Opinion
No. C2-99-56-02
September 1, 2000
MEMORANDUM AND ORDER
Before the Court is a motion by the petitioner, John William Ault, pro se, pursuant to 28 U.S.C. § 2255, under which a prisoner may move the sentencing court for a correction in sentence (doc. #1 in case no. A2-00-94; doc. #49 in case no. C2-99-56-02). The United States resists the motion. For reasons set forth below, the motion is DENIED.
The Court notes that the petitioner is a party to a plea agreement in which he specifically and unequivocally waived his rights to contest the sentence in any post-conviction proceeding, including one pursuant to Section 2255 of Title 28, United States Code. See Plea Agreement, doc. #24 in case no. C2-99-56-02 ¶ 22. The petitioner also waived his right to appeal provided under Section 3742(a) of Title 18, United States Code. The plea agreement clearly stated that the petitioner understands that any appeal or other post-conviction relief inappropriately sought will be summarily dismissed by the court in which it is filed. Finally, the agreement recited that the petitioner understood the Eighth Circuit Court of Appeals has upheld this type of provision inUnited States v. His Law, 85 F.3d 379 (8th Cir. 1996). Petitioner seeks to avoid the effect of this provision by claiming that his counsel provided ineffective assistance in negotiating the plea agreement. He argues that waivers of the right to appeal and collateral attack are unenforceable where a claim of ineffective assistance of counsel is made. Moreover, he asserts that his "actual innocence" overcomes these waivers.
Petitioner is at least partially correct. The Eighth Circuit Court of Appeals has recently held that "[a] defendant's plea agreement waiver of the right to seek section 2255 post-conviction relief does not waive defendant's right to argue, pursuant to that section, that the decision to enter into the plea was not knowing and voluntary because it was the result of ineffective assistance of counsel." DeRoo v. United States, No. 99-1188 (8th Cir. August 31, 2000). Petitioner's pro se motion claims that his decision to enter into the plea agreement and waive his section 2255 rights was not knowing and voluntary as a result of ineffective assistance of counsel; thus, he is not barred from bringing this section 2255 motion on the basis of his waiver. See id.
Overcoming this procedural hurdle, however, is only the first step. Petitioner must still establish that his counsel was ineffective under the Supreme Court's holding in Strickland v. Washington. 466 U.S. 668 (1984). Strickland sets forth that one advancing an ineffective assistance of counsel claim must demonstrate (1) that counsel's representation fell below an objective standard of reasonableness and (2) that there is a reasonable probability that the outcome of the proceeding would have been different but for this failure. Id. at 686-87. Where, as here, the conviction was entered on the basis of a guilty plea, the petitioner must show that "there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." See Matthews v. United States, 114 F.3d 112, 113-14 (8th Cir. 1997) (quotingHill v. Lockhart, 474 U.S. 52, 59 (1985)). As discussed below, petitioner cannot meet this test.
On June 18, 1999, law enforcement officers executed a search warrant at petitioner's home. During the search, officers found approximately 380 grams of methamphetamine, 484 grams of marijuana, and 723 grams of cocaine in petitioner's bedroom. The officers also discovered almost $6,700.00 in United States currency and seven firearms. Petitioner and his wife were subsequently indicted, on numerous counts, for conspiracy to distribute controlled substances, possession with intent to distribute controlled substances, and possession of firearms in furtherance of a drug trafficking crime.
