Opinion
No. 4:04-CV-001 CAS.
March 29, 2007
MEMORANDUM AND ORDER
This matter is before the Court on federal prisoner Darrell Williams' Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, two amendments thereto, and various motions. The government has filed its response to the original motion to vacate and the two amendments, and this matter is fully briefed. For the following reasons, movant's motion will be denied in all respects.
Background .
On October 12, 1999, acting on a tip, St. Louis airport police officers and Drug Enforcement Authority agents stopped Williams and four other individuals after they arrived on a flight from Houston, Texas. The officers and federal Drug Enforcement Agency (DEA) agents found cocaine on the three women and cash on the two men.
On November 4, 1999, Williams was indicted on one count of conspiracy to distribute in excess of 500 grams of cocaine, in violation of 21 U.S.C. § 841(a)(1). Williams pleaded guilty but then escaped from custody. After he was captured, Williams withdrew his guilty plea and subsequently was charged in a superseding indictment with conspiracy to distribute in excess of 500 grams of cocaine, and knowingly escaping from a facility in which he was lawfully committed, in violation of 18 U.S.C. § 751(a). On December 1, 2000, a jury found Williams guilty on both counts. On March 2, 2001, Williams was sentenced as a career offender under 21 U.S.C. § 841 and United States Sentencing Guidelines Section 4B1.1 to 310 months imprisonment for conspiracy to distribute cocaine and 60 months imprisonment for escape from custody. His direct appeal was affirmed on July 3, 2002. See United States v. Williams, 295 F.3d 817 (8th Cir. 2002). Movant's petition for writ of certiorari with the United States Supreme Court was denied on January 27, 2003. See Doc. 254. The instant motion under § 2255 was filed on December 31, 2003. Movant filed two motions to amend his § 2255 motion on April 8, 2004 [Docs. 7, 8], which the Court granted on September 10, 2004 [Doc. 13]. Movant subsequent filed several more motions for leave to amend his § 2255 motion, which will be discussed below.
In the original § 2255 motion, Williams asserts sixteen claims of ineffective assistance of trial and appellate counsel [Doc. 1]. The motion asserts that Williams received ineffective assistance of counsel in that:
(a) trial counsel failed to object to the indictment, which charged movant with intent to distribute more than 500 grams of cocaine, and appellate counsel failed to raise the issue on appeal;
(b) trial counsel failed to object to the government's failure to file an information under 21 U.S.C. § 851, and appellate counsel failed to raise the issue on appeal;
(c) trial counsel failed to object to the Presentence Report with respect to the amount of cocaine controlled and the number of persons supervised, and appellate counsel failed to raise the issue on appeal;
(d) trial counsel failed to object to or file a motion to suppress certain evidence which was illegally seized, including money, a bottle of Dormin, a cellular telephone, a pager, and an earpiece for a cellular telephone, and appellate counsel failed to raise the issue on appeal;
(e) trial counsel failed to object to or file a motion to suppress evidence consisting of two letters movant wrote to his ex-girlfriend, and appellate counsel failed to raise the issue on appeal;
(f) trial counsel failed to file a motion to sever the charges, and appellate counsel failed to raise the issue on appeal;
(g) trial counsel failed to object to questions eliciting answers from movant regarding a prior arrest on drug charges in Farmington, Missouri, and appellate counsel failed to raise the issue on appeal;
(h) trial counsel failed to object to testimony of movant's prior attorney, Mr. Goldstein, which violated movant's Sixth Amendment rights and was subject to the attorney-client privilege, and appellate counsel failed to raise the issue on appeal;
(i) trial counsel failed to request the trial court to allow additional voir dire of a juror who had overheard the government's attorneys discussing prejudicial elements of movant's case, and appellate counsel failed to raise the issue on appeal;
(j) trial counsel failed to object to the government's violation of Federal Rule of Evidence 404(b), as the government's questioning regarding movant's arrest for distributing drugs at Farmington Correctional Center should have been included in the government's notice of intent to use Rule 404(b) evidence, and appellate counsel failed to raise the issue on appeal.;
(k) trial counsel failed to object to testimony from witnesses Jeff Stone and William Goldstein regarding an unrelated murder in which movant was allegedly involved, and appellate counsel failed to raise the issue on appeal;
(l) trial counsel failed to object to the government's misconduct in forcing witness Chastity Dorsey to testify by use of threats and then misrepresenting her willingness to testify, and appellate counsel failed to raise the issue on appeal;
(m) trial counsel failed to object to or move to suppress the initial detention report, which movant alleges was false, and appellate counsel failed to raise the issue on appeal;
(n) trial counsel Brad Kessler was ineffective because he stated on the record that he would "agree to anything," and was absent for three days during trial, leaving only an inexperienced co-counsel to represent movant;
(o) trial counsel failed to object to the government's questioning of expert witness Dennis Wichern, because Wichern falsely testified that Dormin capsules were used to cut cocaine, and movant asserts that Dormin is used for morning sickness and to cut heroin; and
(p) trial counsel failed to object to issues concerning the government's deal with witness Derrick Howard, under which Howard would receive a substantially lesser sentence in exchange for his testimony against movant, and appellate counsel failed to raise the issue on appeal.
In separate amendments to the § 2255 motion, Williams asserts that his right to a speedy trial was violated [Doc. 7], and that his sentence as imposed under 21 U.S.C. § 841(b)(1)(B) is unconstitutional [Doc. 8]. For the following reasons, the Court finds that Williams is not entitled to relief on any of his claims.
Legal Standard .
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was imposed in violation of the Constitution or law of the United States, the court lacked jurisdiction to impose such a sentence, the sentence exceeded the maximum authorized by law, or the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To warrant relief under § 2255, the errors of which the movant complains must amount to a fundamental miscarriage of justice. Davis v. United States, 417 U.S. 333 (1974). The Supreme Court has stated that "a collateral challenge may not do service for an appeal." United States v. Frady, 456 U.S. 152, 165 (1982).
"To establish ineffective assistance of counsel within the context of section 2255, . . . a movant faces a heavy burden."United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To prevail on an ineffective assistance of counsel claim, a movant must show both that counsel's performance was deficient and that he was prejudiced by the deficient performance. See McReynolds v. Kemna, 208 F.3d 721, 722 (8th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Under the deficient performance inquiry of Strickland, a court considers whether counsel's performance was reasonable "under prevailing professional norms" and "considering all the circumstances." Burkhalter v. United States, 203 F.3d 1096, 1098 (8th Cir. 2000) (quoting Strickland, 466 U.S. at 688). It is presumed that counsel acted reasonably, and much deference is granted to counsel's performance. Id.; see Parkus v. Bowersox, 157 F.3d 1136, 1139 (8th Cir. 1998).
Prejudice is shown if there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In other words, a movant "must show a reasonable probability that absent the alleged errors of counsel he would have been found not guilty." United States v. Robinson, 301 F.3d 923, 925 (8th Cir. 2002) (citing Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir.), cert. denied, 519 U.S. 956 (1996)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. "Because the failure to establish prejudice can be dispositive of a case," this Court "need not address the reasonableness of the attorney's behavior if the movant cannot prove prejudice." Apfel, 97 F.3d at 1076 (citations omitted). Further, statements which are self-serving and unsupported by evidence do not establish a basis for relief under section 2255. Id. at 1077.
On a claim of ineffective assistance of counsel for failure to raise an issue on appeal, the question is not whether counsel's decision to omit an issue "was an intelligent or effective decision, `but rather whether his decision was an unreasonable one which only an incompetent attorney would adopt.'" Garrett, 78 F.3d at 1305 (quoting Stokes v. Armontrout, 851 F.2d 1085, 1092 (8th Cir. 1988), cert. denied, 488 U.S. 1019 (1989)). "Counsel is not required to raise every potential issue on appeal. Indeed, the Supreme Court has recognized the `importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues.' Jones v. Barnes, 463 U.S. 745, 751-52 (1983). `Absent contrary evidence,' we thus assume that appellate counsel's failure to assert an issue was an exercise of `sound appellate strategy.'" Anderson v. United States, 393 F.3d 749, 754 (8th Cir. 2005) (quotingSidebottom v. Delo, 46 F.3d 744, 759 (8th Cir.), cert.. denied, 516 U.S. 849 (1995)).
