Opinion
Crim. No. 99-139 (M.J.D.); Civ. No. 01-170 (M.J.D./J.G.L.)
October 31, 2001
petitioner on his own behalf.
Eric P. Johnson, Assistant United States Attorney for and on behalf of respondent.
MEMORANDUM OPINION AND ORDER
This matter came before the Court, the Honorable Michael J. Davis, on Petitioner's motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 on the grounds that the conviction was obtained and the sentence imposed in violation of his Sixth Amendment right to effective assistance of counsel.
BACKGROUND
On May 5, 1999 petitioner, Shawn Edmund Shaw, was charged by indictment with aiding and abetting other felons in possessing a firearm and being a felon in possession of a firearm, in violation of 18 U.S.C. § 2 and 922(g)(1). Mr. Shaw entered a denial to the indictment. Numerous motions were filed on or about July 22, 1999 including motions to suppress evidence and sever the cases.
A motion to dismiss was filed on October 8, 1999 which was denied on October 12, 1999. Reconsideration of the motion to dismiss was requested on October 15, 1999 and denied on October 19, 1999.
A plea agreement was reached in this matter and a hearing held on November 4, 1999. The government agreed to recommend that the defendant receive a three-level credit for acceptance of responsibility as long as he testified truthfully during his change of plea and cooperated with probation during the pre-sentence investigation. The government also agreed to dismiss counts one and two (relating to Mr. Shaw) on the original indictment as long as the plea agreement was accepted. (see Change of Plea Transcript p. 3-4). Mr. Shaw in turn, waived his right to be charged by Grand Jury indictment and pleaded guilty to the one count information of Possession of Stolen Firearm in violation of 18 U.S.C. § 922(j) and 924(a)(2). (see Change of Plea Transcript p. 19-27 and Plea Agreement).
Both parties agreed that the base offense level was 24 and that the maximum punishment for the offense would be ten (10) years and a fine of up to 2,000,000. (see Plea Agreement). They also agreed to a supervised release term of at least two (2) years but up to three (3) years, a mandatory special assessment of $100.00, the assessment of the defendant of the costs of prosecution, imprisonment, and supervision, and the possible loss of eligibility for federal benefits. (see Plea Agreement). Finally, on the record, both parties agreed that if the Court sentenced the defendant at an offense level of 25 or below their right to appeal the sentence directly or collaterally would be waived. (see Change of Plea Transcript p. 5 and 16).
A pre-sentence investigation was completed. A total offense level of 28 was computed from the base offense level of 24 plus one enhancement point for three or more firearms, two enhancement points for a stolen firearm, and four enhancement points for possession of a firearm in connection with another felony, minus the three acceptance of responsibility points. (see Pre-Sentence Investigation). Mr. Shaw filed a motion for a downward departure on February 29, 2000 based on his medical condition (Reiter's disease). Mr. Shaw's medical records were attached to the motion for the Court's review.
On March 3, 2000 a sentencing hearing was held. The Court found the total offense level to be 23, rejecting probation's recommendation for five (5) enhancement points (one for three or more firearms and four for weapon used in connection with another felony). The Court also found the criminal history category points to be IV, leaving an imprisonment range of 70 to 87 months, supervised release of two to three years and a fine range of $10,000 to $100,000 along with a special assessment of $100. (see Sentencing Transcript p. 2).
The downward departure motion was argued on March 3, 2000. Mr. Shaw's attorney informed the Court that Mr. Shaw is in constant pain, that he suffers similar symptoms as someone suffering from rheumatoid arthritis, and that he takes numerous medications that only treat the pain and not the disease. (see Sentencing Transcript p. 3-4). Mr. Gray relied mostly on his written memorandum and the attached medical records. The Court indicated a concern with Mr. Shaw's inconsistency in treatment and denied his motion for a downward departure based on physical condition. (see Sentencing Transcript p. 3). Mr. Shaw was sentenced to 78 months in prison, three years supervised release.
Mr. Shaw filed a motion to correct or vacate sentence pursuant to 28 U.S.C. § 2255 on January 29, 2001 claiming ineffective assistance of counsel.
ANALYSIS
A petition filed pursuant to 28 U.S.C. § 2255 is not a substitute for a direct appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Collateral relief under § 2255 may be available for claims not raised on direct appeal, if: 1) such claims involve jurisdictional or constitutional issues, or involve a fundamental defect which inherently results in a complete miscarriage of justice; and 2) the Petitioner shows cause for the procedural default and resulting prejudice. Bedford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). Ineffective assistance of counsel is an attack on the Sixth Amendment right to counsel, a constitutional issue, permissible under 28 U.S.C. § 2255. Anderson, 25 F.3d at 706.
