Opinion
Criminal Action No. 01-184, Civ. Act. 04-1855, Section "C" (5).
February 2, 2005
ORDER AND REASONS
This matter comes before the Court on motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 filed by the defendant, Bruce J. Baker ("Baker"). Having considered the record, the memoranda and the law, the Court has determined that the defendant is not entitled to relief for the following reasons.
After trial on March 5, 2002, the defendant was convicted by a jury of one count of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e), two counts of possession with intent to contribute cocaine and heroin in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C), and one count of possession of a firearm during and in relation to drug trafficking crimes in violation of 18 U.S.C. § 924(c)(1)(A)(i). He was sentenced to a total of 204 months on May 21, 2003, after receiving a motion under U.S.S.G. § 5K1.1 from the government, which was reduced by an additional 24 months pursuant to a motion filed under Fed.R.Crim.P. 35. A notice of appeal was not filed until April 23, 2004, and was dismissed as untimely by the Fifth Circuit on June 10, 2004. The Court construed certain correspondence from the plaintiff dated April 17, 2004, as possibly indicative of intent to file a motion under 28 U.S.C. § 2255, and gave the defendant time to confirm that intent by filing that motion on the proper forms, which were signed by the defendant on June 19, 2004, and deemed to be filed as of April 17, 2004. (Rec. Doc. 106).
In light of these circumstances, the Court does not deem the motion to be untimely filed under the one-year limitation period set forth in the Anti-Terorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2255.
Baker raises three arguments in this motion. First, he argues that the conviction under Count One of the superceding indictment for felon in possession of a firearm under 18 U.S.C. § 922(g)(1) is an unconstitutional exercise of the commerce clause, This argument fails for procedural and substantive reasons. First, as argued by the government, the failure to timely appeal carries consequences on collateral review. Review under Section 2255 generally is limited to issues of constitutional or jurisdictional magnitude which may not be raised for the first time on collateral review without a showing of "cause and prejudice," unless the error would result in a complete miscarriage of justice. See e.g., United States v. Lopez, 248 F.3d 427 (5th Cir. 2001); United States v. Cervantes, 132 F.3d 1106 (5th Cir. 1998). Here the defendant has shown neither cause, prejudice nor circumstances even approaching a complete miscarriage of justice.
Even if this issue was not procedurally defaulted, a review of the record indicates that the plaintiff signed a stipulation that the gun described in the superseding indictment was not manufactured in Louisiana "and therefore had to be transported across state lines in order to have traveled in or affected interstate commerce." (Trial Exh. C-1). Finally, "the constitutionality of Section 922(g) is not open to question."United States v. DeLeon, 170 F.3d 494, 499 (5th Cir. 1999). See also United States v. Daughtery, 264 F.3d 513, 518 (5th Cir. 2001).
Baker's second claim challenges the Court's allowance of evidence of prior convictions at trial as evidence of similar acts under Fed.R.Evid. 404(b). Again, this issue appears to be procedurally defaulted. Even if it were properly presented here, this objection to the admissibility of this evidence was carefully considered and rejected by the Court prior to trial; no reason to change that opinion has been presented.
Finally, the defendant argues that his trial counsel was ineffective under Strickland v. Washington, 466 U.S. 668, 687-688 (1984), which requires a showing that (1) counsel's performance fell below an objective standard of reasonableness; and (2) the defendant was prejudiced by counsel's deficient performance. Baker argues that his trial attorney (1) failed to establish an unspecified affirmative defense, (2) failed to put on favorable testimony and object to unfavorable testimony and evidence, and (3) failed to challenge the allegedly constitutionally defective count of the indictment. He also argues that his attorney misrepresented and gave faulty advice regarding his right to appeal.
The government does not challenged the procedural posture of this claim.
The Court strongly disagrees with the defendant on this issue. The defendant presents these arguments in general terms without recognizing what was actually presented and argued at trial. The Court's recollection is that counsel's performance was quite competent in the face of overwhelming evidence of guilt. The record reflects that defense counsel's representation yielded both 5K1.1 and Rule 35 post-trial motions for the defendant and shaved years off of his sentence.
The record also reflects that trial counsel withdrew at the sentencing hearing, at which time the Court advised the defendant of his right to appeal on the record. Under these circumstances, the defendant has failed to show either that a direct appeal would have produced a favorable result, or that he was unconstitutionally deprived of his right to appeal.
Accordingly,
IT IS ORDERED that the motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 filed by the defendant Bruce J. Baker is DENIED.
IT IS FURTHER ORDERED that the motion challenging the United States governments unlawful possession of legislative jurisdiction over the locus in quo filed by the defendant Bruce J. Baker is DENIED. (Rec. Doc. 117).