Opinion
Civil Action No. 2:97-943-23, (Criminal Action No. 2:01-437-23)
May 20, 2002
ORDER
This matter is before the Court upon Petitioner's motion for relief under 28 U.S.C. § 2255. The United States has filed its Response and a Motion to Dismiss. For the following reasons, Petitioner's motion is denied.
BACKGROUND
Petitioner was indicted for both conspiracy to possess with intent to distribute and distribution of cocaine and cocaine base ("crack") in violation of Title 21, United States Code, §§ 841(a)(1) and 846, and a substantive count of possession with intent to distribute in violation of Title 21, United States Code, § 841(a). Petitioner entered a plea of nolo contendere on or about August 5, 1998 to the conspiracy count. Thereafter, on or about March 5, 1999, the Petitioner was sentenced to imprisonment for a total of 121 months.
Petitioner filed a notice of appeal from his sentencing. His appeal was denied and his conviction and sentence were affirmed in an unpublished opinion. dated March 22, 2000. See United States v. Karji Polite, Op. No. 99-4196 (decided March 22, 2000). Petitioner then filed this § 2255 motion, claiming he is entitled to have his guilty plea vacated and a new trial because his original counsel was ineffective.
DISCUSSION
I. Legal Standard
Petitioner proceeds under 28 U.S.C. § 2255, which provides, in part:
A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255.
On a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, the petitioner bears the burden of proving the grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). In deciding a § 2255 motion, the Court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" Id. Further, if the motion is brought before the sentencing judge, the judge may rely on recollections of previous events to dismiss the motion. Blackledge v. Allison, 431 U.S. 63, 74 n. 4 (1977). The Court has thoroughly reviewed the motions, files, and records in this case. Based on the circumstances of this case, the Court finds no hearing necessary to address petitioner's § 2255 motion.
II. Analysis
A. In effective Assistance of Counsel
In support of his motion for habeas relief, Polite argues he was denied effective assistance of counsel. In addressing ineffectiveness of counsel, the United States Supreme Court announced a two-prong test in Strickland v. Washington, 466 U.S. 668, 687-98 (1984). The first prong of the Strickland test relates to reasonably effective professional competence, and the second prong requires a showing of prejudice.
To satisfy the first prong, the Petitioner must show that his attorney's representation was deficient and that it fell below "an objective standard of reasonableness." Id. at 687-91. The Supreme Court and the Fourth Circuit Court of Appeals have emphasized that in making this determination, there is a presumption that trial counsel's conduct was within the wide range of reasonable professional assistance credited to attorney's representing criminal defendants. Id. at 689; see Fields v. Attorney General of Maryland, 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir. 1985).
In order to show that the second prong of the Strickland test has been violated. a petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
(1) Failure of counsel to argue for acceptance of responsibility under U.S.S.G. § 3E1.1
Petitioner first contends his attorney was ineffective for failing to argue for acceptance of responsibility, which could have reduced the Petitioner's sentence. U.S.S.G. § 3E1.1 (a) enables a defendant's sentence to be reduced "[i]f the defendant clearly demonstrates acceptance of responsibility for his offense." In order to obtain relief under this doctrine the defendant must accept full responsibility for all of his criminal conduct. See United States v. Gordon, 895 F.2d 932, 936 (4th Cir. 1990); United States v. Underwood, 970 F.2d 1336, 1338 (4th Cir. 1992). This includes accepting responsibility for dismissed counts. See United States v. Choate, 12 F.3d 1318, 1320 (4th Cir. 1996); United States v. Nale, 101 F.3d 1000, 1005 (4th Cir. 1996).
In the instant case, Petitioner concedes "he denied that he knew that passengers were throwing cocaine out of his van which, formed count seventeen." (Mem. Supp. Mot. Vacation of Sentence at 6). The facts indicate that the defendant drove recklessly and at high rates of speed through residential neighborhoods to allow his co-defendants time to jettison cocaine from the vehicle while being pursued by law enforcement officers. He therefore posed a risk to the neighbors as well to an innocent child passenger in his vehicle. Furthermore. Petitioner states that he "pled guilty to [only] count one." (Id.). Thus, the Petitioner cannot avail himself of § 3E1.1 because Petitioner denied certain aspects of his offensive conduct as opposed to accepting full responsibility. Accordingly, Petitioner's counsel was not ineffective for failing to argue for acceptance of responsibility under U.S.S.G. § 3E1.1.
