Gilmore v. United States

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

3:21-cv-530-FDW

(3:17-cr-134-FDW-DSC-19)

CYNTHIA GILMORE, )

)

Petitioner, )

)

vs. ) ORDER

)

UNITED STATES OF AMERICA, )

)

Respondent. )

___________________________________ )

THIS MATTER is before the Court on Petitioner’s pro se Motion to Vacate, Set Aside or

Correct Sentence under 28 U.S.C. § 2255, (Doc. No. 1), and the Government’s Motion to Dismiss,

(Doc. No. 9).

I. BACKGROUND1

Petitioner Cynthia Gilmore, a/k/a “Cynthia Young” and “Lady Bynt,” was charged in a 72-

count Superseding Bill of Indictment in a RICO conspiracy involving the United Blood Nation

(“UBN”) gang along with 82 co-Defendants. (3:17-CR-134 (“CR”) Doc. No. 1241). All of the

defendants named in the Superseding Indictment are members or associates of the UBN. (Id.).

Petitioner was charged with RICO conspiracy in violation of 18 U.S.C. § 1962(d) (Count One).

(3:17-cr-134 (“CR”) Doc. No. 1241). The Indictment charged that the Petitioner engaged with her

co-Defendants and others to conspire to violate 18 U.S.C. § 1962(c) by conducting and

participating, directly and indirectly, in the conduct of the affairs of the UBN enterprise through a

pattern of racketeering activity including: multiple acts involving murder in violation of North

Carolina and South Carolina law; robbery in violation of North Carolina and South Carolina law;

1 This section is not exhaustive.

multiple acts indictable under 18 U.S.C. §§ 1028, 1343, 1344, and 1951; and multiple offenses

involving narcotics trafficking in violation of 21 U.S.C. §§ 841(a)(1), 843, and 846. (Id.). The

overt acts pertaining to Petitioner include: sending gang dues to co-Defendant Pedro Gutierrez2

(OA-21, OA-27, OA-34, OA-35, OA-60, OA-77, OA-87, OA-107, OA-109, OA-120, OA-151,

OA-165, OA-176, OA-239, OA-267); conducting gang meetings inside the New York Department

of Corrections (OA-91, OA-138, OA-230); and sending letters to Gutierrez discussing gang

business (OA-148, OA-156)) (Id.).

The day before the joint trial of Petitioner, Gutierrez, and James Baxton commenced,

Petitioner moved for the Court’s recusal pursuant to 28 U.S.C. § 455. She argued that the Court’s

“impartiality might reasonably be questioned” because the Court had recused himself in a prior

UBN case, United States v. Cureton, 3:14-cr-229-MOC-1, in which a photograph of the Court was

found in Mr. Cureton’s cell. (CR Doc. No. 1499). Petitioner argued that denying recusal in the

instant case would be inconsistent with the recusal in the Cureton case, and because the Court had

found that an anonymous jury was warranted Petitioner’s case due to the nature and dangerousness

of UBN, as demonstrated by the Cureton case. (Id.). The Court disagreed, noting that, in Cureton

this Court determined that recusal was warranted in the interests of justice to avoid questions of

impartiality or accusations of personal bias, and to ensure a fair trial for the defendant, because

Mr. Cureton’s specific conduct resulted in a credible threat to the Court, and that threat had

received significant media coverage. (CR Doc. No. 1606). By contrast, in the instant criminal case,

there was no credible threat against the Court; nothing else would have any impact on the Court’s

ability to adjudicate this case; and granting a recusal in this case would set the precedent of

encouraging judge-shopping. (Id.).

2 Gutierrez was the “Godfather” of the Trey Nine Gangsters who was incarcerated at the New York Department of

Corrections.

