Opinion
Civil No. CCB-01-2879, Criminal No. CCB-99-0541
May 7, 2004
MEMORANDUM
Now pending before the court is a pro se petition by James Bernard Scott, III under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, and several related motions filed by Scott. No hearing is deemed necessary. See Rule 8(a), Rules Governing § 2255 Proceedings. For the reasons stated below, Scott's first motion to amend his § 2255 petition will be granted, but his § 2255 petition and all other motions will be denied.
BACKGROUND
Between 1998 and August 4, 1999, Scott conspired with others to possess with intent to distribute and to distribute cocaine. For at least the last year of that conspiracy, a co-conspirator, Bryan Michael Nunez-Rivas, delivered between 1 to 2 kilograms of cocaine one or two times per week to Scott and other co-conspirators in Baltimore. On August 4, 1999, Scott was stopped by the police while driving in his van and was arrested. During subsequent searches of Scott's van and apartment, the police recovered over 200 grams of crack cocaine, over 500 grams of cocaine powder, drug paraphernalia, approximately $10,000 in cash, and four handguns. Scott initially was charged under Maryland state law with five counts of first degree assault, two counts of drug possession, and one count of possession of drug paraphernalia.
On December 8, 1999, the federal government filed a superseding information charging Scott with one count of conspiracy to distribute cocaine, in violation of 21 U.S.C. § 846. That same day Scott signed an agreement with the federal government to plead guilty to this charge in exchange for dismissal of the state charges. The government states that if Scott had not pled guilty as promised, then the federal charges would have been dismissed in favor of prosecution on the charges pending in state court. (Gov't's Resp., 12/3/01, at Ex. 3, Webster Aff, at ¶ 7.) On January 6, 2000, Scott waived his right to prosecution by grand jury indictment and pled guilty to the one count in the superseding federal information.
Under his plea agreement Scott waived his right to appeal whatever sentence was imposed, but reserved the right to appeal if the sentence exceeded the statutory maximum or included any upward or downward departures under the Sentencing Guidelines. On May 12, 2000, Scott was sentenced by the court to 168 months in prison and three years of supervised release. On May 16, 2000, Scott noted an appeal with the Fourth Circuit. Scott withdrew this appeal on November 21, 2000, however, and signed a waiver of his appellate rights at that time. On September 27, 2001 Scott filed his motion to vacate, set aside, or correct his sentence, alleging six separate grounds: (1) failure to allege drug quantity in the information to which he pled guilty; (2) ineffective assistance of counsel by his appellate attorney, G. Arthur Robbins, for advising Scott to waive his appellate rights; and (3) ineffective assistance of counsel by his trial counsel, John S. Denholm, Jr., for (a) failure to investigate, (b) failure to raise disputed issues, (c) failure to recognize defective information and allowing waiver of indictment, and (d) alliance with the government and failure to object to breach of plea agreement and abuse of prosecutorial discretion. Scott filed a motion to amend his § 2255 motion on December 17, 2001, to add various arguments related to the failure to allege drug quantity in the information. On April 22 and 23, 2002, Scott filed various documents apparently seeking to challenge the jurisdiction of this court, which he styled as a motion for judicial notice, an ex parte petition / affidavit, and a motion for summary judgment. On July 3, 2002, Scott filed a second motion to amend his § 2255 motion, this time alleging that: (1) his Fourth Amendment rights were violated by an illegal stop, arrest, and search on August 4, 1999; (2) evidence seized from his automobile and apartment on that night should have been excluded as fruits of the officers' illegal conduct; and (3) his trial counsel was ineffective for failing to raise these arguments. Finally, on December 23, 2002 Scott filed papers styled as a motion to modify sentence imposed, which raised two new arguments challenging his sentence under the Sentencing Guidelines.
This sentence was within the guidelines range following a four-level departure for the benefit of Scott under § 5K1.1.
ANALYSIS I.
The purported challenges to the court's jurisdiction raised in Scott's April 22 and 23, 2002 filings, the Fourth Amendment issues raised in his July 3, 2002 motion to amend, and the Sentencing Guidelines issues raised in his December 23, 2002 filing all must be dismissed as untimely. A motion to vacate, set aside, or correct a federal sentence must be filed within one year from "the date on which the judgment of conviction becomes final." 28 U.S.C. § 2255. This one year statute of limitations begins to run on the date when the time for filing a petition of certiorari expires, which is 90 days after the entry of judgment by the Court of Appeals. See Clav v. United States, 537 U.S. 522, 525 (2003). On January 3, 2001, the Fourth Circuit filed an order dismissing Scott's appeal pursuant to Fed.R.App.P. 42(b). Any new claims filed by Scott after April 3, 2002 thus were untimely.