On October 20, 1999, pursuant to a plea agreement, petitioner pled guilty to conspiring to violate the drug laws of the United States (Count One), a violation of 21 U.S.C. § 846, and possessing firearms in furtherance of a drug trafficking crime (Count Seven), a violation of 18 U.S.C. § 924(c)(1) and 2. In exchange, the government agreed to dismiss four substantive counts of possession of controlled substances with intent to distribute, violations of 21 U.S.C. § 841(a). In his plea agreement, petitioner recognized that upon pleading guilty he was subject to a consecutive five year minimum mandatory penalty for the firearms charge. (doc. #24, Plea Agreement ¶ 7(b)). See also 18 U.S.C. § 924(c)(1) A)(i) and (D)(ii). Indeed, the petitioner's plea agreement secured that at the time of sentencing the United States would: (1) recommend a sentence at the bottom end of the guidelines or the minimum mandatory sentence, whichever is greater; (2) recommend a sentence of 5 years for Count Seven consecutive to the sentence on the conspiracy charge in Count One — no more than 120 months; and (3) move to dismiss the remaining four counts of the Indictment. (doc. #24, Plea Agreement ¶ 18). At sentencing on January 13, 2000, the government stood by its obligations in the plea agreement. The Court, following the government's recommendations, sentenced petitioner to a total term of 120 months of imprisonment: 60 months for the drug charge and 60 months consecutive for the firearms charge. The remaining counts were dismissed. Petitioner began serving his sentence on February 1, 2000, after being allowed to voluntarily surrender.
In this motion, petitioner complains that due to ineffective assistance of counsel he did not understand the nature of the 924(c) "possession in furtherance of a drug trafficking crime" charge against him or the elements of the charge, and that he is actually innocent of the firearms charge. It is perhaps easy to understand why petitioner argues that he is "actually innocent" of the firearms charge — petitioner was allowed to enter an Alford plea to the 924(c) charge at his change of plea hearing. See Change of Plea Hr'g Trans. pp. 62-66. Under North Carolina v. Alford, 400 U.S. 25 (1970), a court may accept a guilty plea from and impose a sentence on a defendant who maintains his innocence, provided that the court finds an adequate factual basis for the plea. An Alford plea allows a defendant, like the petitioner, to take advantage of some benefit in a plea bargain based on the defendant's recognition of the strength of the prosecutor's case.See United States v. Baker, 961 F.2d 1390, 1391 n. 2. (8th Cir. 1992).
In his opening motion petitioner erroneously asserted that he was convicted of "using or carrying" a firearm in relation to a drug trafficking crime. See 18 U.S.C. § 924(c)(1)(A). He argued that this conviction was in violation of the "active employment" requirement of Bailey v. United States, 516 U.S. 137 (1995). The government's thorough and well researched response brief quite clearly demonstrated the flaws in petitioner's arguments. Petitioner, in his reply brief, now recognizes that his 924(c) conviction was for "possession in furtherance of a drug trafficking crime." However, he still maintains that his counsel was ineffective, that he is "actually innocent," and that the facts do not support such a charge.
In this case, petitioner received the government's recommendation of a sentence at the low end of the range or not more than 120 months, which was the mandatory statutory minimum sentence. The petitioner also received the government's agreement to move to dismiss the remaining four counts of the indictment. Additionally, although not specifically provided for in his plea agreement, it was certainly recognized by petitioner at his and his wife's joint change of plea hearing, that his wife received more lenient treatment than was otherwise warranted in exchange for petitioner's plea of guilty on the firearms charge. In discussing these issues with petitioner the following exchange occurred.
THE COURT: Mr. Ault, do you understand that your wife is being treated more favorably than you in this plea agreement in the sense that she will not be charged with a violation of the gun charge?
JOHN AULT: Yes, I do.
THE COURT: Is that satisfactory with you and a part of your bargain?
JOHN AULT: Yes.
THE COURT: Mrs. Ault, it's my understanding that you're being charged with a more serious drug charge which adds a few months to the guidelines but that you were not being charged with the gun count. Is that your understanding of the Plea Agreement?
LINDA AULT: Yes, it is.
THE COURT: Is that fair as far as you're concerned and satisfactory to you?
LINDA AULT: Yes.
THE COURT: Have you and your husband talked about this difference in these two plea agreements?
LINDA AULT: Yes, we have.
THE COURT: Folks, do I take it that the two of you are telling me because of your marital relationship that you're willing to allow these charges to be treated a little differently against the two of you? Is it okay with you because you're married? Is that part of your reasons for entering into this agreement?
LINDA AULT: Yes.
THE COURT: John?
JOHN AULT: Yes.
