Opinion
No. A3-99-162. Docket No. 6.
February 1, 2000.
Summary : Petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. Court held that petition was not properly before the court. Nevertheless the court examined the substance of the petition and held that Petitioner's ineffective assistance of counsel claim was unwarranted since her criminal history category was correctly determined in her Presentence Investigation Report, and she was not entitled to credit for time she spent in state custody.
MEMORANDUM AND ORDER
I. Introduction
Before the court is Petitioner's Motion for Writ of Habeas Corpus Relief pursuant to Title 28, United States Code, section 2241 (doc. #1). This is the latest attempt by Petitioner to seek review of the sentence imposed on her by this court on March 11, 1998. This court has previously rejected Petitioner's 28 U.S.C. § 2255 Motion, (See case no. A3-98-63, doc. #3; case no. C3-98-18, doc. #25), and Petitioner's Rule 35 Motion, (See case no. C2-98-18, doc. #29).
In both instances, the court reminded Petitioner that she was a "party to a plea agreement in which she specifically and unequivocally waived all rights to contest the sentence in any post-conviction proceeding." See Memorandum and Order dated June 17, 1998, case no. A3-98-63. See also Memorandum and Order dated December 30, 1998, case no. C3-98-18. Undaunted by this voluntary waiver of rights, Petitioner proceeded with the instant motion claiming ineffective assistance of counsel during the sentencing and appeal phase of her criminal case. In this regard, she requests that the court vacate her sentence and resentence her, or restore her appeal rights.
Briefly stated, on March 11, 1998, Petitioner appeared before this court for a consolidated waiver of indictment, change of plea, and sentencing hearing. The parties had agreed in advance to the preparation of a Presentence Investigation Report (PSI) by the United States Probation Service. The information charged Petitioner with money laundering in violation of 18 United States Code, sections 1956(a)(1)(A)(i) and 2.
The factual basis provided at the consolidated hearing established that the Petitioner and co-defendant had transferred approximately $2,500 to another co-conspirator for use in purchasing equipment, compounds, and chemicals needed for the manufacture of methamphetamine. Part, if not all, of the $2,500 transferred was monies obtained by the Petitioner and the co-defendant from the sale of marijuana. Petitioner's involvement with the sale of marijuana resulted in a state conviction. At the time of the federal consolidated hearing Petitioner was serving a sentence for this state conviction.
Petitioner's PSI calculated her criminal history at a Level IV. Three of the points included within her criminal history calculation were based on the state marijuana conviction that Petitioner was currently serving. The PSI included the state marijuana conviction under the ambit of a "prior conviction" pursuant to USSG § 4A1.1(a). Neither Petitioner nor her attorney objected to this calculation.
The PSI set forth the following offense level computation. In accordance with the November 1, 1997 edition of the United States Sentencing Guideline (USSG) manual, the money laundering offense fell under § 2S1.1, Laundering of Monetary Instruments, which specified a base offense level of twenty-three (23). A specific offense characteristic of using "funds that were the proceeds of an unlawful activity involving the manufacture, importation or distribution of narcotics" authorized an additional three (3) point enhancement. Petitioner received a three (3) point downward adjustment under § 3E1.1 for acceptance of responsibility, resulting in a total offense level of twenty-three (23).
At the consolidated hearing, Petitioner's counsel argued for a further two (2) point downward adjustment for minor participant pursuant to USSG § 3B1.2(b). The court granted the two (2) point minor participant downward adjustment. Thus, at the consolidated hearing, Petitioner was sentenced on the basis of a total offense level of twenty-one (21) with a criminal history calculation of IV, which dictated a guideline range of fifty-seven (57) to seventy-one (71) months. Petitioner was sentenced to fifty-seven (57) months.