During a lengthy jury trial, the Government presented evidence that the Petitioner is a

member of the Trey Nine Gangsters Hood of the UBN and held a leadership position over many

UBN members in North Carolina. She held many personal gang meetings with Gutierrez while

he was in the New York Department of Corrections; acted as Gutierrez’s eyes and voice in the

South; communicated with other gang members to engage in activities including a wire fraud

scheme, an armed robbery, and cocaine trafficking; collected dues from lower-ranking gang

members; and sent dues to Gutierrez. See (CR Doc. No. 1869 at ¶¶ 19-26) (PSR). Specifically,

the Government’s evidence included: (1) photographs of Petitioner wearing gang paraphernalia,

flashing gang hand signs and/or associating with other UBN members; (2) text messages from

2015 between Petitioner and a co-Defendant using UBN code to discuss matters including cocaine

trafficking, scheduling gang meetings, collecting gang dues, and other matters concerning the

leadership and organization of the gang, and violent actions taken against Crips; (3) recorded jail

calls between Petitioner and other gang members discussing UBN’s leadership structure,

collection of dues, meetings with high-ranking leaders, smuggling controlled substances into

prison for sale, and other issues; (4) visitor logs and commissary account records showing meetings

Petitioner had and moneys she paid to co-Defendant Gutierrez; (5) testimony from multiple fellow

UBN gang members as to Petitioner’s membership in the UBN and crimes undertaken; (6) text

messages and phone calls related to an armed robbery and shooting that occurred in August of

2011 which implicated Petitioner, who served as a getaway driver for one of the robbers; (7) text

messages and calls indicating Petitioner’s participation in a wire fraud scheme in which a non-

UBN member filed false tax returns for UBN members including Petitioner; and (8) Petitioner’s

admission upon her arrest that she was a member of the Bloods.

Petitioner, through counsel, filed a Motion to Dismiss at the close of the Government’s

presentation of evidence arguing that the evidence was insufficient to support a RICO conspiracy

conviction. (CR Doc. No. 1544). The jury returned a verdict finding that “Cynthia Gilmore a/k/a

‘Cynthia Young’ a/k/a ‘Lady Bynt’” is guilty as charged of RICO conspiracy. (CR Doc. No. 1567

at 1). Petitioner, through counsel, then filed a Motion for Judgment of Acquittal, Motion for New

Trial, and Motion to Dismiss. (CR Doc. No. 1560). The Court denied the Motions because, viewing

the evidence in the light most favorable to the Government, there was ample evidence to support

each element of RICO conspiracy; no new trial was warranted based on the Court’s denial of her

motion to recuse and for permitting gang affiliation evidence at trial; and because the RICO

statutes are not unconstitutional. (CR Doc. No. 1655).

The Presentence Investigation Report (“PSR”) calculated the base offense level as 20

because the underlying crimes or criminal activities included robbery. (CR Doc. No. 1869 at ¶ 55).

Seven levels were added because a firearm was discharged. (Id. at ¶ 56). Four levels were added

because the victim sustained serious bodily injury. (Id. at ¶ 57). One level was added because a

firearm, destructive device, or controlled substance was taken. (Id. at ¶ 58). Four levels were added

because Petitioner was an organizer or leader of a criminal activity involving five or more

participants or was otherwise extensive. (Id. at ¶ 60). The resulting offense level was 36. (Id. at ¶¶

62, 81). Petitioner had two criminal history points and a criminal history category of II. (Id. at ¶

102). The resulting advisory guideline range was between 210 and 240 months’ imprisonment.

(Id. at 132).

The Court sentenced Petitioner within the advisory guideline range to 228 months’

imprisonment followed by two years of supervised release. (CR Doc. No. 2234).

Petitioner argued on direct appeal that:3 the Court erred by deciding to empanel an

3 Petitioner’s direct appeal was consolidated with that of co-Defendants Baxton and Gutierrez; only the points relevant

to Petitioner are addressed in this discussion.

anonymous jury, which deprived her of a fair trial by an impartial jury; the Court abused its

discretion by deciding not to recuse himself from presiding over the criminal case; errors occurred

during jury selection; her motion to suppress her cell phone and its contents should have been

granted; the evidence was insufficient to support the RICO conspiracy; the Court erred by not

issuing a special verdict form requiring the jury to indicate specific racketeering activities that each

defendant conspired to commit; the Court erred by denying jury instructions regarding the statute

of limitations and two federal crimes connected with her tax fraud scheme; the Court should have

granted her motion for new trial because she was not a member of UBN and the evidence failed to

connect her to the charged crimes; and the sentence was procedurally and substantively

unreasonable. The Fourth Circuit Court of Appeals affirmed. United States v. Gutierrez, 963 F.3d

320 (4th Cir. 2020). The United States Supreme Court denied certiorari on October 5, 2020.