Waiver of Right to Appeal
A knowing and voluntary waiver of direct-appeal rights is generally enforceable. United States v. Goings, 200 F.3d 539, 543 (8th Cir. 2000). "As a general rule, there is no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context." DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000) citing United States v. His Law, 85 F.3d 379 (8th Cir. 1996) (citing Jones v. United States, 167 F.3d 1142, 1145 (7th Cir. 1999)). Waivers preserve the finality of judgments and sentences, and are of value to the accused to gain concessions from the government. Id.
All waivers however, are not absolute. A defendant cannot waive [his] right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement. DeRoo, 223 F.3d at 923 citing United States v. Michelsen, 141 F.3d 867, 872 (8th Cir.), cert. denied, 525 U.S. 942, 119 S.Ct. 363, 142 L.Ed.2d 299 (1998). In addition, a defendant cannot waive [his] right to an appeal if the waiver was not knowing and voluntary. Id. citing United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999).
Mr. Shaw is not claiming his sentence was illegal or imposed in violation of the terms of the agreement. Rather, Mr. Shaw argues that his plea was not knowing or voluntary due to his attorney's failure to perform within the standards of a reasonably competent attorney and to advise him of the consequences of the waiver provision in his plea agreement.
Assuming this to be true, Mr. Shaw's motion shall be evaluated on the merits of his ineffective assistance of counsel claim.
Ineffective Assistance of Counsel:
A petitioner faces a heavy burden to establish ineffective assistance of counsel pursuant to section 2255. DeRoo v. United States, 223 F.3d 919,925 (8th Cir. 2000) citing United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To succeed on a claim of ineffective assistance of counsel, Petitioner must overcome the presumption of "reasonable professional assistance" and show that [his] counsel's representation was deficient and that the deficient performance prejudiced [his] case. Id. at 925 citing Cheek v. United States, 858 F.2d 1330, 1336 (8th Cir. 1988) (citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), see also United States v. Delagado, 162 F.3d 981 (8th Cir. 1998). If a petitioner cannot prove prejudice, whether a counsel's performance was deficient need not be addressed. DeRoo, 223 F.3d at 925 citing Apfel, 97 F.3d at 1076.
In establishing prejudice, the petitioner must show, to a reasonably certainty, that but for [his] counsel's unprofessional errors, the result of the proceeding would have been different. see Cheek, 858 F.2d at 1336 (citing Strickland, 466 U.S. at 694), see also Blankenship v. United States, 159 F.3d 336 (8th Cir. 1998); United States v. Acty, 77 F.3d 1054, 1059 (8th Cir. 1996). Strickland defined a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 693-94. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693-94. Petitioner Shaw, in the present matter, asserts that but for the failure of his counsel to advise the court, at the time of sentencing, of his secondary but aggravating condition of syphilis and but for his counsel's failure to argue the notion of double counting on the remaining two enhancement points, he (petitioner) would not have been sentenced to 78 months in prison and he would not have signed the plea agreement as set forth by the prosecution. However, if there is no reasonable probability that Mr. Shaw would have been successful, he cannot prove prejudice. DeRoo, 223 F.3d at 925 citing Cf. Hill, 474 U.S. at 59, 106 S.Ct. 366 (stating that resolution of the "prejudice" inquiry will depend largely on the likelihood of success if the alleged error were corrected).
Downward Departure Based on Physical Condition or Hardship:
Under the United States Sentencing Guidelines physical conditions and undue hardships are permissible bases for departure, however they are discouraged. See Koon v. United States, 518 U.S. 81, 95-98, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States Sentencing Guidelines § 5H1.4. Nevertheless, extraordinary physical impairments can be a reason to impose a sentence below the applicable guideline range. Id.
"Extraordinary physical impairment" is determined through answering the following questions: is the particular defendant's physical condition such that [he] would find imprisonment more than the normal hardship?; would imprisonment subject [him] to more than the normal inconvenience or danger?; and does the physical condition have any substantial present effect on the defendant's ability to function?. Id. A departure however, cannot be granted if there is no evidence that imprisonment would worsen the defendant's condition or that the prison could not provide the special care need by the defendant. United States v. Rabins, 63 F.3d 721, 729 (8th Cir. 1995).
Mr. Shaw clearly suffers from Reiter's disease and endures pain and stiffness on a daily basis. Assuming that Mr. Shaw suffers from a secondary aggravating disease and that this disease exacerbates the symptoms of the Reiter's disease or causes the Reiter's disease to become life-threatening, there is no showing that the condition cannot be treated by prison medical facilities. Mr. Shaw's condition is not worsened by imprisonment nor does his condition require special medical care that cannot be provided to him by the prison. Although severe in nature and most likely very painful, Mr. Shaw's condition is treated with medications, rest, and physical therapy (i.e. physical activity and stretching of the joints and muscles). All treatments which can be provided to Mr. Shaw by prison staff. Further, Mr. Shaw's impairment does not seem to impede his ability to perform every day tasks required of him while in prison.