With these standards in mind, the Court will address each assertion of ineffective assistance of counsel as contained in the original § 2255 motion.
Discussion .
I.
(a) Trial counsel failed to object to the indictment, which charged movant with intent to distribute more than 500 grams of cocaine, and appellate counsel failed to raise the issue on appeal.Movant's first point concerns the drug quantity charged in the indictment. Movant asserts that he was responsible for only 247 grams of cocaine, and not an amount in excess of 500 grams as charged, and that his trial and appellate counsel were ineffective for failing to object to the indictment and to raise the issue on appeal. In order to prevail on this claim, movant must show there is a reasonable probability that if an objection had been made, it would have been sustained, and the result of the proceeding would have been different. See Garrett, 78 F.3d at 1301.
Movant fails to show that counsel was deficient for failing to object to the indictment, because movant does not provide any evidence, apart from his unsubstantiated, self-serving assertion, that he was in possession of 247 grams of cocaine instead of an amount in excess of 500 grams. At trial, movant asserted through counsel that he was not in control of any cocaine, Trial Tr. I at 26, and the evidence presented by other witnesses indicated that movant and the other defendants were in control of one kilogram of cocaine. Tr. I at 66,105,145,199.
Counsel's theory of the case was that movant was not part of an never intended to be part of the drug deal, and was simply in the wrong place with the wrong people at the wrong time. Tr. I at 22-28. This was a sound trial strategy, particularly given the lack of other options available, and the Court is required to apply deference to counsel's judgment concerning strategic choices. See Strickland, 466 U.S. at 690-91. Movant's statements as to drug quantity, which are self-serving and unsupported by evidence, do not establish a basis for relief under § 2255. See Apfel, 97 F.3d at 1077.
Movant also does not show a reasonable probability that, but for counsel's error, the result of the proceeding would have been different. See Strickland, 466 U.S. at 694. There was substantial evidence at trial from multiple witnesses that movant and his accomplices were in control of one kilogram of cocaine. Movant offers nothing but the unverified, self-serving assertion that he was in possession of less than 500 grams of cocaine. Movant therefore cannot establish that if counsel had moved to object to the indictment, the Court would have dismissed the indictment or the result otherwise would have ben different. See id.
Movant's claim against his appellate counsel also fails. Movant cannot establish that his appellate counsel's performance was deficient. First, as discussed above, movant does not present any evidence to support his assertion that he was in control of less than 500 grams of cocaine but more than the zero grams he argued at trial. Appellate counsel's performance cannot be deemed deficient for failing to raise a claim on appeal that was not based on evidence presented at the trial or otherwise. Second, the jury determined at trial that movant was part of a conspiracy to possess with the intent to distribute more than 500 grams of cocaine, see Verdict (Doc. 168 in United States v. Darrell Williams, Case No. 4:99-CR-486 CAS), and the Court of Appeals described the evidence of movant's guilt as "overwhelming." See Williams, 295 F.3d at 820.
Movant's appellate counsel was therefore within the bounds of reasonable professional conduct when she chose to challenge how the evidence was admitted, rather than directly challenging the evidence or facts from the trial. Movant has not shown this decision was an unreasonable one which only an incompetent attorney would adopt, or that he suffered any prejudice as a result. See Garrett, 78 F.3d at 1305. Accordingly, movant is not entitled to relief on this claim.
(b) Trial counsel failed to object to the government's failure to file an information under 21 U.S.C. § 851, and appellate counsel failed to raise the issue on appeal;
Movant's second claim states that his sentence was enhanced pursuant to United States Sentencing Guidelines Section 4B1.1(B) as a career offender, based on prior convictions. Movant asserts that the government failed to file an information pursuant to 21 U.S.C. § 851 stating that it intended to enhance his sentence using prior convictions, that the enhancement is illegal as a result, and that his trial and appellate counsel were ineffective for failing to raise this issue.
The government responds that according to the Presentence Report, movant's sentence was enhanced under United States Sentencing Guideline 4B1.1, and as a result the government was not required to file an information under § 851(a)(1). The government does not cite any authority in support of its position.
Title 21 U.S.C. § 851(a)(1) provides,
No person . . . shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.21 U.S.C. § 851(a)(1). "Congress enacted § 851(a)(1) and the procedure for filing an information to protect defendants from receiving increased statutory sentences . . . resulting from prior, incorrectly charged offenses . . . and to give defendants the opportunity to show that they were not the persons convicted." United States v. Wallace, 895 F.2d 487, 489 (8th Cir. 1990).
In United States v. Mooring, 287 F.3d 725, 727-28 (8th Cir. 2002), the Eighth Circuit held that § 851(a)(1)'s procedural requirements are not jurisdictional, and that rules of waiver and forfeiture apply to the statute's requirements. "Thus, the only question that legitimately arises from the prosecution's [failure to comply with § 851(a)(1)] concerns the court's authority to impose an enhanced sentence. This is simply not a question of subject-matter jurisdiction." Id. at 728 (cited case omitted).
In Wallace, 895 F.2d at 489, the Eighth Circuit rejected an argument similar to movant's. "Congress enacted section 851(a)(1) and the procedure for filing an information to protect defendants from receiving increased statutory sentences set forth in part D of the Act resulting from prior incorrectly charged offenses . . . and to give defendants the opportunity to show that they were not the persons convicted." Id. (citations omitted). The Court noted that the Guidelines became effective after section 851(a)(1) was passed and do not contain a provision similar to section 851 requiring the Government to file an information before relying on a defendant's prior convictions to enhance his sentence. Id. at 490. The government need only follow the notice requirements of section 851 when it intends to enhance a defendant's statutory minimum or maximum penalty. Id. The government does not have to follow the notice requirements of section 851 when a defendant receives an enhanced sentence as a career offender under the Guidelines, if the enhanced sentence is still with the permissible statutory range. Id.
Movant does not claim that his previous convictions were incorrectly charged, or that he was not he person previously convicted. The enhanced sentence movant received was within the permissible statutory range. As a result, the notice procedures of section 851(a)(1) do not apply. See Wallace, 895 F.2d at 490;see also United States v. Auman, 920 F.2d 495, 497 (8th Cir. 1990) (requirements of section 851 do not apply to sentences imposed under section 4B1.1). Accordingly, neither the performance of movant's trial counsel nor his appellate counsel can be considered deficient for failing to raise this issue at trial or on appeal. If there is no merit to a claim, failure to raise it on appeal does not result in ineffective assistance underStrickland. Garrett, 78 F.3d at 1305. Further, movant cannot establish any prejudice from his counsel's conduct, because his sentence was properly enhanced pursuant to the Guidelines. This claim is therefore without merit.
(c) Trial counsel failed to object to the Presentence Report with respect to the amount of cocaine controlled and the number of persons controlled, and appellate counsel failed to raise the issue on appeal.
Movant's third claim alleges ineffective assistance of counsel in that trial and appellate counsel should have objected at trial and included in the direct appeal issues concerning the base offense level (which was premised on movant participating in a conspiracy involving in excess of 500 grams of cocaine), and a three-level increase for acting as a supervisor in criminal activity involving five or more participants. Movant states that the Presentence Report was erroneous because he was responsible for only 247 grams of cocaine and for supervising only one person.
Movant fails to establish the ineffective assistance of counsel with respect to this claim. As a preliminary matter, movant offers no evidence, as opposed to his unsupported assertions, to contradict the correctness of the drug quantity or the supervision findings, both of which were supported by the evidence at trial.
As previously stated, the drug quantity was found by the jury.
Further, the Addendum to the Presentence Report indicates that defendant's trial counsel did object to the three-level increase for supervision. (See Doc. 188, Addendum at 1) (filed under seal). The Addendum states, "This objection, if sustained by the Court, would ultimately have no impact on the guidelines calculations, as the defendant is a career offender." Id. The Court did not sustain the objection.
