Opinion
Criminal No. 01-42(1) (JRT/FLN), Civil No. 03-1171 (JRT).
July 22, 2003.
Robert Charles Robinson, Federal Prison Camp, Duluth, MN, Pro se.
Susan Nolting Burke, Assistant United States Attorney, Office of the United States Attorney, Minneapolis, MN, Attorney for Respondent.
MEMORANDUM OPINION AND ORDER
On February 26, 2002, this Court sentenced petitioner Robert Charles Robinson ("Robinson") to 97 months after Robinson pled guilty to drug charges. He has filed a motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons set forth below, the Court dismisses Robinson's motion.
BACKGROUND
Robinson was arrested on January 24, 2001 and charged with two counts of possession with intent to distribute methamphetamine. On September 5, 2001 a Grand Jury returned a superseding indictment adding a conspiracy charge against Robinson and adding Sharon Ann Chute ("Chute"), Robinson's girlfriend, as a co-defendant.
On September 25, 2001, Robinson entered into a plea agreement (the "Agreement") with the United States pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A). The Agreement stipulated that if Robinson pled guilty to the charge of conspiring to distribute and to possess with intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 841(b)(1)(B), all in violation of 21 U.S.C. § 846, the United States would move to drop the remaining two charges against Robinson at the time of sentencing.
The parties stipulated in the Agreement that Robinson understood and agreed that he would receive a statutory minimum sentence of five years with an additional four years of supervised release but that the exact sentence would be calculated according to the Federal Sentencing Guidelines at the sentencing hearing. Under these guidelines, Robinson agreed that his base offense level was 28 and that he fell within Criminal History Category IV.
The parties further agreed that his sentence should be increased by two levels for obstruction of justice. The Agreement did not specify the relevant conduct for the obstruction enhancement, but the record shows that the Court considered two separate possibilities. First, Robinson sent a letter to his brother's girlfriend, Sara Jo Jacques ("Jacques"), while he was detained. The letter informed Jacques of his upcoming trial and gave her instructions on how to answer questions from the prosecutor if she were called to testify. Second, the Court considered the possibility that Robinson unlawfully influenced Chute to leave the area during the trial in order to make herself unavailable to testify.
The letter contained the following instructions: "For example; This is what the prosecutor asks you, Did you or what is your knowledge of Mr. Robinson's involvement in selling drugs from 793 799 Orange? ANSWER) I've never known him to ever sell drugs." Presentence Report at 3.
Following Robinson's arrest and while in detention, approximately 410 calls were made from Chute's residence to Robinson, which were recorded. Robinson and Chute discussed, among other things, several aspects of Robinson's upcoming trial. Shortly after Robinson informed Chute of the trial date, Chute requested two weeks of vacation from work during the time when the trial was scheduled, made a large withdrawal from her bank account and left her car in a parking lot. Investigators were unable to locate her for a period of time. See Presentence Report at 3.
Finally, the Agreement stipulated that Robinson would waive all rights to a trial and to "appeal or contest, directly or collaterally, the Court's sentence on any ground" as long as the Court sentenced him at or below 137 months imprisonment. (Plea Agreement at 5.)
"Plea Agreement" refers to the document titled "Plea Agreement and Sentencing Stipulations" [Docket No. 82] signed by Susan J. Nolting, Assistant U.S. Attorney, Robert Robinson, and Barry V. Voss, Esq. on September 25, 2001.
During the Court's hearing to receive Robinson's guilty plea, the Court confirmed through an extensive colloquy with Robinson that Robinson agreed that the obstruction enhancement would be applied (Plea Hearing Tr. at 9) and that he was waiving his right to appeal or collaterally attack any sentence under 137 months. (Id. at 11.)
"Plea Hearing Tr." refers to the consecutively paginated transcript of the hearing to receive Robinson's guilty plea [Docket No. 104] on September 25, 2001.