Scott argues that the new claims relate back to his original petition, because they arose out of the same "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed.R.Civ.P. 15(c). New claims will not relate back to the original claims if they "arise from separate occurrences of `both time and type.'"United States v. Pittman, 209 F.3d 314, 318 (4th Cir. 2000) (quoting United States v. Claycraft, 167 F.3d 451, 457 (8th Cir. 1999)); see also Mandacina v. United States, 328 F.3d 995, 1000 (8th Cir. 2003) (stating that new claims must arise out of the same set of facts); United States v. Hicks, 283 F.3d 380, 388 (D.C. Cir. 2002) (stating that amendments cannot raise a new legal theory based on different facts); United States v. Espinoza-Saenz, 235 F.3d 501, 504-05 (10th Cir. 2000) (stating that amendments cannot present a new claim or theory). In the context of a § 2255 petition, "[t]he fact that amended claims arise from the same trial and sentencing proceeding as the original motion does not mean that the amended claims relate back." Pittman, 209 F.3d at 318.
Scott seeks to raise arguments that present entirely new legal theories regarding the jurisdiction of the court, the Fourth Amendment, and the application of the Sentencing Guidelines to his case. These arguments concern conduct or findings that were not disputed in his original petition, and thus are not of the same "time and type" as the original claims. Courts have found that proposed amendments to § 2255 petitions did not relate back under similar circumstances. See, e.g., Pittman, 209 F.3d at 317-18 (affirming that amendment did not relate back where it added an ineffective assistance of counsel claim and challenged a sentencing enhancement, even though the original petition had challenged a different enhancement);Mandacina, 328 F.3d at 1001-02 (affirming that amendment to add ineffective assistance of counsel claim based on different grounds did not relate back to ineffective assistance claim in original petition, even though both concerned pretrial conduct by the same attorney).
In any event, all of Scott's additional claims are without merit. Scott cannot bring a direct Fourth Amendment challenge to conduct occurring prior to his guilty plea. See Tollett v. Henderson, 411 U.S. 258, 267 (1973). Scott's claim that his trial counsel rendered ineffective assistance by failing to raise the cited Fourth Amendment arguments prior to his guilty plea is without merit. The officers who attempted to execute a traffic stop on Scott on the night of August 4, 1999 had a reasonable suspicion that Scott was engaged in illegal drug activity, based on a tip from a known informant that was generally corroborated by their own observations at the scene. See,e.g., United States v. Singh, 363 F.3d 347, 355-56 (4th Cir. 2004). When Scott responded by attempting to flee the scene and assaulting several police officers, the officers then had probable cause to arrest Scott, and to search his van incident to that arrest.See, e.g., United States v. Thornton, 325 F.3d 189, 193, 196 (4th Cir. 2003). The officers then obtained a warrant from the District Court for Baltimore County, Maryland to search Scott's apartment. A tip from the confidential informant that Scott stored drugs in his apartment and the officers' discovery of a quantity of cocaine in Scott's van established probable cause for the warrant. See,e.g., United States v. Hodge, 354 F.3d 305, 309-11 (4th Cir. 2004). Because the officers' conduct did not violate Scott's Fourth Amendment rights, his trial counsel was not ineffective for declining to raise these arguments prior to Scott's guilty plea.
Scott's challenges to the court's application of the Sentencing Guidelines, raised in his December 23, 2002 filing, involve non-constitutional claims that generally are not cognizable in a motion under § 2255. See United States v. Mikalaiunas, 186 F.3d 490, 495-96 (4th Cir. 1999) (internal citations and quotations omitted). His claims also are without merit, because U.S.S.G. §§ 5G1.3 and 5K2.0 do not provide any grounds for reducing his sentence. Finally, Scott's apparent challenges to the court's jurisdiction are frivolous and without merit.
II.
A defendant who has pled guilty generally cannot collaterally attack his conviction, as long as the plea was "voluntary and intelligent" and the defendant was "advised by competent counsel." Bousley v. United States. 523 U.S. 614, 621 (1998) (quoting Mabrv v. Johnson, 467 U.S. 504, 508 (1984)). Scott first argues that his plea was involuntary and unintelligent because of errors related to the government's failure to specify drug quantity in the information to which he pled guilty. As a second basis for collaterally attacking his guilty plea, Scott states that he was not advised by competent counsel because his trial counsel was constitutionally ineffective. Scott procedurally defaulted on the first claim by failing to raise it on direct appeal, and has failed to state a claim for ineffective assistance by his trial counsel.