Change of Plea Hr'g Trans. at pp. 27-28.
Like any other plea of guilty, an Alford plea waives numerous constitutional rights and, therefore, must be knowing, intelligent, and voluntary. See Ivy v. Caspari, 173 F.3d 1136, 1141 (8th Cir. 1999). "A plea of guilty must represent a voluntary and intelligent choice among the various options available to the defendant." Id. (citing North Carolina v. Alford, 400 U.S. 25, 31 (1970)). A plea may be rendered involuntary either because the defendant does not understand the nature of the constitutional protections that he is waiving or because he has such an incomplete understanding of the charge that his plea cannot stand as an intelligent choice among his options.See id. at 1141-42. Moreover, a plea is involuntary if the defendant did not receive "real notice of the true nature of the charge against him." Id. at 1142 (quoting Smith v. O'Grady, 312 U.S. 329, 334 (1941)); Dejan v. United States, 208 F.3d 682, 685 (8th Cir. 2000).
Petitioner argues that his plea was rendered involuntary because his counsel ineffectively advised him of the nature of the charges against him. Even assuming that petitioner's counsel did not advise him of the true nature of the 924(c) charge against petitioner, this fact alone does not render his plea of guilty involuntary. See Schone v. Purkett, 15 F.3d 785, 789 (8th Cir. 1994) (holding that under the totality of circumstances the defendant knowingly and voluntarily entered pleas of guilty). In determining whether petitioner understood the nature of the charges against him, this Court looks to the "totality of the circumstances." United States v. Marks, 38 F.3d 1009, 1011 (8th Cir. 1994). The Court examines whether the indictment gave petitioner notice of the charge, whether he discussed the charge with his attorney or the judge, and other relevant facts in the record. Id.
In this case the record demonstrates that petitioner received true notice of the charges against him. At his change of plea hearing the Court discussed the charges in depth with petitioner. Furthermore, at that time, petitioner agreed that he understood those charges. See Marks, 38 F.3d at 1011 (noting that defendant's statement at plea hearing that he understands the charges is persuasive evidence of an understanding of the nature of the charges). During the hearing the Court explained:
The United States will in count number 7 against Mr. Ault, the government would have to prove that your possession of the firearm or firearms was knowing. In other words, your possession was not accidental or mistaken. You knew that these weapons were in your possession. Likewise, they'd have to prove that your possession of these firearms was in furtherance of the drug traffic crime. In some way your possession of these guns had something to do with this drug stuff. And they'd have to actually proof [sic] that to the satisfaction of the jury. Let me tell you how difficult that is. United States Supreme Court is, as your attorney is undoubtedly aware, in the 1995 case I think it was U.S. v. Bailey, struck down a use of a firearm in a similar kind of case. And this law has since been changed, changed to include possession in furtherance of. Let me explain to you at least one case of a kind that I'm aware of where this is being upheld. It's be [sic] held that a person had illegal drugs in the trunk of their car and had a weapon on top of the drugs and had to move the weapon aside in order to get at the drugs. This was in furtherance, possession of a firearm in furtherance of. However, if the facts in the case indicate that your guns were separately maintained in an entirely separate place and had nothing to do with this drug transaction in any way, then there would be some concern in my mind if I were, whether this would fully be correct. You have to be satisfied that the government can actually prove that these guns were in some way possessed by you in furtherance of this drug transaction. Understand what I'm saying? It's a tough case to prove is what I'm telling you. I don't know what the facts are. We'll hear in just a minute. But you have to make a decision here and you'll be able to withhold that decision until such time we hear what Mr. Hagler has for proof. I'm just telling you this is not an easy case to prove, baby. Okay. Understand me, Mr. Ault?
JOHN AULT: Yes.
Change of Plea Hr'g Trans. at pp. 40-41.
