United States District Court, E.D. North Carolina, Western Division
W. FLANAGAN, United States District Judge
filed this petition for a writ of habeas corpus pursuant to
28 U.S.C. § 2241. The matter is before the court for a
preliminary review under 28 U.S.C. § 2243, which
provides that the court need not seek a response from the
respondent when it is clear on the face of the petition that
petitioner is not entitled to relief.
August 16, 1988, petitioner and numerous co-defendants were
found guilty after a jury trial of conspiring to distribute
narcotics and engaging in a continuing criminal enterprise.
See United States v. Harris, 1990 WL 27340, at *1
(4th Cir. 1990). At sentencing, “the district court
imposed an upward departure which increased Freeman's
sentence to life without parole. The district court based the
upward departure on Guidelines § 5K2.1 which
specifically authorizes such departures when death results.
The basis for the upward departure was that Freeman had been
held responsible for two of the murders occurring during the
life of the conspiracy.” Harris, 1990 WL
27340, at *6. Petitioner appealed, and his conviction and
sentence were affirmed. Specifically, the Fourth Circuit
From the summer of 1984 until the end of October of that year
George Harris, Johney Freeman, and Roland Scott Harvey
brought approximately a pound and a half of high purity,
eighty to ninety percent, cocaine from New York into the
Norfolk area every four days. This cocaine was distributed
from the apartment of George Harris' wife, Crystal
Harris. The operation had regular business hours, salaried
employees, and restricted access employing extraordinary
security with armed guards who carried shotguns and loaded
pistols. George Harris and Johney Freeman had hired security
guards, outfitted with walkie-talkie radios, to be on the
lookout for law enforcement officials or individuals
attempting to rob the premises of its daily cash receipts or
cocaine stash. They equipped the apartment with a police
scanner to monitor police radio frequencies and floodlights
to provide added security from the rear.
Evidence adduced at trial revealed the following chain of
command. George Harris acted as chief executive officer,
exercising overall control over the group, while Johney
Freeman managed and supervised day-to-day operations during
George Harris' absences. Crystal Harris acted as the
secretary-treasurer, provided money to start the business,
and set up checking accounts to handle the funds. Fencel
Martin (Martin) was an insider who handled cocaine sales from
the premises frequently armed with a revolver. Carolyn
Patterson (Patterson) maintained a residence which the
organization used for storing cocaine and money. Later in
1986 Patterson delivered cocaine and received payments from
the organization. Gigi Long Freeman (Gigi), the wife of
Johney Freeman, lived at the main headquarters for a period
of time and later transported cocaine on at least three
occasions from the New York area to Norfolk.
The cocaine business continued until June of 1985 when
execution of four state search warrants led to the arrest of
the eleven co-conspirators. Roland Scott Harvey, one of the
conspirators, testified publicly under oath subject to
cross-examination at a state court preliminary hearing
against defendants Crystal Harris, Johney Freeman, Fencel
Martin and Carolyn Patterson. These four defendants were
present at the preliminary hearing. Witnesses in the ensuing
trial testified to a conversation in which “Mike,
” Roland Scott Harvey's assassin, discussed how he
and Freeman had killed Harvey and received $10, 000 for doing
the murder. On May 26, 1986, Johney Freeman returned to the
Norfolk, Virginia, area with “Mike” and directed
one of his colleagues to purchase a firearm so that
“Mike” could murder yet another witness. On the
night of May 26, “Mike” shot the witness six
times with a .357 Magnum causing instant death. Finally, on
August 20, 1986, the final victim was murdered. Evidence at
trial suggested that either Harris or Freeman arranged this
murder . . .
Johney Freeman's assertion that his sentence was
disproportionate because the evidence against him was
insufficient to support his culpability for the murders is
similarly without merit. The evidence taken in the light most
favorable to the government was more than adequate to support
the finding that Freeman planned the murders. As noted
earlier, under Sentencing Guidelines §§ 5K2.0 and
5K2.1, upward departure is authorized inter alia
where death results. In the instant case, Johney Freeman
twice hired a contract killer to murder government witnesses.
We find no abuse in the district court's exercise of his
discretion to grant an upward departure pursuant to
Guidelines § 5K2.1.
Finally, adequate evidence supports the district court's
finding that Johney Freeman was a member of the conspiracy
beyond the effective date of the Guidelines and this finding
is not clearly erroneous. The district court properly
sentenced Freeman under the Sentencing Guidelines.
Harris, 1990 WL 27340, at *1, 6-7.
April 29, 1997, petitioner filed a motion to vacate, correct,
or modify his sentence pursuant to 28 U.S.C. § 2255 in
the sentencing court, which was denied. Freeman v. United
States of America, Case No. 2:97-cv-409-jcc
(E.D.Va. April 29, 1997). Petitioner appealed, and the Fourth
Circuit found no reversible error. United States v.
Freeman, 161 F.3d 4 (4th Cir. 1998). Petitioner has
since filed numerous post-conviction motions which have been
construed as successive § 2255 motions and denied.
See United States v. Freeman, 35 F. App'x 101
(4th Cir. 2002); United States v. Freeman,
108 F. App'x 789, 790 (4th Cir. 2004); United States
v. Freeman, 293 F. App'x 209, 210 (4th Cir. 2008);
United States v. Freeman, 390 F. App'x 230, 231
(4th Cir. 2010); United States v. Freeman,
No. 2:88CR76-2, 2016 WL 3525279, at *1 (E.D. Va. Jan. 22,
2016), aff'd, 667 F. App'x 787 (4th Cir.
2016). Petitioner's motions for a reduction of sentence
under 18 U.S.C. § 3582 have also been also denied.
See, e.g., United States v.
Freeman, No. 2:88CR76, 2015 WL 11090933, at *1 (E.D. Va.
May 22, 2015), reconsideration denied, No.
2:88CR76-2, 2016 WL 3525279 (E.D. Va. Jan. 22, 2016),
aff'd, 667 F.App'x 787 (4th Cir. 2016).
September 28, 2016, petitioner filed the instant petition
alleging that his sentence violates the Ex Post Facto clause
in light of Peugh v. United States, 133 S.Ct. 2072
petitioner filed the current action under 28 U.S.C. §
2241, he is attacking the legality, rather than the
execution, of his sentence. Specifically, petitioner asserts
that the sentencing court improperly applied the United
States Sentencing Guidelines, and that a retroactive
amendment to the guidelines has rendered his sentence in
violation of the Ex Post Facto Clause. The legality of
one's sentence must be challenged under 28 U.S.C. §
2255 unless “the remedy by motion [under § 2255]
is inadequate or ineffective to test the legality of his
detention.” 28 U.S.C. § 2255; see In re
Vial, 115 F.3d 1192, 1194 (4th Cir. 1997) (en banc). A
procedural impediment to § 2255 ...