During the sentencing hearing, the Court considered several objections raised by Robinson's attorney, Barry Voss, to the Probation Officer's Report on the Presentence Investigation. Specifically, Voss successfully argued for a downward departure to criminal history category III, claiming that category IV overrepresented the seriousness of Robinson's criminal history. This resulted in a decreased guideline sentencing range of between 97 and 121 months. The court also considered Voss's argument that the relevant conduct for the obstruction enhancement should be limited to the letter sent by Robinson to Jacques, to the exclusion of any implication that he influenced Chute to avoid testifying at trial. Voss did not argue that this should affect the two-level enhancement in sentencing. Rather, he meant to distinguish between manipulation of a co-defendant (Chute) and a witness (Jacques) for any effect this might have on the terms of Robinson's imprisonment. The Court determined that the record was not clear as to whether Robinson influenced Chute to make herself unavailable to testify, but that Robinson did obstruct justice by his letter to Jacques. (Sentencing Tr. at 9-11.)
"Sentencing Tr." refers to the consecutively paginated transcript of Robinson's sentencing hearing on February 26, 2002 [Docket No. 105].
Robinson was sentenced to serve 97 months followed by four years of supervised release. He filed this § 2255 motion on February 21, 2003.
ANALYSIS
Section 2255 provides in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, 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. Robinson argues that his sentence should be vacated or corrected because he was denied effective assistance of counsel, and seeks an evidentiary hearing. Robinson bases his claims on his assertion that his sentence should not have been enhanced by two points for obstruction of justice, that he did not obstruct justice and that Voss's refusal to argue this point or appeal the sentence caused him to suffer prejudice.
I. Waiver of Right to Appeal or Collaterally Attack Sentence
Robinson's § 2255 claim fails based on the terms of the Agreement, which he entered voluntarily and knowingly. Plea agreements are not prohibited by the Constitution, even though they allow defendants to waive important constitutional rights by pleading guilty. United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992) (citing Newton v. Rumery, 480 U.S. 386, 393 (1987)). Plea agreements are important components of our country's criminal justice system, and bring with them the virtues of "speed, economy and finality." Rutan, 956 F.2d at 829. Waivers of the right to appeal sentences imposed pursuant to plea agreements are important to provide finality and encourage both prosecution and defense to enter these agreements, which allow defendants to gain concessions from the government. Id.
In general, there is "no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context." DeRoo v. United States, 223 F.3d 919, 924 (8th Cir. 2000). The Eighth Circuit has also enforced a plea agreement in which the defendant promised to "waive his right to appeal, or challenge via post-conviction writs of habeas corpus or coram nobis, the district court's entry of judgment and imposition of sentence." United States v. His Law, 85 F.3d 379, 379 (8th Cir. 1996).
Although it is the rule that waivers of direct-appeal and collateral attack rights should be enforced, there are exceptions. Waivers should not be enforced when the sentence imposed was illegal or not in accordance with the terms of the agreement. United States v. Michelson, 141 F.3d 867, 872 (8th Cir. 1998) (citing Rutan, 956 F.2d at 829-30). A showing that the defendant did not make a knowing and voluntary decision to waive these rights will also render such a waiver unenforceable. United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999). The Eighth Circuit has acknowledged that such a decision may not be knowing and voluntary if the plea agreement is the result of advice outside "the range of competence demanded of attorneys in criminal cases." DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000) (citations omitted).
In this case, the Court imposed a sentence that was legal and in accordance with the terms of the Agreement. Robinson's sentence of 97 months is substantially below the maximum of 137 months allowed in the Agreement. Likewise, the two-point enhancement for obstruction of justice is supported by the Sentencing Guidelines and was included in the terms of the Agreement. (Plea Agreement at 3-4.)
Robinson entered into the Agreement knowingly and voluntarily. This is demonstrated by Robinson's signature on the last page of the Agreement itself. It is further shown by the Court's extensive colloquy with Robinson pursuant to Federal Rule of Criminal Procedure 11(b)(1), in which the Court determined that Robinson was voluntarily and knowingly agreeing to the obstruction enhancement (Plea Hearing Tr. at 9) and to the waiver of his right to appeal or collaterally attack the sentence. (Id. at 11.)