Petitioner asserts that the fact that he disputed that the firearms were possessed in furtherance of the drug trafficking crime at the hearing supports that he did not understand the true nature of the charges against him. The Court disagrees. That petitioner felt his possession of the firearms was totally separate from the drug conspiracy demonstrates that petitioner understood that the two had to be connected for the possession to be criminal. Petitioner states that he "did not feel he committed the offense for which he was entering an alford plea." Pet. Reply Br. at 2. What petitioner misunderstands is that maintaining innocence is the very nature or essence of an Alford plea.
As explained previously, a defendant may plead guilty while still maintaining his innocence in order to take advantage of some benefit in a plea agreement as long as there is adequate evidence to support the plea. See Baker, 961 F.2d at 1391 n. 2. In sum, petitioner is basically arguing that he made a mistake and wishes he would not have plead guilty. Such feelings of regret do not turn an otherwise valid plea of guilty involuntary and unintelligent. The Court thoroughly explained to petitioner at his change of plea hearing the nature of the crimes petitioner faced, the consequences of entering an Alford plea, and the possible sentence he faced. In light of all the discussions that the Court had with him, petitioner maintained his intention to plead guilty and did so. In fact, the Court specifically told petitioner:
I don't like Alford pleas because I am afraid you're going to say to yourself sometime down in the confines of some federal prison I didn't do that and I shouldn't have admitted it and that damn judge should never allowed me to do it. Mr. Ault, you're the one that makes the decisions around here. I don't take pleas of guilty to charges of crime that people do not admit they actually did. You're telling me that you didn't have those guns in any connection with the drugs, then you should deny this charge, you should plead not guilty and we should have a trial. I do recognize, and your attorney's undoubtedly explained to you, that it is possible to present a plea of guilty even denying the truth of the charge if you believe the government has such strong evidence that they could convict you anyway and you would get a greater sentence or you would be sent to jail for a longer period of time or you would lose some advantage of this plea agreement by fighting the government. Now is that what you're telling me or not?
Change of Plea Hr'g Trans. at pp. 63-64. To wit, the petitioner answered, "Yes, it is." Id.
Taken together all of these factors clearly demonstrate, under the totality of the circumstances, that petitioner understood the nature of the charges against him. See Marks, 38 F.3d at 1011. Under these circumstances there is no indication that petitioner would not have pleaded guilty had his counsel, in addition to the Court, advised him of the true nature of the charges against him.See Matthews, 114 F.3d at 113-14 (explaining that in order to establish prejudice the defendant must demonstrate that but for the counsel's errors, he would not have pleaded guilty). Consequently, petitioner cannot demonstrate prejudice under theStrickland standard, and the Court need not consider whether counsel's performance was in fact deficient. See DeRoo, No. 99-1188 (8th Cir. Aug. 31, 2000).
Last, a valid Alford plea must be adequately supported by a factual basis. Alford, 400 U.S. at 36 n. 10. The record in this case supports that petitioner's Alford plea had a sufficient factual basis. As proffered at the change of plea hearing the facts establish that during an investigation by the Grand Forks Narcotics Task Force two controlled buys of controlled substances were made by a confidential informant from petitioner's wife, the co-defendant in his case. On June 18, 1999, at approximately 8:00 a.m. law enforcement officers arrived at the petitioner's home to execute a search warrant. The officers found the petitioner and his wife in the back bedroom of the residence; petitioner appeared to be just getting out of bed. When asked if any firearms were present the petitioner indicated that there were firearms in the closet and under the bed. Officers found a .12 gauge shotgun directly under the bed which had both the stock and barrel cut and the serial number was obliterated. The shotgun was breached but it had a shell in the chamber. Six more firearms were found in the bedroom closet across from petitioner's side of the bed. One of the firearms in the closet was a military issue rifle with a full magazine chambered. Also found in the closet within ten feet or so of the firearms was a duffel bag with a substantial amount of drugs in it. Scattered throughout the bedroom — on both nightstands, the dresser, and the dressing table — were more drugs. In total officers found 380 grams of methamphetamine, 723 grams of cocaine, 502 grams of marijuana and approximately 70 grams of mushrooms in the search. Virtually all of the drugs were found in the back bedroom where petitioner was located. Additionally, officers found roughly $4,000 dollars in cash, out of a total of approximately $6,700, in the same bedroom as the guns and drugs. Interestingly, officers also discovered a crude security device above the door inside this bedroom.