Gilmore v. United States, 141 S.Ct. 419 (2021).

Petitioner filed the instant pro se § 2255 Motion to Vacate on September 27, 2021.4 She

argues that the Government engaged in misconduct by: (1) “actively participat[ing] in using

propaganda in multiple media sources to incite fear and trepidation against anyone associated with

the United Blood Nation (UBN)” prior to indictment, after indictment, and during trial (Doc. No.

1 at 4); (2) presenting “false information, extremely prejudicial inaccuracies and false claims

concerning a murder in the detention proceedings” (id. at 5); (3) presenting false, highly prejudicial

testimony to the grand jury about Petitioner’s involvement in the murder of Malik Brown (id. at

7); and (4) failing to provide Petitioner with discovery regarding “a witness[’s] … prior conviction

for a false identity” and the Government’s communications with a “key witness” (id. at 8-9). She

4 Houston v. Lack, 487 U.S. 266, 276 (1988) (establishing the prison mailbox rule); Rule 3(d), Rules Governing §

2255 Proceedings in the United States District Courts (addressing inmate filings).

did not raise the witness discovery issue on direct appeal because counsel “did not present this

argument….” (Id. at 9). Petitioner asks the Court to dismiss, set aside, or vacate her conviction.

(Doc. No. 1 at 12).

The United States has filed a Motion to Dismiss arguing that Petitioner’s claims are

procedurally defaulted from § 2255 review, conclusory, and meritless. (Doc. No. 9). The Court

informed Petitioner of her right to respond to the Motion to Dismiss. (Doc. No. 10). Petitioner filed

a Response5 on March 4, 2022 opposing dismissal and additionally arguing (restated and

renumbered): (5) the evidence was insufficient to support her conviction (Doc. No. 16 at 2); (6)

she was wrongfully indicted and falsely prosecuted as “Cynthia Gilmore” whereas she “has always

identified and gone by Cynthia Young” (id.); (7) the Government was allowed to admit improper

bad acts evidence and hearsay evidence at the detention hearing (id. at 3-4); (8) the arrest warrant

was based on a false affidavit and required a Franks6 hearing (id. at 4); (9) Petitioner was

maliciously prosecuted (id.); and (10) the Government engaged in fraud and misconduct by

intentionally using false evidence, i.e., the testimony of Officers Parker and Sardelis, at trial (id.

at 3-5).

Petitioner has filed a declaration under penalty of perjury by her attorney, Aaron Michel,

and other evidence in support of her claims. See (Doc. No. 1-1); (Doc. No. 1-2); (Doc. No. 16-1);

(Doc. No. 16-2); (Doc. No. 18).

II. SECTION 2255 STANDARD OF REVIEW

A federal prisoner claiming that his “sentence was imposed in violation of the Constitution

or the laws of the United States, or that the court was without jurisdiction to impose such sentence,

5 Titled “Motion to Grant 28 USC 2255.”

6 Franks v. Delaware, 438 U.S. 154 (1978).

or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to

collateral attack, may move the court which imposed the sentence to vacate, set aside or correct

the sentence.” 28 U.S.C. § 2255(a).

Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that courts are to

promptly examine motions to vacate, along with “any attached exhibits and the record of prior

proceedings . . .” in order to determine whether the petitioner is entitled to any relief on the claims

set forth therein. In many cases, an evidentiary hearing is required to determine whether or not

counsel was ineffective for misadvising a petitioner about a plea offer. See generally United States

v. Witherspoon, 231 F.3d 923, 926–27 (4th Cir. 2000); 28 U.S.C.A. § 2255(b). After examining

the record in this matter, the Court finds that the arguments presented by Petitioner can be resolved

without an evidentiary hearing based on the record and governing case law. See Raines v. United

States, 423 F.2d 526, 529 (4th Cir. 1970).

III. DISCUSSION7

As a preliminary matter, the new claims that Petitioner attempts to raise in her Response

to the Government’s Motion to Dismiss will be dismissed. Motions to vacate filed pursuant to 28

U.S.C. § 2255 are subject to a one-year statute of limitations, which runs from the latest of:

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental

action in violation of the Constitution or laws of the United States is removed, if

the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme

Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have

been discovered through the exercise of due diligence.