Robinson's claim that he did not receive effective assistance of counsel due to Voss's failure to argue the obstruction of justice issue does not include any assertion that Voss's advice resulted in Robinson's inability to enter into the Agreement knowingly and voluntarily. As discussed above, Robinson fully understood that the two-point enhancement for obstruction of justice would be included in the sentencing calculation. (Plea Agreement at 3-4, Plea Hearing Tr. at 9.) For these reasons, Robinson's collateral attack on his sentence of 97 months must be dismissed.
II. Ineffective Assistance of Counsel
Even if Robinson's motion was not barred by his voluntary and knowing agreement to waive his right to appeal or collaterally attack his sentence, he would not prevail on the merits of his claim that he did not receive effective assistance of counsel.
To prevail on his claim, Robinson must show that Voss's performance was deficient, and that he suffered prejudice as a result of that poor performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir. 1996). Specifically, Robinson must show that Voss's "representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 687-88. A court's review of counsel's performance must be highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. See id. at 689. If Robinson were to be successful in showing that Voss's representation was deficient, he would have to further show that the error resulted in actual prejudice to him. He must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. See also El-Tabach v. Hopkins, 997 F.2d 386, 389 (8th Cir. 1993). Robinson must show that the proceedings were rendered fundamentally unfair or unreliable by counsel's deficient performance. El-Tabach, 997 F.2d at 389.
Robinson cannot show that Voss's performance was deficient or that he suffered any prejudice. Robinson voluntarily agreed that his sentence would be enhanced by two levels for obstruction and waived all rights to appeal or collaterally attack his sentence. Therefore, the obstruction enhancement was not an appealable issue, and Voss's decision not to pursue it at sentencing or on appeal did not amount to deficient legal counseling or result in prejudice to Robinson. Robinson's own statements under oath at the plea hearing as well as Voss's active advocacy for Robinson, which resulted in a downward departure to a lower criminal history category, serve to strengthen this conclusion. Accordingly, Robinson is bound by his waiver of appellate rights.
III. Robinson's Right to Challenge Use of Letter to Sara Jo Jacques
Robinson claims that he is innocent of obstructing justice. To support this claim he asserts that his telephone contacts with Chute did not amount to obstruction of justice. This issue was addressed at the sentencing hearing, where the Court determined that it was unclear if Robinson influenced Chute to make herself unavailable to testify but that his letter to Jacques sufficed to justify the obstruction enhancement. (Sentencing Tr. at 9.)
Robinson argues that the Jacques letter should not be considered because "Ms. Jacques was not a government witness at the time the letter was written and the letter was obtained illegally and without a search warrant, and by threat." (Robinson's Habeas Motion and Attached Memorandum at 6-7.) This argument is without merit for two reasons. First, it is irrelevant that Jacques was not a government witness when the letter was written. Jacques was a potential witness, and it is clear from the text of the letter that Robinson's intent was to influence her testimony should she be called to testify. See, e.g., United States v. Nunn, 940 F.2d 1128, 1133 (8th Cir. 1991) (holding that telephone threat made to an unindicted coconspirator constituted obstruction of justice); United States v. Searcy, 316 F.3d 550 (5th Cir. 2002) (affirming upward adjustment for obstruction of justice when defendant interfered with potential government witness). Second, Jacques is the only individual who may claim an injury by the police's illegal seizure of the letter, which became her property when she received it. Rakas v. United States, 439 U.S. 128, 133 (1978) ("Fourth amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.") (citation and internal quotation marks omitted). Once Robinson sent the letter to Jacques, he lost the ability to bring any claims that his rights were violated by the police in obtaining it.
IV. Appealability
For purposes of appeal under 28 U.S.C. § 2253, the Court finds that it is unlikely that some other court would decide the issues raised in Robinson's petition differently. For this reason, the Court concludes that Robinson has not made a "substantial showing of the denial of a constitutional right," as is required under the appeal statute for the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2).
ORDER
Based on the foregoing, and all of the records, files and proceedings herein, IT IS HEREBY ORDERED that:
1. Defendant's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255 [Criminal Docket No. 99] is DISMISSED WITH PREJUDICE.
2. The Court does not certify the issues raised in defendant's motion for appeal under 28 U.S.C. § 2253(c)(2).