Under these circumstances, movant cannot show that the presumption of reasonableness that attaches to the performance of trial and appellate counsel should not apply. See Strickland, 466 U.S. at 688. In addition, movant offers no evidence that an objection or appeal on this issue would have had a reasonable probability of success. Id. Accordingly, there is no evidence of prejudice and this claim fails.
(d) Trial counsel failed to object to or file a motion to suppress certain evidence, including money, a bottle of Dormin, a cellular telephone, a pager, and an earpiece for a cellular telephone, which was illegally seized, and appellate counsel failed to raise the issue on appeal.
Movant's fourth point is that trial counsel was ineffective for failing to object to or file a motion to suppress certain illegally seized evidence, and that appellate counsel was ineffective for failing to raise the issue as plain error on direct appeal. Movant contends that if the issue had been raised on direct appeal, the Eighth Circuit would have remanded for a new trial.
The government responds that because movant initially pleaded guilty he waived any objection to the seizure of the evidence, citing United States v. Johnson, 634 F.2d 385 (8th Cir. 1980) (a "plea of guilty waives all nonjurisdictional defects, including allegedly illegal searches and seizures." The government does not cite any authority to establish that this rule applies when a defendant is allowed to withdraw a guilty plea. The Court therefore rejects this unsupported argument and turns to the government's second argument, that movant has not shown trial counsel's decision not to object to this evidence was constitutionally deficient.
The Court finds that trial counsel used sound trial strategy in refraining from arguing that the seizure violated movant's Fourth Amendment rights. Instead, counsel argued that although movant possessed these items, some had legitimate purposes, the Dormin was used to cut heroin that movant was using, and none of the items were involved in the buying and selling or drugs or the interstate movement of drugs. Counsel also repeatedly attempted to use the telephone and its corresponding log of calls to show that movant was not affiliated with co-defendant Derrick Howard's drug deal. Under the circumstances of the trial and movant's defense theory, movant has not overcome the strong presumption in favor of counsel's competence.
In addition, movant has not offered any evidence to establish that such an objection to the evidence would have been successful, or that a successful objection would have affected the outcome of the trial. The search was conducted incident to a valid arrest, and therefore a motion to suppress would have failed. "A full search of an arrestee and the area within an arrestee's immediate control for both weapons and evidence may be made during a search incident to arrest. See United States v. Hrasky, 453 F.3d 1099, 1100-01 (8th Cir. 2006)." United States v. Jones, ___ F.3d ___, No. 06-2600, 2007 WL 846636, *2 (8th Cir. Mar. 22, 2007). Movant was therefore not prejudiced by trial counsel's strategic decision not to object to admission of this evidence.
Movant has presented no evidence to establish that appellate counsel's decision not to raise this claim on appeal was unreasonable. See Anderson, 393 F.3d at 749. If there is no merit to a claim, failure to raise it on appeal does not result in ineffective assistance under Strickland. Garrett, 78 F.3d at 1305. Movant is therefore not entitled to relief on this claim.
(e) Trial counsel failed to object to or file a motion to suppress evidence consisting of letters mosvant wrote to his ex-girlfriend, and appellate counsel failed to raise the issue on appeal.
Movant's fifth claim is that his trial counsel was ineffective for failing to object or move to evidence of two letters movant wrote to his ex-girlfriend, Michelle Thomas (Gov't Tr. Exs. 33A, 33B), which were used as evidence against movant on the escape charge. Movant also asserts that appellate counsel was ineffective for failing to raise this issue on appeal as plain error. In the letters, movant asked Ms. Thomas to bring some hacksaw blades to the Jennings Jail and tape them under the visitors' table, and when he escaped they would run away together and have a wonderful life. Tr. II at 151-54.
The Presentence Report states that Ms. Thomas is movant's ex-wife. See Presentence Report at 11, ¶ 81.
Movant fails to establish the ineffective assistance of counsel with respect to this claim. The trial transcript reflects that movant's counsel objected to the reading of the letters on the basis that there was no foundation they were written by movant. Tr. II at 151. The prosecutor responded that witness Derrick Howard had identified movant's handwriting in testimony the day before, and that the letters were a written admission against interest. Id. at 151-52. Movant's counsel then withdrew his objection. Id. at 152.
After the two letters were introduced into evidence and outside the presence of the jury, movant testified under examination from his counsel that he wanted to take the stand to testify on his own behalf, he understood the risks associated with testifying including that his prior convictions would be in evidence, and that his testimony would be "opening the door to all sorts of things." Tr. II at 168. Movant's attorney asked him whether he understood that the prosecutor "may very well bring up additional letters that you have both written and received from Derrick Howard," and movant responded, "Correct." Id. at 169. Counsel's strategy and the strategy employed by movant during his testimony was that although he admitted his guilt in the two letters, he was lying in the letters in order to protect himself from physical harm while in prison because other prisoners knew he was a "snitch." Tr. II at 209-10.
Trial counsel used reasonable judgment in determining that an objection or motion to suppress was counter-strategic and meritless, and that decision falls within the wide range of reasonable professional assistance required by the Constitution. In addition, movant fails to allege the basis on which the letters could have been excluded, or to establish that an objection or motion to suppress would have been successful. Movant does not allege or establish that if the letters had been excluded from evidence the outcome of the trial proceeding would have been different. Movant therefore fails to establish prejudice.
Movant has presented no evidence to establish that appellate counsel's decision not to raise this claim on appeal was an unreasonable one that only an incompetent attorney would adopt.See Garrett, 78 F.3d at 1305. Therefore, the Court assumes that appellate counsel's failure to assert an issue was an exercise of "sound appellate strategy." Anderson, 393 F.3d at 754. Nor does movant allege or establish that if this issue had been raised on appeal, the outcome of the appeal would have been different. As a result, movant is not entitled to relief on this claim.
(f) Trial counsel failed to file a motion to sever the charges, and appellate counsel failed to raise the issue on appeal.
Movant's sixth claim point is that trial counsel failed to move to sever the escape charge from the drug charge "to insure Movant a fair trial," Motion to Vacate at 5, and that appellate counsel was ineffective for failing to raise the issue on appeal as plain error.
Movant did raise this claim on direct appeal as plain error, and therefore is precluded from asserting it again in his § 2255 motion. See Dall v. United States, 957 F.2d 571, 572 (8th Cir. 1992). The Court of Appeals found the argument to be without merit, and concluded that the joinder did not prejudice movant's defense to either the escape charge or the drug conspiracy charge. See Williams, 295 F.3d at 819. This claim should therefore be dismissed.
(g) Trial counsel failed to object to questions eliciting answers from movant regarding a prior arrest on drug charges in Farmington, Missouri, and appellate counsel failed to raise the issue on appeal.
Movant's seventh claim is that his trial counsel was ineffective for failing "to preserve an issue for review of [the] trial court making Movant testify against himself after Movant pleaded the 5th Amendment against testifying against himself about [a] Farmington arrest for drugs." Mot. to Vacate at 5, ¶ G. Movant also asserts that appellate counsel was ineffective for failing to brief this point on appeal as plain error.
Movant's contention that he asserted his Fifth Amendment privilege against testifying is belied by the record, which indicates that movant did not assert his Fifth Amendment privilege. As discussed above, the record reflects that movant wanted to testify and was clearly informed of the risks inherent in that decision, including that his prior convictions would be in evidence, and he understood that his testimony would be "opening the door to all sorts of things." Tr. II at 168. Movant's counsel objected to the prosecutor's questions concerning movant's arrest on drug distribution charges at the Farmington Correctional Center, Tr. III at 4-5, 13-25, but the Court overruled those objections on the grounds that the Farmington arrest was admissible under Rule 404(b), Fed.R.Evid., and was also relevant to show a common scheme or plan.
"A defendant who chooses to testify waives his privilege against compulsory self-incrimination with respect to the testimony he gives." Henderson v. Norris, 224 F.3d 748, 751 (8th Cir. 2000) (quoting Harrison v. United States, 392 U.S. 219, 222 (1968)). Movant had no constitutional right to take the stand in his own behalf and then selectively refuse to answer questions. Movant therefore cannot establish that his trial counsel was ineffective for failing to "preserve the issue for review," as the issue is without merit.