A.
In his initial petition and in his timely first motion to amend, Scott argues that the government's failure to charge a specific drug quantity violated his constitutional rights, as outlined in Apprendi v. New Jersey, 530 U.S. 466 (2000), and that his plea therefore was invalid. To attack the voluntariness or intelligence of a guilty plea in a § 2255 motion, the defendant first must raise the issue on direct review. See id Scott did not appeal any issues on direct review, and thus is procedurally barred from attacking the validity of his guilty plea in a § 2255 petition unless he can demonstrate "cause and actual prejudice resulting from the errors of which he complains" or "that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack."Mikalajunas, 186 F.3d at 492-93 (citing United States v. Frady, 456 U.S. 152, 167-68 (1982)).
In Apprendi, 530 U.S. at 490, the Supreme Court held that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, is an element that must be submitted to a jury and proved beyond a reasonable doubt. This also requires the element to be charged in a federal defendant's indictment (or information, where indictment is waived). See Jones v. United States. 526 U.S. 227, 232 (1999).
"[I]n order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence." Mikalajunas, 186 F.3d at 493. Scott has not attempted to make such a showing.
A defendant may establish cause for a procedural default by establishing ineffective assistance of counsel. See id. at 493. Scott attempts to invoke this ground, arguing that his appellate counsel was ineffective for advising him to withdraw his direct appeal and waive all appeal rights. A defendant alleging ineffective assistance of counsel typically bears a substantial burden. The defendant must show both incompetence-that counsel's performance fell below "an objective standard of reasonableness" — and prejudice — "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). To establish incompetence under the first prong of the Strickland test, a defendant must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
In his signed waiver of appellate rights, Scott states that he had discussed the possible issues to be raised on appeal and the strength of his arguments with his attorney, and had voluntarily decided to discontinue his appeal. (Pet'r.'s Mot. at Ex. 5.) The record contains letters from G. Arthur Robbins to Scott indicating that they communicated about possible claims, including those related toApprendi, and about the decision to withdraw Scott's appeal. (Id.) At best, this evidence suggests that Scott's counsel failed to pursue a possible ground for appeal based on "a mere miscalculation of the likelihood of success," which is insufficient to establish ineffective assistance of counsel. Mikalajunas, 186 F.3d at 493.
Specifically, Scott states "I understand that by voluntarily giving up my right to appeal, I will be prevented from later changing my mind and trying to get back my appellate rights." (Pet'r's Mot. at Ex. 5.)
Indeed, the decision not to pursue an appeal was sound and reasonable, because Scott's arguments that his guilty plea was involuntary and unintelligent are without merit, as discussed below.
Even if Scott could establish that his appellate counsel's failure to raise the validity of Scott's guilty plea on direct appeal was objectively unreasonable, Scott cannot establish a resulting prejudice, because he cannot demonstrate a reasonable probability that, but for his counsel's errors, his appeal would have succeeded. Cf. Smith v. Robbins, 528 U.S. 259, 285-86 (2000) (stating that the proper standard for evaluating prejudice where appellate counsel failed to file a merits brief is whether there is a reasonable probability that, but for this error, the defendant would have prevailed in his appeal). The Apprendi arguments-which form the basis for the claim that Scott's guilty plea was involuntary and unintelligent-have been rejected by other courts. Distribution or possession with intent to distribute an unspecified quantity of cocaine powder, as charged in Scott's information, subjects the defendant to a statutory maximum penalty of 20 years, or 240 months. See 21 U.S.C. § 841(b)(1)(C). Scott's actual sentence of 168 months is within the prescribed statutory maximum for the offense charged in his information, and thus does not violateApprendi. See United States v. Promise. 255 F.3d 150, 156, 160 (4th Cir. 2001) (en banc); see also United States v. Cannady, 283 F.3d 641, 649 (4th Cir. 2002); United States v. General, 278 F.3d 389, 393 (4th Cir. 2002). The constitutional requirements announced in Apprendi simply do not apply to factual determinations made pursuant to the Sentencing Guidelines that increase a defendant's sentence, as long as the sentence imposed does not exceed the statutory maximum. See United States v. Kinter, 235 F.3d 192, 201-02 (4th Cir. 2000); see also United States v. Obi 239 F.3d 662, 667 (4th Cir. 2001). Finally, the fact that a subsequent legal development reduced the maximum sentence below the level that Scott was advised of at the time of his plea does not render his plea involuntary or unintelligent. See United States v. Sanchez, 269 F.3d 1250, 1282-86 (11th Cir. 2001); cf Brady v. United States. 397 U.S. 742, 756-57 (1970).
