actual methamphetamine on December 9, 2003, a violation of 21 U.S.C. § 841(a)(1) (Count 24).

         Green and Garcia were tried together before a jury in August 2005. Twenty-seven witnesses testified, including five co-defendants as well as other cooperating witnesses. The jury deliberated for a day. Green was convicted of Counts 1, 3, 20, 21, 24, and 25.[1]

         At sentencing, Green was held responsible for 2.638 kilograms of methamphetamine. His total offense level was 34. With a criminal history category of IV, his advisory guideline range was 210 to 262 months. He was sentenced to serve 220 months on Counts 1, 3, 20, 24, and 25, all to run concurrently, and 60 months on Count 21, consecutive to the other counts, for a total term of 280 months. See Minutes (Docs. 514, 519); Judgment (Doc. 521) at 2-3.

         Green appealed. He argued that the evidence was not sufficient to support his conviction on Count 21 and that his motion for new trial, based on evidence of his below-average intelligence, should have been granted. On August 10, 2007, the Ninth Circuit Court of Appeals rejected his arguments and affirmed his conviction. See United States v. Green, No. 06-30332 (9th Cir. Aug. 10, 2007) (unpublished mem. disp.) (Doc. 541).

         Green petitioned the United States Supreme Court for a writ of certiorari. The petition was denied on January 7, 2008. See Green v. United States, No. 07-7695 (U.S. Jan. 7, 2008).

         On September 2, 2008, Green, acting pro se9 moved to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. The motion and a certificate of appealability were denied on October 31, 2008. The Court of Appeals denied a certificate of appealability on December 21, 2009. See Mot. § 2255 (Doc. 598); Orders (Docs. 604, 674).

         On May 27, 2015, pursuant to 18 U.S.C. § 3582(c)(2) and Amendments 782 and 788 to the United States Sentencing Guidelines, Green's sentence on the drug counts was reduced from 220 months to 176 months. With the remaining 60-month consecutive term on Counts 11 and 12, Green is now serving a total prison sentence of 236 months. See [Second] Am. Judgment (Doc. 863) at 1.

         On February 3, 2016, then-United States Attorney Michael W. Cotter wrote a letter to many defendants, including Green, who were prosecuted by Assistant United States Attorney James Seykora and found guilty at trial. See Letter (Doc. 883-1 at 7-8). At the time the letter was sent, the United States was aware of three cases in which Seykora failed to disclose exculpatory or impeaching information or failed to correct false testimony. The first of these cases was filed by Green's co-defendant, Martin Garcia.

         II. Co-Defendant Garcia's § 2255 Motion

         On August 14, 2009-about ten months after Green's § 2255 motion had been denied in this Court and while his appeal was pending-Green's co-defendant Garcia, represented by counsel Wendy Holton, filed a motion under 28 U.S.C. § 2255. Among other claims, Garcia asserted that his trial counsel was ineffective because he failed to impeach an important witness, Gwynne Black, by showing that she received immunity for her testimony and by demonstrating discrepancies among her grand jury testimony, her debriefing with case agents, and her trial testimony. He made similar allegations with respect to witness Prem, Black's mother, and he alleged the United States violated his right to due process by failing to correct the record regarding Black's immunity, contrary to Napue v. Illinois, 360 U.S. 264 (1959). See Order (Doc. 746) at 1-2, 26.

         The trial testimony at issue came at the end of Black's testimony on ...


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