Movant has presented no evidence to establish that appellate counsel's decision not to raise this claim on appeal was unreasonable. See Anderson, 393 F.3d at 749. If there is no merit to a claim, failure to raise it on appeal does not result in ineffective assistance under Strickland. Garrett, 78 F.3d at 1305. Movant is therefore not entitled to relief on this claim.
(h) Trial counsel failed to object to testimony of movant's prior attorney, Mr. Goldstein, which was used against movant in violation of the Sixth Amendment and was subject to the attorney-client privilege, and appellate counsel failed to raise the issue on appeal.
Movant's eighth claim is that trial counsel was ineffective for failing to object to the government's introduction of testimony of movant's prior criminal defense attorney, Mr. William Goldstein, and that Mr. Goldstein's testimony violated movant's Sixth Amendment rights and disclosed attorney-client privileged communications.
The record shows that Mr. Goldstein's testimony concerned proffer conversations which took place at the St. Louis County Jail in the presence of movant, Mr. Goldstein, an Assistant United States Attorney, an investigator, and a St. Louis City police officer, at the St. Louis County Jail. Tr. III at 53-57. Attorney-client conversations which take place in the presence of a third party are not privileged, as any privilege is deemed waived by the presence of the third party. See United States v. Hatcher, 323 F.3d 666, 674 (8th Cir. 2003). Therefore, testimony about the proffer conversations did not disclosed privileged communications. Despite movant's assertion that privileged communications were revealed at trial, the record shows that Mr. Goldstein's testimony did not reveal the content of any confidential conversations that took place between him and movant, and did not mention any conversations that took place privately between him and movant. Tr. III at 57-62.
The Court concludes that Mr. Goldstein's testimony did not violate movant's Sixth Amendment rights or reveal attorney-client privileged information. As a result, the Court concludes that movant has not shown that he was prejudiced by trial counsel's strategic decision not to object to the admission of Mr. Goldstein's testimony. Any motion to suppress would have been without merit and denied, and therefore trial counsel cannot be deemed ineffective for failing to make the objection. Further, movant cannot establish that he was prejudiced by trial counsel's failure to make a meritless objection.
Movant has presented no evidence to establish that appellate counsel's decision not to raise this claim on appeal was unreasonable. See Anderson, 393 F.3d at 749. If there is no merit to a claim, failure to raise it on appeal does not result in ineffective assistance under Strickland. Garrett, 78 F.3d at 1305. Movant is therefore not entitled to relief on this claim.
(i) Trial counsel failed to request additional voir dire of a juror who had overheard the government's attorneys discussing prejudicial elements of movant's case, and appellate counsel failed to raise the issue on appeal.
Movant's ninth claim of ineffective assistance is that trial counsel failed to object and to "further voir-dire" a juror after the juror overheard the prosecutors discussing unspecified "prejudicial elements" of movant's case during the lunch break, and became biased against him as a result. Movant also asserts that appellate counsel was ineffective for failing to raise the issue on appeal.
The record indicates that the government's attorneys informed the Court that they realized Juror No. 1 had been seated near them in a crowded restaurant during the lunch break for approximately five minutes, during which time the attorneys were "making comments" discussing "some aspects" of the case in not very loud voices. The juror did not acknowledge the attorneys at the restaurant. Tr. III at 84-85. Movant's attorney responded that the jurors seemed "very conscientious," as some had avoided a restaurant where movant's attorneys had gone the day before, and stated that if the juror had overheard something, he was confident she would have brought it to the Court's attention. Id. at 85.
Under the deficient performance inquiry of Strickland, a court considers whether counsel's performance was reasonable "under prevailing professional norms" and "considering all the circumstances." Burkhalter, 203 F.3d at 1098 (quoting Strickland, 466 U.S. at 688). It is presumed that counsel acted reasonably, and much deference is granted to counsel's performance. Id. Under the circumstances present in this case, the Court finds that counsel's performance was not deficient. There is no evidence the juror heard the government's attorneys talking, or was even aware they were in the same restaurant as she. There is no evidence concerning what was discussed. Movant's counsel believed the juror would have disclosed the matter to the Court if she had heard anything, based on his experience with the members of the same jury. The Court finds this belief was reasonable and is entitled to deference.
Movant also cannot show prejudice. To show prejudice, movant must show a reasonable probability that absent the alleged errors of counsel he would have been found not guilty. Robinson, 301 F.3d at 925. Movant cannot establish that the juror heard anything, and only speculates that she heard something prejudicial. Movant does not assert how the juror's alleged overhearing of comments affected the outcome of his trial. This is particularly true because the evidence against movant was "overwhelming." See Williams, 295 F.3d at 820.
Movant's appellate counsel was within the bounds of reasonable professional conduct when she chose not to raise this issue on appeal. Movant has not shown this decision was an unreasonable one which only an incompetent attorney would adopt, or that he suffered any prejudice as a result. See Garrett, 78 F.3d at 1305. Accordingly, Movant is not entitled to relief on this claim.
(j) Trial counsel failed to object to the government's violation of Federal Rule of Evidence 404(b), as the government's questioning regarding movant's arrest for distributing drugs at Farmington Correctional Center should have been included in the government's notice of intent to use Rule 404(b) evidence, and appellate counsel failed to raise the issue on appeal.
Movant's tenth claim is that trial counsel failed to object to the government's violation of Federal Rule of Evidence 404(b), as the government's questions regarding movant's arrest for distributing drugs at Farmington Correctional Center should have been included in the government's notice of intent to use Rule 404(b) evidence, and appellate counsel failed to raise the issue on appeal.
Movant raised this claim as plain error on direct appeal, and therefore is precluded from asserting it again in his § 2255 motion. See Dall, 957 F.2d at 572. Further, the Court of Appeals found movant's argument concerning admission of Rule 404(b) evidence to be without merit. See Williams, 295 F.3d at 820. This claim should therefore be dismissed.
(k) Trial counsel failed to object to testimony from witnesses Jeff Stone and Will Goldstein regarding an unrelated murder in which movant was allegedly involved, and appellate counsel failed to raise the issue on appeal.
Movant's eleventh claim is that trial counsel was ineffective for failing to object to testimony from the government's rebuttal witnesses Jeff Stone and William Goldstein regarding an unrelated murder in which movant was allegedly involved, and appellate counsel failed to raise the issue on appeal. Movant's claim does not specifically allege, but appears to imply, that he believes this testimony was prejudicial and tended to implicate him in an unrelated murder.
Movant's claim misconstrues the testimony of Stone and Goldstein, who were called to testify to rebut statements movant made during his own testimony concerning the nature of his conversations with the government during the proffer discussions. As the Court of Appeals stated, although "statements made during plea negotiations are generally inadmissible in a criminal proceeding against a defendant, a defendant may waive, as Williams did, the protection offered" by the Federal Rules of Evidence and the Federal Rules of Criminal Procedure. Williams, 295 F.3d at 819-20. Stone and Goldstein did not testify that movant committed a murder, but rather testified about movant's ability to provide information to the government and the truthfulness of movant's proffer concerning the murder.
Movant's trial counsel exercised sound trial strategy by attempting to use the testimony of these witnesses to show that movant was able to provide the government with useful information but then was treated unfairly in return. Movant's trial counsel used his discretion and judgment in an attempt to show movant's willingness to work with the government to receive leniency on his pending charges and his subsequent betrayal by the government. Trial counsel's performance was not deficient in this respect.
Movant also fails to establish prejudice as a result of trial counsel's performance. Because the withdrawn plea agreement and statements made during plea negotiations were admissible in this case, Williams, 295 F.3d at 819, any objection to the testimony of Stone and Goldstein would have failed. Movant therefore cannot establish that if the objection had been made, the result of the trial would have been different, particularly given the strength of the case against him. See id. at 820.
Movant's appellate counsel was within the bounds of reasonable professional conduct when she chose not to raise this issue on appeal. Movant has not shown this decision was an unreasonable one which only an incompetent attorney would adopt, or that he suffered any prejudice as a result. See Garrett, 78 F.3d at 1305. Accordingly, movant is not entitled to relief on this claim.