7 Petitioner’s claims have been liberally construed, restated, and renumbered. Any arguments or claims not specifically

addressed in this Order have been considered and rejected.

28 U.S.C. § 2255(f).

Petitioner’s judgment became final for purposes of § 2255(f)(1) on October 5, 2020 when

the Supreme Court denied certiorari. See Clay v. United States, 537 U.S. 522 (2003); Gilmore,

141 S.Ct. 419. Petitioner had one year, until October 5, 2021, to file a motion to vacate. Petitioner

filed her Motion to Vacate within that one-year period, however, the Response to the

Government’s Motion to Dismiss in which she raises additional claims, was filed nearly five

months late on March 4, 2022.

An otherwise untimely claim relates back to the original timely-filed pleading if “the

amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading.” Fed. R. Civ. P. 15(c)(1)(B). For the

Court to find that an otherwise untimely claim relates back to the original timely filed petition, the

amended claim must arise from a “common core of operative facts,” and may not be dependent on

events that are separate both in time and in the substance of the facts upon which the original

claims depended. Mayle v. Felix, 545 U.S. 664 (2005).

Petitioner’s original Motion to Vacate raised claims of prosecutorial misconduct in relation

to media coverage, the presentation of false evidence of Petitioner’s involvement in a murder to

the grand jury and at the detention proceedings, and discovery violations. Petitioner’s new claims

regarding insufficiency of the evidence, misidentification, evidentiary errors, a perjured arrest

warrant affidavit, malicious prosecution, and the use of false evidence at trial, are entirely distinct

from Petitioner’s original claims and do not arise out of a common core of operative facts.

Accordingly, the new claims do not relate back to the original, timely Motion to Vacate and will

be dismissed with prejudice as time-barred.8

8 Even if these new claims were not time-barred, they would be dismissed and denied because they were improperly

raised for the first time in Petitioner’s Response to the Motion to Dismiss, were already decided by the Fourth Circuit

The Petitioner’s timely § 2255 claims are procedurally defaulted from federal habeas

review. As the Supreme Court has recognized, “[h]abeas review is an extraordinary remedy and

will not be allowed to do service for an appeal.” Bousley v. United States, 523 U.S. 614, 621

(1998) (citation and internal quotation marks omitted). Thus, in order to collaterally attack a

conviction or sentence based upon errors that could have been pursued on direct appeal, a petitioner

must show either (1) “cause” and “actual prejudice” resulting from the errors complained of, or

(2) that she is “actually innocent.” United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir.

1999) (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)). To establish cause based upon

ineffective assistance of counsel, a petitioner must show that the attorney’s performance fell below

an objective standard of reasonableness and that he suffered prejudice as a result. See Murray v.

Carrier, 477 U.S. 478, 488 (1986); Strickland v. Washington, 466 U.S. 668, 687 (1984). To

establish actual innocence, the Petitioner “must demonstrate that, in light of all the evidence, it is

more likely than not that no reasonable juror would have convicted him.” United States v.

Courtade, 929 F.3d 186, 191 (4th Cir. 2019) (quoting Bousley, 523 U.S. at 623), as amended (July

10, 2019), cert. denied, No. 19-428, 2020 WL 129578 (U.S. Jan. 13, 2020). In the context of

procedural default, the term “actual innocence” refers to “factual innocence, not mere legal

insufficiency.” Bousley, 523 U.S. at 623.

Petitioner’s Motion to Vacate raises claims of prosecutorial misconduct that could have

been, but were not, raised on direct appeal. It appears that Petitioner is attempting to establish

cause and prejudice with regards to the witness discovery claim by arguing that that counsel was

ineffective for failing to argue on direct appeal that the Government failed to timely disclose

on direct appeal, are procedurally defaulted from § 2255 review, and are meritless for the reasons set forth in the

Government’s Reply. See (Doc. No. 17).

contact between “the Government” and a “key witness.”9 (Doc. No. 1 at 9). This refers to a January

7, 2019 Letter from the prosecutor to defense counsel disclosing text messages exchanged between

an FBI agent and a confidential human source who testified at trial. (Doc. No. 1-2 at 186).

Although the messages were primarily “logistical,” and contained information “previously

disclosed through source reporting,” the prosecutor chose to disclose them “in an abundance of

caution” although such was not mandated by the Federal Rules of Criminal Procedure, federal

statute, or relevant case law. (Id.).