It was also discussed at the consolidated hearing whether Petitioner's sentence should run concurrent with the state marijuana conviction. Petitioner's counsel argued that under USSG § 5G1.3(b) the federal sentence should be imposed to run concurrently with the state marijuana sentence. The government disagreed, arguing that § 5G1.3(b) was inapplicable to the case. Regardless of the applicability of § 5G1.3(b), the government stated that it was not seeking a consecutive sentence anyway. The court agreed with the government that § 5G1.3(b) was inapplicable. Following the government's assertions that it did not seek consecutive sentences, the court imposed Petitioner's federal sentence concurrent with her state sentence. The court ordered that the concurrent sentence would not be considered to begin, however, until Petitioner was taken into federal custody, which was only two days prior, March 9, 1998, by writ of habeas corpus.
Section 5G1.3, Imposition of a Sentence of a Defendant Subject to an Undischarged Term of Imprisonment, provides:
(a) If the instant offense was committed while the defendant was serving a term of imprisonment . . . or after sentencing for, but before commencing service of, such term of imprisonment, the sentence for the instant offense shall be imposed to run consecutively to the undischarged term of imprisonment.
(b) If subsection (a) does not apply, and the undischarged term of imprisonment resulted from offense(s) that have been full taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment.
(c) (Policy Statement) In any other case, the sentence for the instant offense may be imposed to run concurrently, partially concurrently, or consecutively to the prior undischarged term of imprisonment to achieve a reasonable punishment for the instant offense.
Petitioner asserts that her counsel was ineffective during the sentencing and appeal phase of this case by: (1) not arguing that Petitioner's criminal history category was erroneously calculated; and (2) failing to argue on appeal that Petitioner should have received credit on her federal sentence, pursuant to USSG § 5G1.3(b), application note 2, for the time she spent incarcerated on her state offense.
II. Discussion
The first issue to be determined is whether the petition is properly before the court. As has been mentioned above, Petitioner was a party to a plea agreement in which she "waived any right to appeal the imposition of sentence upon her under Section 3742(a) of Title 18, United States Code, excluding any issues that relate to the establishment of the Guideline range or an upward departure from the Guideline range that is established at sentencing." See Plea Agreement ¶ 26. Petitioner also waived "all rights to contest the conviction or sentence in any post-conviction proceeding, including one pursuant to section 2255 of Title 28, United States Code." Id.
Petitioner's § 2241 writ of habeas corpus petition falls within her knowing and voluntary waiver of "all rights to contest the conviction or sentence in any post-conviction proceeding." Waivers of rights to appeal are specifically enforced in this district and within the Eighth Circuit. See United States v. Floriberto Estrada-Bahena, ___ F.3d ___, No. 99-3280, 2000 WL 76574, at *1 (8th Cir. Jan. 27, 2000) (specifically enforcing defendant's promise in plea agreement not to appeal by dismissing his appeal). For this reason, the petition for writ of habeas corpus is not properly before the court.
Petitioner has not and cannot assert that this waiver was not knowing and voluntary. It was specifically discussed with her by the district court judge in her consolidated hearing, where her plea of guilty was accepted as a knowing and voluntary decision.See United States v. Greger, 98 F.3d 1080, 1081-82 (8th Cir. 1996) (so long as sentence is not in conflict with negotiated plea agreement, knowing and voluntary waiver of right to appeal from sentence will be enforced; appeal waiver is valid where it was included in plea agreement, discussed at change-of-plea hearing, court imposed sentence without objection from defendant, and court reviewed appeal waiver at sentencing).
Notwithstanding the above, there are additional procedural defects which render the petition improper. While Petitioner has cloaked her complaints, incorrect criminal history calculation and failure to give credit for time served, under the guise of "ineffective assistance of counsel," Petitioner is really attacking her sentence. These types of challenges are most appropriately brought as a motion pursuant to 28 U.S.C. § 2255. See Triparti v. Henman, 843 F.2d 1160, 1162 (9th Cir. 1988) (a § 2255 motion is the appropriate remedy for violations that occur at or prior to sentencing). Again, this is a type of relief that Petitioner has specifically waived in her plea agreement. Additionally, Petitioner has once brought a § 2255 motion that was dismissed by this court. Thus, Petitioner is barred by the successive motion requirements of 28 U.S.C. § 2255.