(l) Trial counsel failed to object to the government's misconduct in forcing witness Chastity Dorsey to testify by use of threats and then misrepresenting her willingness to testify, and appellate counsel failed to raise the issue on appeal.
Movant's twelfth claim is that his trial counsel was ineffective for failing to object to the government's prosecutorial misconduct in lying to the jury about the willingness of government witness Chastity Dorsey to testify, as Dorsey was subpoenaed and forced to testify upon the threat of a prison sentence and loss of her child if she did not testify. Movant also claims that his appellate counsel was ineffective for failing to raise this argument on appeal.
Movant does not establish how his counsel were ineffective with respect to this claim. Movant does not allege that his attorneys knew about the alleged conduct and statements by the government, nor he does not allege that it occurred in his attorneys' presence. Movant does not allege that he told his attorneys about the government's mistreatment or misrepresentation of Ms. Dorsey and that they ignored him. Movant does not allege that Ms. Dorsey testified falsely. Finally, movant presents no evidence that this alleged misconduct occurred, beyond his own unsupported assertions. The Court finds that movant has failed to meet his heavy burden to establish that his attorneys did not act reasonably. In the absence of any evidence to support this claim, the Court will grant deference to counsel's performance. Movant also does not allege or establish how he was prejudiced.
The Court finds that movant has also not established that only an incompetent attorney would have failed to raise this claim on appeal. Nor has movant shown that he was prejudiced in any way by appellate counsel's failure to raise this claim on appeal.See Garrett, 78 F.3d at 1305. Movant is therefore not entitled to relief on this claim.
(m) Trial counsel failed to object to or move to suppress the initial detention report, which was false, and appellate counsel failed to raise the issue on appeal.
Movant's thirteenth claim is that his trial counsel was ineffective for failing to move to suppress or to object to the initial detention report, because it was false. Movant offers no evidence to establish that the initial detention report was false, but rather merely makes an unsupported assertion.
Movant's arrest at the airport was based on a tip from a ticket agent who reported that four same-day, one-way tickets were purchased with cash, which drew her attention to the travelers. Coupled with other information the DEA had received from an informant, the Magistrate Judge determined that probable cause existed to issue a detention order.
It was reasonable trial strategy for movant's counsel not to object or move to suppress the detention order. The defense strategy was that the informant was movant's girlfriend, who was acting at movant's behest when she made the tip. Counsel's reasonable trial strategy was to portray movant as an unwitting and unwilling participant in Derrick Howard's drug conspiracy, and as a person who was trying to stay out of trouble. Accordingly, movant testified that he directed his girlfriend to call and tip the airport police about Howard's arrival with drugs. Tr. II at 185-94. If counsel had objected to the detention report or tried to have it suppressed, it would have only undermined this trial strategy. Counsel's performance therefore was not deficient and is entitled to deference. In addition, movant does not present any evidence to establish that if trial counsel had objected to the detention order, the objection would have had a reasonable probability of successfully excluding the order. As a result, movant is unable to show prejudice.
Movant has not established that only an incompetent attorney would have failed to raise this claim on appeal. Nor has movant shown that he was prejudiced in any way by appellate counsel's failure to raise this claim on appeal. See Garrett, 78 F.3d at 1305. Movant is therefore not entitled to relief on this claim.
Movant's motion for production of the pre-hearing transcript dated October 15, 1999 in United States v. Darrell Williams, Case No. 4:99-CR-486 CAS [Doc. 26], will be denied.
(n) Trial counsel Brad Kessler was ineffective because he stated on the record that he would "agree to anything," and was absent for three days during trial, leaving only an inexperienced co-counsel to represent movant.
Movant's fourteenth claim is that trial counsel Brad Kessler was ineffective because (1) he stated on the record that he would "agree to anything" the government requested or submitted, and (2) he did not appear during the last three days of movant's trial, and left the defense in the hands of inexperienced co-counsel, Mr. Diemer.
With respect to movant's first point, Mr. Kessler's comment was made during an off-the-record discussion about what evidence the jury would be permitted to see after the case was submitted. The Court stated that the jury could see exhibits if they requested them, but the Court would not automatically send the exhibits to the jury without a request. The Court also made it clear that the jury would not be permitted to have drug, contraband or weapons evidence in the jury room, but inquired if the government wanted the jury to be able to view the drugs. The government's attorney jokingly responded, "They [the defense attorneys] ain't going to agree to that, I know that." Mr. Kessler responded in a similar vein, "We'll agree to anything." Tr. II at 162-63. The Court then immediately finished its discussion with counsel about the voluminous evidence the jury might request, and movant took the stand. Id. at 163-64.
Movant's claim takes Mr. Kessler's comment out of the context in which it was made. The comment was meant to be humorous and pleasant, and by no means represented an actual capitulation by Mr. Kessler to any present or future request or submission by the government. The record bears out that Mr. Kessler continued to zealously represent movant, including by vigorous cross-examination of the government's witnesses and appropriate objections. This minor comment was fully within the exercise of reasonable professional judgment and the range of reasonable professional behavior expected of counsel at trial, and movant has not established that it prejudiced him in any way.
With respect to movant's second point, movant asserts that Mr. Kessler abandoned him for the last three days of trial and left him with an inexperienced attorney. As a initial matter, the record reflects that this was a four-day trial, with only closing argument on the fourth day. Mr. Kessler was present on the first two days, but not the third or fourth. Both of movant's attorneys took part in witness examination and cross-examination on the first two days of the trial. Both attorneys were competent to represent defendant. Therefore, it falls within Mr. Kessler's reasonable professional judgment to leave the trial if the co-counsel is competent to continue on his own. The Court gives a strong presumption of deference to Mr. Kessler as to his co-counsel's ability and competence. Moreover, the Court's evaluation of Mr. Diemer's competence as shown through his examination of witnesses and conduct of closing argument was that he was fully competent to represent movant. As a result, there is no showing of prejudice because there is no evidence that Mr. Kessler's continued presence would have changed the outcome of the trial. This is particularly true given the "overwhelming" evidence of movant's guilt. See Williams, 295 F.3d at 820. Movant is therefore not entitled to relief on this claim.
(o) Trial counsel failed to object to the government's questioning of expert witness Dennis Wichern, who falsely testified that Dormin capsules are used to cut cocaine, as movant asserts that Dormin is actually used for morning sickness and to cut heroin, not cocaine.
Movant's fifteenth claim is that trial counsel was ineffective for failing to object to the testimony of government's expert witness Dennis Wichern, who falsely testified that the purpose of Dormin capsules in the narcotics trade is to cut cocaine. Movant asserts that Dormin is used for morning sickness and to cut heroin. Movant does not assert how this testimony prejudiced him.
Dormin is an over-the-counter medication manufactured by Randob Laboratories Ltd. which contains the active ingredient diphenhydramine. See AmericaRx.com Home Page, http://www.americarx.com/index.asp?PageAction=VIEWPRODProdID=40019. Listed indications for Dormin include "Relief of symptoms associated with perennial and seasonal allergic rhinitis, vasomotor rhinitis, allergic conjunctivitis, mild, uncomplicated urticaria and angioedema," "amelioration of allergic reactions to blood or plasma," "dermatographism," "adjunctive therapy in anaphylactic reactions," "mild nighttime sedation," "prevention of motion sickness," "antinauseant," "topical anesthetic," and "treatment of antipsychotic induced extrapyramidal symptoms." Id.
Movant fails to establish that counsel was ineffective for failing to object to this testimony for two reasons. First, the claim does not accurately reflect the record. Two government witnesses, Michael Williams, Tr. I at 46, and Wichern, Tr. II at 103, testified that Dormin is used in the narcotics trade to cut both heroin and cocaine. The government introduced the Dormin found on movant to show that movant had possession of materials commonly found or associated with drug dealers and users, not that movant used the Dormin to cut the cocaine which was seized in this case. Trial counsel's overall strategy was to challenge the government's contention that movant was involved in a cocaine deal. Movant testified that he used heroin on the trip to Texas, and testified he used Dormin to cut the heroin. Tr. II at 179-80. This testimony sought to explain why movant possessed Dormin, and also that his possession of it did not necessarily link him to the cocaine conspiracy. Counsel's strategy for countering the government's evidence concerning the Dormin was reasonable.