B.
Scott's second basis for collaterally attacking his guilty plea-that he was not "advised by competent counsel" at the trial stage-also is without merit. To challenge a guilty plea based on a claim of ineffective assistance of counsel, a defendant must establish that (1) his trial counsel's performance fell below an objective standard of reasonableness, and (2) there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial.See United States v. Bowman, 348 F.3d 408, 416 (4th Cir. 2003). Scott would need to demonstrate that he would have insisted on going to trial in state court, since this was the only option available to Scott in this case. Scott apparently faced a mandatory sentence of 25 years in state court if convicted, and was not eligible for any reductions based on his willingness to cooperate. (Gov't's Resp., 12/3/01, at Ex. 3, Webster Aff., at ¶ 5.)
The first hurdle that Scott faces are the representations he made under oath at his Rule 11 plea colloquy. Such representations ordinarily are binding on the defendant unless he can present clear and convincing evidence to the contrary. See Walton v. Angelone, 321 F.3d 442, 462 (4th Cir. 2003). At the plea hearing, the court reviewed the specific terms of the plea agreement with Scott, including the drug quantity attributable to him, and the applicable base offense level, enhancements, and downward adjustments and departures under the Sentencing Guidelines, and he confirmed his agreement to those terms. (Tr. of Plea, 1/6/00, at 11-19.) Indeed, the court noted several corrections to the plea agreement, based on issues raised by Scott and his counsel during the plea colloquy. (Id. at 13-14, 21-23, 24-25.) Scott testified that he was satisfied with the performance of his trial counsel, and affirmed that it was his final decision to plead guilty to the federal charge rather than going to trial on the state charges. (Id. at 20, 26.) Many of Scott's current objections to his counsel's performance are undermined by this record.
For example, Scott faults his counsel for not challenging his status as a Career Offender under the Sentencing Guidelines, but the record shows that Scott and his counsel raised this issue at the plea colloquy, and it was ultimately resolved in Scott's favor at sentencing.
Scott states that his counsel should have objected to the drug quantity attributed to him, the two-level sentencing enhancement for possession of a dangerous weapon, and the government's promise to state authorities that his sentence would be at least 14-15 years. Scott cannot establish that it was objectively unreasonable for his counsel not to raise these arguments, however, because they are without merit. Scott's challenge to the drug quantity is based on the fact that he was incarcerated from April 15, 1998 to February 18, 1999, which accounts for ten of the 19 months in the charged conspiracy. Drug quantities arising from conduct by Scott's co-conspirators during this period, however, were reasonably foreseeable and could be attributed to Scott as relevant conduct, because he was a major player in the conspiracy. See, e.g.,United States v. Holland. 59 F. Supp.2d 492, 530-31 (D. Md. 1998). The enhancement for possession of a dangerous weapon was based on undisputed evidence that the police found four handguns in Scott's van and apartment. The record shows that Scott's sentence was not based directly on any promise made to state authorities, as he claims, but rather was based on application of the Sentencing Guidelines, in light of stipulations made in his plea agreement.
Scott also appears to argue that attributing the handguns to him rather than one of his co-conspirators was discriminatory and constituted selective prosecution, because it was based on the fact that Scott was a convicted felon. These arguments are frivolous.
Under his plea agreement, Scott promised to concur "with whatever sentence is recommended" by the government. (Gov't's Resp., 12/3/01, at Ex. 2, at ¶ 6(a).) At sentencing the government recommended a sentence at the upper end of the applicable Guidelines range, stating that the government had promised state authorities that they would secure a sentence of 14 to 15 years. This recommendation by the government was consistent with the Sentencing Guidelines and with Scott's plea agreement.
Scott also alleges a number of errors by his trial counsel stemming from his Apprendi arguments. These claims fail, because theApprendi decision was issued after Scott's guilty plea and sentencing. "[A]n attorney's failure to anticipate a new rule of law [is] not constitutionally deficient." United States v. McNamara, 74 F.3d 514, 516 (4th Cir. 1996): see also Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002) (holding that trial counsel was not ineffective for failing to make Apprendi-type arguments prior to the Supreme Court's decision, even though such arguments were "reasonably available" at the time). Even if Scott's trial counsel had anticipated the Apprendi decision, it still would have been objectively reasonable not to raise these arguments under the circumstances in this case, because Scott's anticipated sentence was well below the applicable statutory maximum. The rejection of Scott's specific challenges to his information and sentencing was presaged by the earlier decision inJones v. United States. 526 U.S. 227 (1999), and has been confirmed in subsequent decisions referenced above. Under these circumstances, the court cannot say that it was objectively unreasonable for Scott's counsel not to raise these arguments.