(2) Failure of counsel to argue for reduction in offense level under U.S.S.G. § 3B1.2.
Second, Petitioner maintains his counsel was ineffective for failing to argue that Petitioner should have received a reduction in his sentence due to the "minimal participant" doctrine. Under section 3B1.2 of the Sentencing Guidelines, "a sentencing court may reduce the offense level of a minimal or minor participant in a conspiracy." United States v. Reavis, 48 F.3d 763, 769 (4th Cir. 1995). Furthermore, "subsection 3B1.2(a) provides for a four-level decrease in the offense level of `minimal' participants — those persons `who are plainly among the least culpable of those involved in the conduct of the group.'" Id. (quoting U.S.S.G. § 3B1.2, comment (n. 1)). Classification as a minimal participant, for the purposes of downward adjustment, is to be used infrequently. Id. (citing § 3B1.2, comment (n. 2)).
Petitioner fails to allege whether he was a "minimum participant"or "minor participant." However, Petitioner's memorandum seems to indicate that he is classifying his involvement in the offense as a "minimal participant." In Petitioner's memorandum, he states, "in the commentary to this section [U.S.S.G. § 3B1.2] illustrating an appropriate downward adjustment for a minimal participant involves a defendant, who was hired by a marijuana importation conspiracy to offload part of a single shipment of marijuana." (Mem. Supp. Mot. Vacation of Sentence at 7). In this example, the defendant qualified as a "minimal participant" because he was involved in a single transaction. The Fourth Circuit has also used this example to describe a "minimal participant." Reavis, 48 F.3d at 769.
In the instant case, Petitioner does not qualify as a "minimal participant" because his participation was not so limited. Petitioner asserts that his participation in "a drug operation was limited to as expressed by all co-conspirator's, `as an errand boy for Keith Martin,' and that he was never seen with any attributable amount of drugs." (Mem. Supp. Mot. Vacation of Sentence at 7). Although Petitioner argues that his role in the drug transaction was limited to an errand boy, he does not suggest that he was involved in a single or only a handful of transactions. Furthermore, in U.S. v. White, 875 F.2d 427, (4th Cir. 1989), the Fourth Circuit acknowledged that drug couriers did not qualify as "minimal participants." Id. at 434. In fact, the Fourth Circuit refused to accept the proposition that all drug couriers are less culpable than other members of a drug organization. Id. (citing United States v. Buenrostro, 868 F.2d 135, 138 (5th Cir. 1989)). Accordingly, Petitioner's counsel was not ineffective for failing to argue that Petitioner should be classified as a "minimal participant."
(3) Failure of trial counsel to move for a proper application of the "safety valve" provision
Finally, Petitioner argues he was prejudiced by counsel's failure to move for application of the "safety valve" statute of 18 U.S.C. § 3553. The safety valve statute allows a court faced with non-violent drug offenders to apply lesser sentencing under the sentencing guidelines. In order to obtain the benefit of the provision, the court must find the Petitioner met certain elements. In addition to these elements, the Fourth Circuit requires the "defendants to acknowledge responsibility for their actions before they may qualify for an application of the safety valve." United States v. Withers, 100 F.3d 1142, 1447 (4th Cir. 1996). Thus, implicit in the elements is full acknowledgment of responsibility.
These elements are as follows: (1) the defendant does not have more than one criminal history point, as determined under the sentencing guidelines; (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense; (3) the offense did not result in death or serious bodily injury to any person: (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense. as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substance Act; and (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement. 18 U.S.C. § 3553 (f).
As stated, Petitioner did not acknowledge full responsibility for the offense. Petitioner concedes that he "pled guilty to only, one account of the superceding indictment, Conspiracy-to possess with the intent to distribute cocaine and cocaine base." (Mem. Supp. Mot. Vacation of Sentence at 10), and that he denied other aspects of his involvement. Since Petitioner did not acknowledge full responsibility, he does not meet the requirements of the "safety valve" statute. Therefore, it was not unreasonable for Petitioner's counsel to decline to raise the "safety valve" statute, and Petitioner was not prejudiced by counsel's actions.
CONCLUSION
It is, therefore,
ORDERED, for the foregoing reasons Respondent's Motion to Dismiss is GRANTED. Accordingly, Polite's § 2255 Motion is hereby DISMISSED.