Second, movant does not offer any evidence outside of his unsupported assertion to contradict the government's expert testimony. Wichern was certified as an expert to testify as to the nature of Dormin and its use, but movant does not assert that either he or his counsel were similarly certified. Therefore, it falls within counsel's reasonable professional judgment not to challenge an expert directly when counsel did not have an opposing expert or any other more definite evidence than movant's testimony to establish that Dormin is never used to cut cocaine. Because movant did not have any evidentiary basis to contradict Wichern's testimony concerning Dormin's use for cutting cocaine as well as heroin, and because another witness also testified that Dormin is used to cut both cocaine and heroin, this objection could not have changed the outcome of the trial. Therefore, movant cannot show prejudice and is not entitled to relief on this claim.
(p) Trial counsel failed to object to issues concerning the government's deal with witness Derrick Howard, under which Howard would receive a substantially lesser sentence in exchange for his testimony against movant, and appellate counsel failed to raise the issue on appeal.
Movant's sixteenth and final claim in the original § 2255 motion is that trial counsel was ineffective for failing to failing to object to the government's offer of a deal to witness Derrick Howard, under which Howard would receive a lesser sentence in exchange for his testimony against movant, and that appellate counsel was ineffective for failing to raise the issue on appeal.
The record shows that movant's trial counsel thoroughly questioned Howard on cross-examination concerning the possibility that he would receive a substantially reduced sentence in return for cooperating with the government. Tr. I at 193-94, 206-08. Howard's cooperation was also discussed by the government on direct examination. Tr. I at 186-88. Both on direct and cross-examination, Howard testified that he was facing a sentence of 262 to 327 months, and as a result of his cooperation against movant could receive a sentence of less than five years (60 months), but that he had not yet been sentenced. Id. at 187, 208.
On cross-examination, movant's counsel exercised reasonable professional judgment in attempting to highlight to the jury Howard's possible reduction in sentence and how that might affect the truthfulness of his testimony and his motivation to testify. Tr. I at 206-08. Counsel asked Howard if the sentence he was facing before cooperating was "like a life sentence," and Howard conceded that it "pretty much" was. Id. Counsel returned to this issue several times, including by asking Howard if he had violated a pact with movant to either go to trial together or cooperate together, id. at 222-23, and quoting from a scathing letter Howard had written to movant, the last line of which read, "Now it's my turn to get the last laugh." Id. at 229. Mr. Diemer asked Howard, "Is this [meaning Howard's trial testimony against movant] the last laugh?" Id. Because Howard had not yet been sentenced, movant's counsel could only elicit Howard's testimony that his sentence was still pending at the time of trial and that he understood the sentence ultimately rested with the sentencing judge. Tr. I at 186-87, 207-08. Trial counsel reiterated in closing argument that Derrick Howard was subject to a mandatory minimum sentence and hoped to receive a reduced sentence in return for his cooperation with the government, and reminded the jury that it must decide whether Howard's testimony was influenced by his desire to lessen his sentence. Tr. IV at 30-32.
Movant does not indicate what else trial counsel could or should have done to draw the jury's attention to Howard's deal with the government. The Court finds that counsel's actions were well within the range of reasonable professional judgment. The Court also finds that movant has not shown how he was prejudiced by counsel's failure to take action beyond that described above.
Movant has not established that only an incompetent attorney would have failed to raise this claim on appeal. Nor has movant shown that he was prejudiced in any way by appellate counsel's failure to raise this claim on appeal. See Garrett, 78 F.3d at 1305. Movant is therefore not entitled to relief on this claim.
II.
In separate amendments to the § 2255 motion, Williams asserts that his right to a speedy trial was violated [Doc. 7], and that his sentence as imposed under 21 U.S.C. § 841(b)(1)(B) is unconstitutional [Doc. 8]. The government has responded to the merits of both amendments.
The Court must address the timeliness of these amendment before turning to their merits. Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a section 2255 motion must be filed within one year of "the date on which the judgment of conviction becomes final." See 28 U.S.C. § 2255. The one-year limit began to run in this case on January 27, 2003, the date on which movant's petition for a writ of certiorari was denied. See Campa-Fabela v. United States, 339 F.3d 993, 993-94 (8th Cir. 2003) (per curiam), cert. denied, 541 U.S. 967 (2004). Therefore, movant's amendments to his § 2255 motion filed April 8, 2004, more than one year later, are time barred unless they "relate back" under Rule 15(c) of the Federal Rules of Civil Procedure.
Rule 15(c)(2) provides that "[a]n amendment of a pleading relates back to the date of the original pleading when . . . the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." In Mayle v. Felix, 545 U.S. 644, 664 (2005), the Supreme Court interpreted Rule 15(c)(2) in the habeas context, and held that in order for the claims in an amended habeas motion under 28 U.S.C. § 2254 to relate back, they must be of the same "time and type" as those in the original motion, such that they arise from the same core set of operative facts. Id. at 657, 664. The Eighth Circuit subsequently appliedMayle's holding in the context of a federal prisoner's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255.See United States v. Hernandez, 436 F.3d 851, 857 (8th Cir. 2006).
A. Speedy Trial Act Claim.
In the instant case, movant's claim of a speedy trial violation is not tied to a "common core of operative facts" that would make relation back proper. Movant's claims in the original § 2255 motion all concern ineffective assistance of counsel, and none were based on Speedy Trial Act issues. Thus, the facts alleged in the original motion were not such that would put the government on notice that the Speedy Trial Act was an issue. See Mandacina v. United States, 328 F.3d 995, 1000 (8th Cir. 2003) (stating that "[t]he rationale of Rule 15(c) is that a party who has been notified of litigation concerning a particular occurrence has been given all the notice that statutes of limitations were intended to provide.") (quoting United States v. Craycraft, 167 F.3d 451, 457 (8th Cir. 1999)). Movant's Speedy Trial Act claim in his first amendment to the § 2255 motion [Doc. 7] is therefore time barred and the Court does not consider it.
B. Constitutional Challenge to Sentence.
Movant's claims in his second amendment to the § 2255 motion are that: (1) the statute under which he was sentenced, 21 U.S.C. § 841(b)(1)(B)(ii), is unconstitutional and he should have been sentenced under § 841(b)(1)(C), under which there was a shorter, twenty-year maximum penalty; and (2) because he was improperly sentenced under § 841(b)(1)(B)(ii), Sentencing Guidelines § 4B1.1(B) (offense level 34 — offense statutory maximum of 25 years or more) was incorrectly applied to him and instead § 4B1.1(C) should have been applied (offense level 32 — offense statutory maximum of 20 years or more but less than 25 years).
Movant's claim that § 841(b)(1)(B) is unconstitutional is not tied to a "common core of operative facts" that would make relation back to the claims in his original § 2255 motion proper. Movant's claims in the original § 2255 motion all concern ineffective assistance of counsel, and none were based on the unconstitutionality of this statute. The Court therefore finds this claim is time barred and does not consider it. Morever, the Eighth Circuit has rejected challenges to the constitutionality of this statutory section. See, e.g., United States v. Spears, 469 F.3d 1166, 1172 n. 4 (8th Cir. 2006) (collecting cases from the Eighth Circuit and other circuits rejecting constitutional challenges to 21 U.S.C. § 841(b)(1)(B)), petition for cert. filed, (U.S. Mar. 2, 2007) (No. 06-9864).
Movant's claim that his sentence was improperly enhanced pursuant to Guidelines § 4B1.1 because he was improperly sentenced under § 841(b)(1)(B) is derivative of the claim concerning the statute's illegality, and similarly does not relate back to the claims raised in the original § 2255 motion. Thus, all claims raised in movant's second amendment to the original § 2255 motion [Doc. 8] are time barred.