Therefore, presentation of additional evidence of a secondary aggravating disease would not have been any more successful than the evidence already presented.
Double Counting and the Two Point Enhancement Under § 2K2.1:
Double counting occurs when one part of the Guidelines is applied to increase a defendant's punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines. United States v. Hawkins, 181 F.3d 911 (8th Cir. 1999). "If the base offense level does not take into account the stolen nature of the firearms then the upward enhancement is not double counting." Id.
Great care was taken in calculating Mr. Shaw's offense level. This Court rejected probation's recommendation for five enhancement points. Unless specifically stated in the Sentencing Guidelines, the Court makes the determination as to the applicability of the recommended enhancement points. There is no recommendation, in the Sentencing Guideline, as to the application of two points for a stolen weapon in reference to the crime of possession of a stolen firearm. Thus, its application is discretionary.
Prejudice :
Mr. Shaw was not prejudiced by the actions or inactions of his attorney. Mr. Shaw has failed to show that "but for" his counsel's unprofessional errors the result of the proceedings would have been different. There is no indication that Mr. Shaw would have been successful had a more persuasive argument been made regarding his physical condition. Nor is there evidence that Mr. Shaw's offense level would have been lower had his attorney objected to the two remaining enhancement points. Unreliability and unfairness does not result if ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entitles him. Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 844 (1993). A respondent is not entitled to an objection based on "double counting" and therefore suffers no prejudice from his counsel's deficient performance (failure to object). Perry v. Lockhart, 871 F.2d 1384 (8th Cir. 1989). Thus, Mr. Shaw has failed to establish that he suffered prejudice due to the inactions of his attorney.
Deficient Representation:
Had this Court found that Mr. Shaw established prejudice due to his attorney's actions or inactions, Mr. Shaw would not have been successful in establishing that his attorney's actions were unreasonable or deficient, the second prong of the ineffective assistance of counsel test. In determining whether or not counsel's performance was professionally unreasonable, the Strickland court suggests;
"[A] guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not `a reasonably competent attorney' and the advice was not `within the range of competence demanded of attorneys in criminal cases.' . . . When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness.
Id. at 687-688 (citations omitted). In addition, the Court must be highly deferential to counsel's performance, and must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct". Id. at 689-90. Thus, the correct inquiry is not whether counsel's decision was correct or wise, but whether it `was an unreasonable one which only an incompetent attorney would adopt' considering the circumstances." United States v. Flynn, 87 F.3d 996,1000 (8th Cir. 1996) (citing Stokes v. Armontrout, 851 F.2d 1085,1092 (8th Cir. 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989)).
In the present matter, Mr. Shaw's argument is not that his attorney failed to make any argument, but rather that his attorney did not make the zealous and persuasive argument required of him. He claims his attorney should have done more, he should have called witnesses, conducted medical research, educated the court more thoroughly on the extent and ramifications of the disease, and informed the court of a secondary condition not contained in the medical records.
Mr. Shaw's attorney submitted a written memorandum of law detailing the reasons for a downward departure. An abundance of medical records were attached to the memoranda, some dating back to 1996, detailing the progression and current status of Mr. Shaw's disease. The medical records however, also evidenced Mr. Shaw's inconsistency in treatment, indicating that Mr. Shaw did not take prescribed medication on a regular and consistent basis or in the manner prescribed by his treating physician and that he missed several appointments.
The records further revealed that Mr. Shaw suffers from chronic pain that could improve with consistent treatment and therapy, that his symptoms are exacerbated by inactivity, and that he is encourage to have regular movement and stretching. Nowhere however, do the records diagnose Mr. Shaw with second stage syphilis. Syphilis is eluded to in one report as something Mr. Shaw may have had when he was 15 years of age, but no further mention is made of the disease.
The evidence presented, by Mr. Shaw's attorney, in support of the motion for a downward departure is demonstrative of the actions of a reasonable attorney. Mr. Shaw may have wanted more information to be presented on his behalf, but the information that was presented rises to the level of competence and is not deficient or unreasonable.
Mr. Shaw also claims that his attorney should have made a "double counting" argument regarding the two enhancement points imposed for the crime involving a stolen firearm. It is clear however that the Court carefully considered the recommended enhancement points. The Court did not accept five of the points recommended by the probation agent. Careful consideration was given to all of the recommended enhancement points. The failure of Mr. Shaw's attorney to object to the remaining two points was not unreasonable or deficient.
IT IS HEREBY ORDERED that Petitioner's Motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct his Sentence is DENIED. Petitioner's motion for an Evidentiary Hearing and motion for Appointment of Counsel are denied as moot.