Recently the Fifth Circuit Court of Appeals examined the issue of what constitutes evidence sufficient to support a 924(c) conviction for possessing firearms in furtherance of a drug trafficking crime. See United States v. Ceballos-Torres, 218 F.3d 409 (5th Cir. 2000). In Ceballos-Torres, three federal agents went to Ceballos's home to conduct an immigration check. While there, the officers noticed a 9mm Glock handgun lying in plain view in the bedroom on top of the bed. Ceballos admitted that he owned the gun. Agents examined the gun and discovered that it was loaded. After examining Ceballos's immigration papers, the agents determined that he was an illegal alien and arrested him. The agents then secured a search warrant for the apartment. Upon executing the warrant, agents found 569.8 grams of cocaine and several empty kilo wrappers in a hidden compartment in the closet. They also found $1,360 in cash in the pocket of a jacket in the closet. The money later tested positive for cocaine. In the kitchen, the officers found an electronic gram scale and four modified straws for sniffing cocaine.
In considering whether this evidence was sufficient to support a conviction for possessing the handgun in furtherance of a drug trafficking crime, the court noted that "furtherance" means "the act of furthering, advancing, or helping forward." Id. at 412 (quoting Webster's II New College Dictionary 454 (1st ed. 1995)). Mere presence of a firearm at the scene is not enough. Id. at 414. "What is instead required is evidence more specific to the particular defendant, showing that his or her possession actually furthered the drug trafficking offense." Id. These factors are relevant in such an inquiry: the type of drug activity being conducted; the accessibility of the firearms, the type of weapon; whether the weapon is stolen or illegal; whether the gun is loaded; the proximity to drugs or drug profits; and the time and circumstances under which the gun is found. Id. at 414-15.
The court clarified that inquiry into these factors helps distinguish different types of firearm possession. As an example, the court explained that a drug dealer whose only firearms were unloaded antiques mounted on the wall does not possess those firearms "in furtherance of" drug trafficking. Id. at 415. In evaluating the relevant factors that it had identified, the court concluded that Ceballos had possessed the Glock handgun in furtherance of his drug trafficking offense. Id. Ceballos had admitted ownership of the handgun which was loaded and easily accessible in his apartment. The handgun was stolen and possessed illegally, and it was possessed in the apartment along with a substantial amount of drugs and money. Those factors reasonably supported a conclusion that Ceballos's gun protected his drugs and money against robbery. Id. Therefore, the possession was in furtherance of drug trafficking. Id.
Applying these factors to petitioner's case produces the same conclusion. Petitioner admitted that he owned the seven firearms found in his bedroom. One firearm was located directly underneath petitioner's side of the bed, and easily accessible to him. This particular firearm — a shotgun — although not illegal in length, had the stock and barrel cut, had an obliterated serial number and had a shell in the chamber. Even more significantly, officers found a military style rifle in the closet with a full magazine chambered. Two of the other weapons found were also loaded. Additionally, all of the firearms were in the same bedroom where virtually all of the drugs and a significant amount of money were found. Moreover, the drugs were not found in one discrete location within this bedroom with the guns located elsewhere — the drugs were scattered all over the bedroom. It is also important that the amount of drugs found in this bedroom was not insubstantial. The cocaine alone equaled roughly one and one-half pounds; additionally, the methamphetamine equaled roughly thirteen ounces and; the marijuana equaled approximately one pound. The crude security device above the inside of the bedroom door adds another interesting element to this scene. Taken together, these facts leave the Court with the distinct impression that this bedroom was the center of the drug activity in this home and that those firearms were there to protect those drugs and money. Under these circumstances, the evidence was sufficient to support a conviction for possession of firearms in furtherance of a drug trafficking crime. See id. Consequently, petitioner's Alford plea is valid.
For the reasons set forth above, the petitioner's motion and request for hearing are hereby DENIED.
IT IS SO ORDERED.