Petitioner attempts to argue that the restrictions on filing successive motions coupled with her express waiver of her right to file for post-conviction relief in her plea agreement constitutes an impermissible suspension of the writ of habeas corpus. The Suspension Clause provides that "[t]he privilege of the Writ of Habeas Corpus shall not be suspended, unless when in the Cases of Rebellion or Invasion the public safety may require it." U.S. CONST. art. I, § 9, cl. 2. The successive motion restrictions alone, however, do not amount to an unconstitutional suspension of habeas corpus. See Felker v. Turpin, 116 S.Ct. 2333, 2339-40 (1996). The court fails to see how coupling the restrictions with Petitioner's own voluntary waiver of rights amounts to an unconstitutional suspension as well.
The Suspension Clause falls within Article I of the United States Constitution which sets forth the powers and duties of the United States Congress. It is Congress which is forbidden, with some exception, to suspend the writ of habeas corpus. Congress has not done so here. Indeed, it is Petitioner's own voluntary waiver of the right to challenge her conviction and/or imposition of her sentence which have foreclosed habeas corpus relief.
For all these reasons, Petitioner's request for a writ of habeas corpus is not properly before the court. Nonetheless, lest Petitioner receives the impression that procedure is more important than justice, the court has considered the merits of her claim and determines that Petitioner is not entitled to a writ.
Section 2243 of Title 28, United States Code, provides:
A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.
The court has not issued a show cause order as it appears that Petitioner is not entitled to a writ of habeas corpus.
Petitioner's first claim is that her criminal history category was erroneously calculated. The PSI assigned nine criminal history points to petitioner which resulted in a criminal history category IV. Three of the points included within the calculation were based on the state marijuana conviction that she was currently serving. The PSI included the state marijuana conviction as a "prior conviction" pursuant to USSG § 4A1.1(a).
In determining a defendant's criminal history category, three points are assessed "for each prior sentence of imprisonment exceeding one year and one month." USSG § 4A1.1(a). "The term `prior sentence' means any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial or plea ofnolo contendere, for conduct not part of the instant offense." USSG § 4A1.2(a)(1) (emphasis added). "Although conduct that is part of the instant offense should be counted as relevant conduct rather than as a prior sentence, conduct is not part of the instant offense when it is a `severable distinct offense.'" United States v. Copeland, 45 F.3d 254, 256 (8th Cir. 1995). Such considerations as "temporal and geographical proximity, common victims, and a common criminal plan" guide the analysis. Id.
Petitioner argues that the federal money laundering offense is not distinct and severable from her state felony drug conviction. While involved in the break up of a methamphetamine lab, authorities learned that Petitioner and her co-defendant were possibly involved in purchasing methamphetamine and supplying money for purchase of the methamphetamine manufacturing equipment. A search warrant was executed at their residence. During the course of the search, authorities discovered six baggies of marijuana, drug paraphernalia, cash, and a bong. Petitioner was arrested and charged by the state with felony possession with intent to deliver a controlled substance. Petitioner was convicted and received a sentence of four years incarceration which began September 26, 1997.
It is true that the money laundering offense and the drug conviction occurred during the same time period and both charges arose out of one investigation conducted by federal authorities. Indeed, the proceeds from Petitioner's state conviction were the funds used to support the money laundering conviction. It is equally true, however, that "a defendant is not entitled to merge all criminal activities simply because these activities occurred over a single span of time, or out of a common base of operations." United States v. Torres-Diaz, 60 F.3d 445, 448 (8th Cir. 1995). That the Petitioner's two criminal activities were occurring at the same time and discovered together, is not determinative on whether those crimes were part of the same offense.
