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Wood v. United States

July 6, 2006

MICHAEL ANTHONY WOOD PETITIONER,
v.
UNITED STATES OF AMERICA, RESPONDENT.



The opinion of the court was delivered by: Sifton, Senior Judge

MEMORANDUM OPINION AND ORDER

On September 12, 1989, Michael Anthony Wood was convicted after a jury trial of one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §846, one count of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. §841, and one count of using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. §924(c)(1). Presently before the Court is petitioner's motion for relief from a judgment pursuant to Federal Rule of Civil Procedure 60(b)(5) and petitioner's supplemental motion under Rules 60(b) and 15(d).*fn1 For the reasons set forth below petitioner's motion is treated as a habeas petition under §2255 and the government is ordered to show cause before the undersigned on or before August 15, 2006 why the relief requested in petitioner's 2255 petition filed in 2002 should not be granted.

BACKGROUND

The following facts are drawn from the papers submitted in connection with this application and petitioner's previous applications for habeas relief, decided in written orders dated May 13, 1996, May 15, 1998, and January 26, 2004.

On December 6, 1988, an informant told Special Agent John Austin of the Drug Enforcement Administration (the "DEA") about a narcotics trafficking ring operating at 14 Turner Place in Brooklyn. Petitioner, a resident of 14 Turner Place, gave the informant a beeper number to call to purchase narcotics. The informant stated that petitioner expected a delivery of nine kilograms of cocaine on Tuesday, December 6, 1988.

Based on this information, Agent Austin obtained a warrant to search 14 Turner Place and began to conduct surveillance of the premise. At 10:15 p.m., a man later identified as Jorge Fuentes entered the building empty-handed and left moments later with a plastic bag. Fuentes got into a livery cab, which was later stopped by DEA Agents Gerard McAleer and Kenneth Dinino. The agents found approximately $32,000 in cash, bundled with rubber bands, in the plastic bag carried by Fuentes. Thereafter, another male, later identified as petitioner Michael Wood, entered the Turner Place premises.

At 10:45 p.m., DEA agents executed the search warrant. Agents Dinino and McAleer among others first knocked on the front door of 14 Turner Place and announced themselves as DEA agents. When no one answered, the agents broke down the door with a sledgehammer. In the premises, the agents found Michael Wood and a woman named Patricia Crossman.

In one rear bedroom, the agents found a loaded .45 caliber semi-automatic pistol under the mattress of the bed, a cellular phone, and documents in the names Cecil Simon and Cecil Jackson. In another bedroom, agents found over 600 grams of cocaine base of 90% purity, a loaded Tech 9 submachine gun, a loaded 9 millimeter semi-automatic pistol, and documents with petitioner's name on them. In the kitchen, agents found $72,000 in cash, crack vials, glassine bags, a digital scale, ammunition, and a Pyrex pot containing crack residue. In the dining room, agents found a notebook containing entries reflecting narcotics transactions.

Petitioner was convicted after trial of one count of conspiracy to distribute and possess with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 846, one count of possession with intent to distribute more than 50 grams of cocaine base in violation of 21 U.S.C. § 841, and one count of using and carrying a firearm in relation to a drug-trafficking offense in violation of 18 U.S.C. § 924 (c)(1). I sentenced petitioner to concurrent sentences of 235 months imprisonment on the conspiracy and substantive drug counts and to a consecutive 60-month prison sentence on the gun count. In a nonpublished order issued on March 2, 1990, the Court of Appeals affirmed Wood's conviction. U.S. v. Wood, No. 89-1465, 1466.

On October 4, 1994 Wood filed his first petition for relief pursuant to 28 U.S.C. §2255, premised on allegations that the government had "framed" him. I denied this petition in a memorandum and order dated May 13, 1996.

Thereafter, Wood moved to vacate his conviction for violating 18 U.S.C §924(c)(1) and to modify his sentence on the drug counts. In a May 15, 1998 memorandum and order, I vacated Wood's conviction on the gun count in light of Bailey v. U.S., 516 U.S. 137 (1995),*fn2 and ordered that Wood be resentenced on the drug counts. Because Wood had filed the earlier petition for collateral relief pursuant to 28 U.S.C. §2255, I construed Wood's subsequent filing as a petition under 28 U.S.C. §2241 pursuant to Triestman v. United States, 124 F.3d 361, 372 (2d Cir. 1997).*fn3

At the May 20, 1999 resentencing I found the minimum sentence in the applicable Guidelines range to be 292 months. I decided to downwardly depart from that sentence to impose to concurrent terms of 264 months, in light of Wood's post-conviction rehabilitation and, "his acknowledgment . . . of his responsibility for both the offense and for testifying falsely during his trial," admissions having the consequence of "foregoing a claim of actual innocence." (Resentencing Minutes at 18-19).

Woods appealed the resentencing, challenging his firearms enhancement and the use of the crack cocaine guidelines.*fn4 The Court of Appeals affirmed the conviction. U.S. v. Wood, No. 99-1298 (2d Cir. Aug. 9., 2000).

Woods sought certiorari, challenging the use of the crack cocaine guidelines pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), which had been decided on June 26, 2000.*fn5 The Supreme Court denied certiorari on March 19, 2001 and denied a petition ...


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