In addition to being time barred, movant's claims in his second amendment are procedurally barred. Movant's sentencing claims are not properly brought under § 2255, but should have been raised on direct appeal. See Auman v. United States, 67 F.3d 157, 160-61 (8th Cir. 1995) (citing United States v. Ward, 55 F.3d 412, 413 (8th Cir. 1995) ("Collateral proceedings under 28 U.S.C. § 2255 cannot be made to do service for an appeal.")). A petitioner who fails to raise an issue on direct appeal is barred from raising that issue for the first time in a section 2255 habeas corpus proceeding. Matthews v. United States, 114 F.3d 112, 113 (8th Cir. 1997), cert. denied, 522 U.S. 1064 (1998); see United States v. Morgan, 230 F.3d 1067, 1069 (8th Cir. 2000) (challenge that statute was unconstitutional as applied was procedurally defaulted where it was not raised on direct appeal and movant did not show either cause and actual prejudice or actual innocence),cert. denied, 534 U.S. 825 (2001).
Where a claim could have been raised on direct appeal, but was not, it is procedurally barred cannot be raised for the first time in a § 2255 motion unless the movant can show both (1) a "cause" that excuses the default, and (2) "actual prejudice" resulting from the errors of which he complains. See Frady, 456 U.S. at 168; Dejan v. United States, 208 F.3d 682, 685 (8th Cir. 2000); Matthews, 114 F.3d at 113. If the movant is unable to show cause and actual prejudice, he must make a "substantial claim that constitutional error has caused the conviction of an innocent person." Schlup v. Delo, 513 U.S. 298, 324 (1995).
Finally, "While section 2255 does provide relief for cases in which `the sentence was in excess of the maximum authorized by law,' this provision applies to violations of statutes establishing maximum sentences, rather than garden-variety Sentencing Guideline application issues." Auman, 67 F.3d at 161. Movant's sentence in this case was within the maximum authorized by law and therefore is not cognizable under § 2255.
Therefore, the instant claim is procedurally barred because it is not a jurisdictional claim, movant failed to raise it on direct appeal, and he has not attempted to show cause and prejudice or actual innocence sufficient to overcome the procedural bar. See Frady, 456 U.S. at 170. Consequently, the Court will also deny the claims raised in the second amendment to the original § 2255 motion [Doc. 8] based on procedural bar.
III.
In movant's reply in support of his motion to vacate [Doc. 34], he asserts that trial counsel was ineffective for failing to fully investigate his criminal history and the federal Sentencing Guidelines, which resulted in movant receiving an illegally-enhanced sentence under the career offender provisions of § 4B1.1. Movant also asserts that his appellate counsel was ineffective for failing to fully investigate the sentencing transcript, Presentence Report and federal Sentencing Guidelines and add a claim on appeal of an illegally-enhanced sentence. Specifically, movant asserts that although he had two prior convictions for crimes of violence (see Doc. 34 at 1), his prior sentences were imposed within ten years of the commencement of the instant offense in this case, and therefore should not have been counted under Sentencing Guidelines §§ 4A1.2(e)(4) and (d)(2). Consequently, movant asserts that he should not have been sentenced as a career offender and that his sentence was illegally enhanced. Movant also addresses this issue in a document titled "Movant's Traverse Pleading" filed August 21, 2006. [Doc. 37]Movant's reply was filed on July 12, 2006. Therefore, the claims raised in it are time barred unless they "relate back" to the original § 2255 motion under Rule 15(c), Fed.R.Civ.P. As discussed supra, to relate back the claims must be of the same "time and type" as those in the original motion, such that they arise from the same core set of operative facts. Mayle, 545 U.S. at 657, 664; Hernandez, 436 F.3d at 857.
Movant's claims in the original § 2255 motion all concern ineffective assistance of counsel, but none involve the illegal application of the Sentencing Guidelines to movant's sentence. The only claim in the original motion which relates to sentencing issues is (b), that "trial counsel failed to object to the government's failure to file an information under 21 U.S.C. § 851, and appellate counsel failed to raise the issue on appeal." The Court concludes that the facts alleged in the original claim were not such that they would put the government on notice that an ineffective assistance of trial and appellate counsel claim concerning failure to object to an illegal career offender enhancement was an issue. See Mandacina, 328 F.3d at 1000. Movant's claims in his reply in support of the original § 2255 motion [Doc. 34] are therefore time barred and the Court does not consider them.
Moreover, even if the ineffective assistance claims concerning career offender status were properly before the Court, they are without merit and movant could show no prejudice as a result of counsel's failure to object or to raise the issue on appeal. The 2000 Sentencing Guidelines were properly applied to calculate movant's sentence. See Presentence Report at 6, ¶ 23. Sentencing Guidelines § 4A1.2(d) applies to offenses committed prior to age eighteen. Section 4A1.2(d)(1) states, "If the defendant was convicted as an adult and received a sentence of imprisonment exceeding one year and one month, add 3 points under § 4A1.1(a) for each such sentence." This subsection applies to plaintiff's 1983 conviction for Assault Second Degree in the Circuit Court for the City of St. Louis, Missouri, when he was a minor but had been certified to stand trial as an adult. See Presentence Report at 9, ¶ 59, Case No. 821-1179.
Sentencing Guidelines § 4A1.2(e)(1) provides,
Any prior sentence of imprisonment exceeding one year and one month that was imposed within fifteen years of the defendant's commencement of the instant offense is counted. Also count any prior sentence of imprisonment exceeding one year and one month, whenever imposed , that resulted in the defendant being incarcerated during any part of such fifteen-year period .
§ 4A1.2(e)(1) (emphases added). This emphasized language is applicable to movant's sentence because his prior sentences of imprisonment exceeded one year and one month, and he was incarcerated on them during part of the fifteen-year period preceding the commencement of the instant offense.
Sentencing Guidelines § 4A1.2(e)(2) states, "Any other prior sentence," i.e., a sentence that did not exceed one year and one month, or which was committed prior to age eighteen and the defendant was not convicted as an adult, "that was imposed within ten years of the defendant's commencement of the instant offense is counted." Neither of those qualifying points of reference apply to movant's prior sentences because the sentences exceeded one year and one month, and movant was either an adult or certified as an adult. Therefore § 4A1.2(e)(2) is inapplicable.
Movant relies on § 4A1.2(e)(3), which states, "Any prior sentence not within the time periods specified above," i.e., within the time periods covered by §§ 4A1.2(e)(1) or (e)(2), "is not counted." The fatal flaw in movant's reliance on § 4A1.2(e)(3) is that his prior sentences are within the time period specified in § 4A1.2(e)(1), and therefore (e)(3) does not apply. Both sentences for movant's prior convictions for crimes of violence were for terms in excess of one year and one month, and each resulted in the movant being incarcerated during the fifteen-year period preceding movant's commencement of the instant offense. See § 4A1.2(e)(1). Movant was discharged from the Assault Second Degree conviction on March 31, 1989 (see Presentence Report at 9, ¶ 59), and from the Robbery First Degree conviction on March 30, 1999 (see id. at 11, ¶ 68). The instant offense occurred on or about October 12, 1999 (see id. at 2, ¶ 1; at 4, ¶ 9). Therefore, the prior convictions were properly counted toward the imposition of career offender status.
As a result of the foregoing, movant cannot establish that his trial or appellate counsel's failure to object or to appeal on this point resulted in any prejudice, because movant cannot show that his sentence would have been different. Movant would therefore not entitled to any relief on these claims, if they were not time barred.
IV.
A. Motion to Amend or Clarify.
On July 12, 2006, movant filed a "Motion to Amend and Clarify Movant [sic] Claim 4 in Movant's Second Motion Under Rule 28 USC 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Dated 04-05-04." This motion refers to movant's first amendment to his original § 2255 motion [Doc. 7] discussed supra at 28-29. This motion reiterates the facts and issues discussed in connection with movant's reply [Doc. 34] concerning the imposition of criminal history points and career offender status based on movant's prior convictions for crimes of violence.
The issues raised in this motion to amend are both time barred and without merit for the reasons discussed above in connection with movant's reply at 32-34. The motion to amend should therefore be denied.