The state conviction resulted from the seizure of marijuana. The money laundering charge arose from Petitioner investing illegally obtained money in a methamphetamine lab. Petitioner has produced no evidence that the marijuana and methamphetamine were connected by a common criminal plan. There is no evidence that anyone but Petitioner and her co-defendant were involved in the marijuana; whereas, the methamphetamine lab that she invested in involved two to three additional people. Likewise, there is no evidence of "common victims." The only support Petitioner can point to is "temporal and geographic proximity." This alone does not suffice. The crimes of money laundering and possession with intent to deliver controlled substances are distinct offenses. Thus, there was no error in including the state conviction as a "prior offense" for purposes of calculating Petitioner's criminal history category.
Additionally, the court notes that had the three points not been added, Petitioner's criminal history category would have been a III. A net offense level of twenty-one (21) with a criminal history III dictates a range of forty-six (46) to fifty-seven (57) months. Petitioner actually received a sentence of fifty-seven (57) months which still falls within the guideline range for the lower criminal history level. It is naive and presumptuous to assume that had the criminal history been calculated at a lower level, the court would have ignored the additional criminal conduct when imposing sentence. Moreover, the court notes that the sentences imposed on Petitioner and her co-defendant, to whom she was married at the time, were purposefully identical. See Transcript, p. 65. Thus, Petitioner has suffered no prejudice. See Torres-Diaz, 60 F.3d at 449 (noting that error in calculating the guideline range is deemed harmless when sentencing court would have imposed the same sentence).
Petitioner's next claim is that she should have received credit for the time served on her state marijuana conviction because it was related to the federal offense. The guidelines provide, with some exceptions not relevant here, that where an "undischarged term of imprisonment resulted from offense(s) that have been fully taken into account in the determination of the offense level for the instant offense, the sentence for the instant offense shall be imposed to run concurrently to the undischarged term of imprisonment." USSG § 5G1.3(b). The commentary instructs that if a concurrent sentence is "imposed pursuant to subsection (b), the court should adjust the sentence for any period of imprisonment already served as a result of the conduct taken into account in determining the guideline range for the instant offense if the court determines that period of imprisonment will not be credited to the federal sentence by the Bureau of Prisons." USSG § 5G1.3, application note 2.
Petitioner was sentenced to serve her imprisonment concurrently with the remaining term of her state conviction, but was not credited for the time (roughly six months) she had already spent in state custody. A credit or an adjustment for this time should be given if the state marijuana conviction was an offense that had been fully taken into account in the determination of her offense level on the money laundering charge. As discussed above these two convictions are not the same offense. Likewise, the marijuana conviction is not "fully taken into account" in the money laundering charge.
Pursuant to USSG § 2S1.1 Petitioner began with a base offense level of twenty-three (23), three (3) levels were added or "taken into account" since the funds laundered were the proceeds of unlawful activity involving controlled substances. However, the marijuana conviction was not "fully taken into account." Unlike the controlled substances guidelines, the money laundering guidelines make no differentiation based upon the amount or type of drug involved. The marijuana conviction is only related to the money laundering in a minor way. This was specifically the finding of the court. See Transcript p. 58. Nevertheless, under the court's discretionary power, Petitioner was sentenced partially concurrently to her state sentence. See USSG § 5G1.3(c) (providing as a policy statement that in some cases the sentence may be imposed to run concurrently, partially concurrently, or consecutively to achieve a reasonable punishment for the instant offense). She was, therefore, not entitled to credit for the time served on her state conviction.
In light of the determination that Petitioner's criminal history category was correctly established at sentencing and that she was not entitled to credit for time served, her claims of ineffective assistance of counsel during sentencing and on appeal must fail.See Strickland v. Washington, 466 U.S. 668, 687 (1984) (stating the test for ineffective assistance of counsel as deficient performance by counsel and prejudice to the defendant).
III. Conclusion
The petition for writ of habeas corpus is not properly before this court and, even if it were, the Petitioner is not entitled to relief. Accordingly, the petition (doc. #1) is hereby DENIED.
IT IS SO ORDERED.
RODNEY S. WEBB, Chief Judge, United States District Court.