Even assuming that it was objectively unreasonable for Scott's trial counsel not to raise the Apprendi arguments, Scott has not carried his burden of demonstrating a reasonable probability that, but for these errors, he would have insisted on going to trial in state court. In Scott's filings, he appears to argue that if he had known he faced a maximum sentence of only 20 years rather than life imprisonment, then he would have entered a plea of not guilty and insisted on going to trial in federal court. (Pet'r's Mot., 9/27/01, at 9-10, 13, 26; Pet'r's Reply, 1/7/02, at 11; Pet'r's Reply, 4/1/02, at 3.) This argument ignores the particular circumstances of this case, in which Scott's options were either to plead guilty in federal court or to face charges in state court. (Gov't's Resp., 12/3/01, at Ex. 3, Webster Aff., at ¶ 4-5, 7.) To demonstrate prejudice under the Bowman standard in the unique facts of this case, Scott must show that if he had known that he faced a lower maximum sentence in federal court, then he would have opted for prosecution in state court. Scott makes no representations to this effect and there is no reason to believe that Scott would have taken his chances in state court, where he faced five counts of first-degree assault and three drug-related counts, and apparently would have received a mandatory sentence of 25 years imprisonment if convicted.
In evaluating whether Scott has demonstrated a "reasonable probability" that he would have insisted on going to trial in state court, this court bears in mind that the applicable federal Guidelines range would be the same after Apprendi.
Finally, Scott claims that his trial counsel failed to advise him that there was a possibility he could get out of state prison after serving only 2-3 years on a mandatory 25-year sentence. The only evidence cited in support of this claim is a comment made by trial counsel at Scott's sentencing hearing. Counsel indicated that in some cases involving mandatory sentences in Maryland state court, after the defendant has served 14 to 16 months the court will transfer jurisdiction to the Department of Hygiene, allowing the defendant to be released after serving another eight to ten months in rehabilitation. (Tr. of Sentencing, 5/12/00, at 4-5.) Scott indicates that if he had known about this fact, he might have opted for prosecution in state court rather than pleading guilty to the federal charge. (Pet'r's Mot., 9/27/01, at 39-40.) There is no evidence in the record, however, to suggest that Scott would have been eligible for this form of early release or that such an outcome was likely.
Assuming that Scott could prove the facts underlying this claim, he still has not demonstrated a reasonable probability that, but for his counsel's error, he would have opted to be prosecuted in state court. Under the terms of Scott's plea agreement, he was facing a sentence of between 135 to 168 months, or approximately 11 to 14 years, in federal court. In state court Scott was facing a mandatory sentence of 25 years, with some possibility that he could be released early. The fact that a defendant's plea agreement "was favorable to him and accepting it was a reasonable and prudent decision" can provide further evidence that the defendant's guilty plea was voluntary and intelligent. Fields v. Attorney General of State of Md., 956 F.2d 1290, 1299 (4th Cir. 1992).
Ultimately, Scott has failed to present "clear and convincing evidence" to contradict the representations that he made under oath at his plea colloquy that he was satisfied with his trial counsel and was voluntarily agreeing to forego prosecution in state court.
III.
Scott's motions dated April 22 and 23, July 3, and December 23, 2002 will be dismissed as untimely. Scott's initial motion to amend his § 2255 motion, filed on December 17, 2001, will be granted. For the reasons stated, Scott's motion to vacate, set aside, or correct his sentence will be denied.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:1. the petitioner's motion to amend prior motion to vacate, set aside, or correct sentence (docket no. 22) is GRANTED;
2. the petitioner's motion to vacate, set aside, or correct sentence (docket no. 19) is DENIED;
3. the petitioner's motion for judicial notice (docket no. 31), motion for summary judgment (docket no. 32), motion to amend prior motion to vacate, set aside, or correct sentence (docket no. 33), and motion to amend judgment order (docket no. 40) are DENIED;
4. copies of this Order and the accompanying Memorandum shall be sent to the petitioner and counsel of record; and
5. the clerk of the court shall CLOSE this case.