B. Motion for Production of Documents.
On August 2, 2006, movant filed a Motion for Production of Documents relevant to his claims concerning the prior convictions for crimes of violence. [Doc. 36] Movant seeks all documents which were presented to the probation officer who prepared the Presentence Report, including Missouri Department of Corrections records, concerning movant's 1983 Assault Second Degree conviction and 1988 Attempted Escape from Custody conviction. The government did not file a response. Movant's motion focuses on whether his 1988 conviction for Attempted Escape in Case No. 889-2904 in the Circuit Court for the City of St. Louis was to run concurrently with two other sentences and consecutive to the third.
This motion will be denied, as all of the relevant facts concerning movant's prior convictions are in the record before the Court and movant's sentencing claims are time barred, procedurally barred, and without merit.
C. Motion Requesting Leave to Amend.
Movant filed a "Motion Requesting Leave to the Court to Amend 28 U.S.C. 2255 Pursant [sic] to Fedreal [sic] Rules of Civil Procedure Rule 15(a)" [Doc. 40]. In this motion, movant seeks to amend his original § 2255 motion to add a claim that because the jury did not attribute a specific drug quantity to him, his conviction and/or sentence under 21 U.S.C. § 841(b)(1)(B) must be vacated, citing United States v. Gonzalez, 420 F.3d 111 (2d Cir. 2005). The government did not file a response.
The motion to amend was filed on October 5, 2006. The claim raised therein is time barred unless it "relates back" under Rule 15(c), Fed.R.Civ.P. To relate back, the claim must be of the same "time and type" as those in the original motion, such that it arises from the same core set of operative facts. Mayle, 545 U.S. at 657, 664; Hernandez, 436 F.3d at 857.
As previously stated, movant's claims in the original § 2255 motion all concern ineffective assistance of counsel. None of the original claims raise the issue of an illegal sentence on the basis that the jury did not attribute a specific drug quantity to movant. The Court concludes that the claims and facts alleged in the original motion would not put the government on notice of the claim asserted in the instant motion to amend. See Mandacina, 328 F.3d at 1000. Movant's claim in the instant motion to amend is therefore time barred. The Court will deny leave to amend and does not consider the claim.
Moreover, unlike the factual situation in Gonzalez, 420 F.3d at 114-16, movant was found guilty after a jury trial in which the jury specifically found that the government established beyond a reasonable doubt that the amount of cocaine involved in the conspiracy in which movant was involved was 500 grams or more. Therefore, Gonzalez is inapposite and, as a decision from the Second Circuit Court of Appeals, is not binding on this Court.
D. Motion for Leave to Amend.
On November 6, 2006, movant filed a "Motion Requesting Leave to the Court to Amend 28 U.S.C. § 2255 Pursant [sic] to Federal Rules of Civil Rule [sic] 15(a)." [Doc. 43] In this motion, movant seeks to clarify and address the career offender claim raised in previous amendments and motions to amend, and asserts that his 1983 conviction for Assault Second Degree when he was a minor but had been certified to stand trial as an adult, see Presentence Report at 9, ¶ 59, should not be counted under Sentencing Guidelines because it does not fit the criteria under § 4A1.1(a), (b) or (c). The government did not file a response.
The claim raised in movant's proposed amendment has been discussed above, and has been rejected as time barred, procedurally barred, and without merit. Movant's motion for leave to amend should therefore be denied. Movant's simultaneously-filed "Motion Asking This Court To Order Government To Show Cause Why Relief Should Not be Granted In Regard To Petitioner's Rule 15(a)" [Doc. 42] should be denied as moot.
E. Motion for an Evidentiary Hearing.
In this motion, filed November 6, 2006 [Doc. 44], movant asks the Court to "grant him an evidentiary hearing at which he can verify and testify to the substance of his ineffective assistance of counsel claim, as well as defend against any off the record evidence presented by the government in response to his 2255 claim." Id. at 2. Movant also states that he "submits to this Honorable Court that the critical core of his 2255 claim involve[s] evidence de hors the record which, if proven or taken as correct, would entitle him to the requested relief sought."Id. (emphasis added). The government did not file a response.
"A defendant is entitled to a hearing on a § 2255 motion `unless the motion, files, and record conclusively show' that the defendant is not entitled to relief." United States v. Regenos, 405 F.3d 691, 694 (8th Cir. 2005) (quoting Koskela v. United States, 235 F.3d 1148, 1149 (8th Cir. 2001)). "A § 2255 motion `can be dismissed without a hearing if (1) the petitioner's allegations, accepted as true, would not entitle the petitioner to relief, or (2) the allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'"Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995))."
In this case, movant's allegations cannot be accepted as true because they are either contradicted by the record or are unsupported conclusions rather than statements of fact. The motion for an evidentiary hearing will therefore be denied.
F. Motion for Stay in Abeyance.
On November 20, 2006, movant filed a Motion for Stay in Abeyance [Doc. 46], which moves the Court to stay resolution of this proceeding under § 2255 "pending the resolution of his State court attack on the constitutionally infirm priors that formed the basis of his career offender enhancement under U.S.S.G. § 4B1.1."Id. at 2. Movant seeks a 180-day stay of this matter and asserts that "he has recently discovered new evidence that will demonstrate to the State Court that he is actually innocent of the Assault 2nd Degree prior that triggered the career offender enhancement." Id. The government did not file a response.
This motion will be denied. Movant does not assert or provide proof that he has filed any proceeding in state court to challenge his 1983 Assault Second Degree conviction. Movant also does not retract his previous admission in this case that he has two prior crime of violence convictions. See Doc. 34 at 1. The Court finds that movant has not established that this matter should be stayed. Finally, the Court notes that more than five months have passed since the motion for stay was filed, and therefore movant has had the benefit of that period of time in which to accomplish his stated intent with respect to the state case.
Certificate of Appealability .
Conclusion.
28 U.S.C. § 2255See28 U.S.C. § 2253Miller-El v. Cockrell537 U.S. 322336See Slack v. McDaniel529 U.S. 473484-85 28 U.S.C. § 2255
Accordingly,
IT IS HEREBY ORDERED that movant's Motion Under 28 U.S.C. § 2255, as amended, is DENIED. [Doc. 1, 7, 8, 34]
IT IS FURTHER ORDERED that movant's motion for leave to file a reply to the government's response to the original § 2255 motion is DENIED as moot, as a reply was filed. [Doc. 31]
IT IS FURTHER ORDERED that movant's "Motion for Production of Pre-Hearing Transcript Dated October 15, 1999 Under Cause No. 4:99-CR-486 CAS" is DENIED. [Doc. 26]
IT IS FURTHER ORDERED that movant's "Motion to Amend and Clarify Movant [sic] Claim 4 in Movant's Second Motion Under Rule 28 USC 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody Dated 04-05-04" is DENIED. [Doc. 32]
IT IS FURTHER ORDERED that movant's Motion for Production of Documents is DENIED. [Doc. 36]
IT IS FURTHER ORDERED that movant's "Motion Requesting Leave to the Court to Amend 28 U.S.C. 2255 Pursant [sic] to Fedreal [sic] Rules of Civil Procedure Rule 15(a)" is DENIED. [Doc. 40] IT IS FURTHER ORDERED that movant's "Motion Requesting Leave to the Court to Amend 28 U.S.C. § 2255 Pursant [sic] to Federal Rules of Civil Rule [sic] 15(a)" is DENIED. [Doc. 43]
IT IS FURTHER ORDERED that movant's "Motion Asking This Court To Order Government To Show Cause Why Relief Should Not be Granted In Regard To Petitioner's Rule 15(a)" is DENIED as moot. [Doc. 42]
IT IS FURTHER ORDERED that movant's Motion for an Evidentiary Hearing is DENIED. [Doc. 44]
IT IS FURTHER ORDERED that movant's Motion for Stay in Abeyance is DENIED. [Doc. 46]
IT IS FURTHER ORDERED that no certificate of appealability will issue.
An appropriate judgment will accompany this memorandum and order.