Cole v. United States

124 F. Supp. 3d 474, 2015 U.S. Dist. LEXIS 114056, 2015 WL 5043220
CourtDistrict Court, E.D. Pennsylvania
DecidedAugust 26, 2015
DocketCRIMINAL ACTION NO. 91-570-02; CIVIL ACTION NO. 14-2987
StatusPublished

This text of 124 F. Supp. 3d 474 (Cole v. United States) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cole v. United States, 124 F. Supp. 3d 474, 2015 U.S. Dist. LEXIS 114056, 2015 WL 5043220 (E.D. Pa. 2015).

Opinion

MEMORANDUM

EDUARDO C. ROBRENO, District Judge.

Defendant James Cole (“Cole”) is a federal prisoner incarcerated at USP-Atlanta in Georgia. Though he was sentenced almost a quarter of a century ago, Cole continues to challenge his sentence. Since filing his pro se petition under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence—which the Court recently denied—Cole has filed a raft of additional requests1 and motions. Because Cole’s motions are all either meritless or constitute successive motions under § 2255—and Cole has not received permission fi’om the Third Circuit Court of Appeals to file them—the Court will deny the motions.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On October 2,1991, a federal grand jury returned a 32-count indictment charging Cole and 25 codefendants with drug and firearm offenses.. As alleged in the indictment, Cole was one of the founders and ringleaders of a large-scale drug organization known as the “JBM” or “Junior Black Mafia,” which distributed vast amounts of cocaine in Philadelphia between 1985 and 1991. Cole was charged in six counts of the indictment. When he learned of the charges he fled, and remained a fugitive until his arrest on May 12, 1993.

After a jury trial before the Honorable Marvin Katz, -Cole was convicted of conspiring to distribute and to possess with intent to distribute cocaine and heroin, in violation of 21 U.S.C. § 846; engaging in a continuing criminal' enterprise, in violation of 21 U.S.C. § 848; and four counts of possession of cocaine with intent to distribute, irj violation of 21 U.S.C. § 841(a)(1).

' Cole’s sentencing hearing was held on February 18, 1994, at which the district court sentencing him to life imprisonment. United States v. Cole, 845 F.Supp. 270 (E.D.Pa.1994) (“Cole I”). After Cole appealed his conviction and sentence, the Third Circuit affirmed the judgment of sentence. United States v. Cole, 47 F.3d 1162 (3d Cir.1995).

Since then, Cole has filed numerous petitions for post-conviction relief. In 1997, he sought relief under 28 U.S.C. § 2255. As a result, the district court vacated the conspiracy conviction on the basis of the Supreme Court’s decision in Rutledge v. United States, 517 U.S. 292, 307, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996), which held that conspiracy to distribute narcotics is a lesser included offense of a continuing criminal enterprise charge. Nevertheless, this ruling had no impact on his sentence.

All of Cole’s other requests for relief have been denied. See Cole v. Warden of Allenwood, 215 Fed.Appx. 128, 129-30 (3d Cir.2007) (affirming the dismissal of Cole’s 28 U.S.C. § 2241 petition asserting ineffectiveness of trial counsel, and recounting the lengthy history of his other unsuccessful claims). Specifically, between 2001 and 2007 the Third Circuit has rejected Cole’s-requests to file successive § 2255 motions on four separate occasions. See id.

[476]*476On February 13, 2015, this Court denied another § 2255 motion filed by Cole as a successive § 2255 motion filed without permission from the Third Circuit. Cole v. United States, No. 14-2987, 2015 WL 641259, at *1 (E.D.Pa. Feb. 13, 2015) (“Cole II").

On April 6, 2015, the Court entered a Scheduling Order (ECF No. 540) that directed the Government to respond to the following motions that Cole filed subsequent to his § 2255 motion, and that remain outstanding:

1. Motion to Strike (ECF No. 498);
2. Motion to Add Claim of Actual Innocence (ECF No. 505);
3. Motion Pursuant to Independent Action Rule 60(d) (ECF No. 506);
4. Motion to Reopen Docket Nos. 360, 366, 470, and 482 (ECF No. 511);
5. Motion to Supplement the Record (ECF No. 514).

On April 8, 2015, the Government filed a combined response to the above-listed motions, as well as to the following motions:

6. Request for Admissions (ECF No. 516); and
7. First Amended and Supplemental Initial Disclosures Rule 26(e)(1) (ECF No. 517).

Since the Government filed its response, Cole filed the following additional motions:

8. Motion for Extension of Time to File Reply to Government Response (ECF No. 543);
9. Request for Admissions (ECF No. 544);
10. Motion for Summary Judgment (ECF No. 546);
11. Motion for Expedited Consideration of the § 3582(c)(2) Motion (ECF No. 551); and
12. Motion to Correct an Otherwise Illegal Sentence (ECF No. 556).

These motions are all ripe for disposition.

II. MOTION FILED PURSUANT TO 18 U.S.C. § 3582(C)(2)

A. Background

In 2010, Cole filed a motion to have his sentence reduced pursuant to 18 U.S.C. § 3582(c)(2), in light of retroactive Amendment 505—which reduced the maximum drug offense level under § 2D1.1 from 42 to 38. ECF No. 360.

However, before this Court ruled on the motion, Cole filed a statement on September 13, 2010, indicating that he wished to withdraw the motion if the Court did not appoint him counsel. ECF No. 364. Accordingly, on October 6, 2010, the Court denied Cole’s request for the appointment of counsel and denied his § 3582(c)(2) motion without prejudice. ECF No. 368. Although the Court did not reach the merits of the motion, it did state that “[biased upon a review of Defendant’s motion ([ECF No.] 360) and the Government’s response ([ECF No.] 366), Defendant’s motion appears to have no merit.” ECF No. 368.

On December 5, 2013, more than three years later, Cole filed a motion “to reopen” his § 3582(c)(2) motion from 2010. ECF No. 470. On May 19, 2014, however, Cole again requested to withdraw the motion, citing the Court’s apparent inaction and stating that he planned to supplement it in the future. ECF No. 489. Before the Court ruled on this request, on June 6, 2014, Cole filed a motion to disregard the withdrawal request, indicating that he planned to file an additional motion regarding Amendment 505. ECF No. 493. Also on June 6, 2014, Cole filed a motion to strike both the Government’s initial response to his § 3582(c)(2) motion (ECF [477]*477No. 366) as well as a supplement Cole had filed to his motion (ECF No.

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124 F. Supp. 3d 474, 2015 U.S. Dist. LEXIS 114056, 2015 WL 5043220, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-united-states-paed-2015.