Petitioner has failed to establish that appellate counsel was ineffective for electing not to

raise the alleged discovery violation on direct appeal. Her bare claim that counsel “did not present

this argument on appeal” is too vague and conclusory to establish ineffective assistance of counsel.

(Doc. No. 1 at 9); see United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) (vague and

conclusory allegations in a § 2255 petition may be disposed of without further investigation by the

district court). Moreover, the witness discovery claim is not clearly stronger than the claims that

counsel chose to present on direct appeal.10 See Smith v. Murray, 477 U.S. 527, 536 (4th Cir. 2014)

(“winnowing out weaker arguments on appeal and focusing on those more likely to prevail … is

the hallmark of effective appellate advocacy.”) (internal quotation marks and citations omitted);

United States v. Allmendinger, 894 F.3d 121, 126 (4th Cir. 2018) (“The ineffective assistance

inquiry … requires a court to compare the strength of an issue not raised on direct appeal … with

the strength of the arguments that were raised.”). Nor has Petitioner demonstrated that the

conclusory discovery violation argument had a reasonable probability of success had counsel

9 It does not appear that Petitioner is attempting to demonstrate that counsel was ineffective for failing to raise on

direct appeal any other the other claims of prosecutorial misconduct that are set forth in the Motion to Vacate.

10 It is telling that the Government’s Letter disclosing the communications is dated more than seven months before

Gilmore, Gutierrez, and Baxton filed their consolidated opening brief on direct appeal, yet none of the three appellate

attorneys chose to raise the issue.

raised it on direct appeal. See generally Monroe v. Angelone, 323 F.3d 286, 299 (4th Cir. 2003) (to

secure relief under Brady v. Maryland, 373 U.S. 83 (1963), a defendant has the burden to: (1)

identify the existence of evidence favorable to the accused; (2) show that the government

suppressed the evidence; and (3) demonstrate that the suppression was material). Petitioner has

thus failed to establish a meritorious claim of ineffective assistance of counsel, and therefore,

counsel’s failure to raise the discovery claim on direct appeal cannot serve as cause and prejudice

to excuse her present procedural default. See Mikalajunas, 186 F.3d at 493 (conduct by counsel

that is not constitutionally defective cannot serve as cause and prejudice to excuse procedural

default).

Construing the Petitioner’s arguments liberally, it appears that she may be attempting to

argue that the actual innocence exception excuse her procedural default because, for instance, there

is insufficient evidence to support the conviction, and she is known as Cynthia Young rather than

Cynthia Gilmore. These are arguments of legal insufficiency rather than factual innocence, and

thus fail to support the actual innocence exception to the procedural default rule. See Bousley, 523

U.S. at 623-24. Petitioner has not come forward with any evidence demonstrating that it is more

likely than not that no reasonable juror would have convicted her had such evidence been

presented. Accordingly, the Petitioner’s § 2255 claims are procedurally defaulted from federal

habeas review, and no exception applies. The Government’s Motion to Dismiss will therefore be

granted.11

IV. CONCLUSION

For the foregoing reasons, the Motion to Vacate is denied, and the Respondent’s Motion

to Dismiss is granted.

11 Even if the Petitioner’s timely Motion to Vacate claims were not procedurally defaulted, they would be dismissed

and denied for the reasons set forth in the Government’s Motion to Dismiss. (Doc. No. 9); see also (Doc. No. 17).

IT IS, THEREFORE, ORDERED that:

1. The Motion to Vacate, Set Aside or Correct Sentence under 28 U.S.C. § 2255, (Doc.

No. 1), is DISMISSED WITH PREJUDICE and DENIED.

2. Respondent’s Motion to Dismiss, (Doc. No. 9), is GRANTED.

3. IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing

Section 2254 and Section 2255 Cases, this Court declines to issue a certificate of

appealability. See 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 322, 338

(2003) (in order to satisfy § 2253(c), a petitioner must demonstrate that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when relief is

denied on procedural grounds, a petitioner must establish both that the dispositive

procedural ruling is debatable and that the petition states a debatable claim of the

denial of a constitutional right).

4. The Clerk is instructed to close this case.

Signed: April 1, 2022

Frank D. Whitney □□

United States District Judge ae

12