Opinion
CIVIL NO. CCB-01-1333, Criminal No. CCB-98-0424
May 27, 2004
MEMORANDUM
Odesa Cash, a federal prison inmate, has filed a petition under 28 U.S.C. § 2255 challenging his conviction and the sentence imposed May 5, 2000 following his plea of guilty to a charge of conspiracy to distribute and possess with intent to distribute cocaine hydrochloride and cocaine base. Counsel was appointed to represent Cash at an evidentiary hearing, which was held on April 30, 2004. His claims and my rulings are explained below.
Cash made several claims in the petition he personally filed on May 7, 2001. Those were:
The petition was delivered to prison authorities for mailing on May 1, 2001.
1.) Ineffective Assistance of Counsel, for:
a.) inducing Cash to enter a guilty plea without advising him "he was waiving his constitutional right to a speedy trial,"
b.) inducing Cash to enter a guilty plea and stipulate to the type and amount of the alleged controlled substance without advising him the stipulation "would have a detrimental effect on his sentence and remove any finding of fact concerning the type and amount," and
c.) failing to file a notice of appeal though Cash requested him to do so, and counsel informed Cash that he would do so;
2.) Lack of Subject-Matter Jurisdiction;
3.) Illegality of Indictment and Sentence Under Apprendr.
4.) Violation of Due Process in Rule 11 Proceeding Based on Inaccurate Statement of Elements and Statutory Maximum; and
5.) Violation of Interstate Agreement on Detainers Act ("IADA").
(Docket No. 190.) The government filed a Response (Docket No. 208); thereafter Cash filed a Reply (Docket No. 216), a Supplement (Docket No. 219), and an Amended Reply (Docket No. 229). Cash also filed several motions related to his attempt to obtain recordings of conversations he had with his trial counsel. The court then appointed counsel to represent Cash and an evidentiary hearing followed.
I very much appreciate the work done by appointed counsel Jonathan Van Hoven on behalf of Cash.
The charges against Cash were filed in October 1998, when the federal grand jury for the District of Maryland returned an indictment charging him under Count One with conspiracy to distribute and possess with intent to distribute both cocaine hydrochloride (powder) and cocaine base ("crack"), in violation of 21 U.S.C. § 841(a)(1) and 846. Represented by retained counsel Stanley Needleman, Cash pled guilty to Count One on February 4, 2000 pursuant to a plea agreement. (Gov't's Resp. at Ex. A and D.) Based on the quantity of drugs the government intended to prove was reasonably foreseeable to Cash, 1.5 kilograms or more of crack, Cash was correctly advised in his plea agreement and at his plea hearing that the maximum sentence under the statute was life in prison, pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). (Id. at Ex. A at ¶ 3,id. at Ex. D at 7.) A quantity of 1.5 kilograms of crack by itself established a base offense level of 38 under the sentencing guidelines. See U.S.S.G. § 2D1.1(c)(1)(1998).
The indictment was valid (even though Cash may not have received a signed copy) and the facts alleged were sufficient to confer subject matter jurisdiction on this court. See 18 U.S.C. § 3231; 21 U.S.C. § 841(a)(1), 846.
Indeed, Cash agreed to the statement of facts which included his arrest on September 12, 1996 in possession of 240 grams of cocaine base. (Gov't.'s Resp. at Ex. A at Ex. A p. 2; id. at Ex. D at 18.) This incident also was alleged as an overt act of the conspiracy under Count One in Cash's indictment. (Id. at Ex. E.) That quantity of crack exposed Cash to a life sentence. See 18 U.S.C. § 841(b)(1)(A)(iii).
Under the plea agreement, the government and Cash stipulated to the applicable sentencing guideline factors. (Gov't's Resp. at Ex. A at ¶ 5.) While the base offense level would have been 43 because of the murder of a co-conspirator, Eric Williams, see U.S.S.G. § 2D1.1(d)(1), it was agreed that the chain of events which led to Williams being shot and killed, by someone other than Cash, warranted a four-level downward departure to level 39, see id. § 2A1.1, cmt. n. 1. The parties agreed on a two-level upward adjustment for possession of a firearm, see id. § 2D1.1(b)(1), and a three-level downward adjustment for acceptance of responsibility,see id. § 3E 1.1. Left in dispute was a two-level upward adjustment for Cash's role in the offense, see id. § 3B 1.1(c).
Prior to sentencing it was agreed, to the benefit of Cash, that the government would not seek a role adjustment, leaving the offense level at 38 rather than (possibly) 40. (Gov't.'s Resp. at Ex. A Addendum). This placed Cash, with a criminal history category of I, in a guideline range of 235 to 293 months, rather than 292 to 365 months. In exchange, Cash and the government agreed that a sentence in the middle of this range at 262 months was appropriate, and would be recommended jointly by both parties at sentencing. (Id.) At the sentencing hearing on May 5, 2000, the court followed the parties' stipulations regarding the applicable guideline factors. (Id. at Ex. C at 6-8, 12-13.) After subtracting 37 months credit for related state incarcerations under U.S.S.G. § 5G1.3(b), the court imposed a sentence of 225 months, just under 19 years. No direct appeal was filed.
A defendant who has pled guilty generally cannot collaterally attack his conviction, as long as the plea was `Voluntary and intelligent" and the defendant was "advised by competent counsel." Bouslev v. United States. 523 U.S. 614, 621 (1998) (quoting Mabry v. Johnson, 467 U.S. 504, 508 (1984)). As noted, Cash filed a § 2255 motion within the statute of limitations collaterally attacking his guilty plea by claiming ineffective assistance of counsel. A defendant alleging ineffective assistance must show both incompetence — that counsel's performance fell below "an objective standard of reasonableness" — and prejudice — "a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington 466 U.S. 668, 688, 694 (1984). To establish the second prong of prejudice when challenging a guilty plea based on ineffective assistance, a defendant must show that there is a reasonable probability that, but for counsel's error, he would not have pled guilty and would have insisted on going to trial. See United States v. Bowman, 348 F.3d 408, 416 (4th Cir. 2003). The principal argument Cash relied on at the evidentiary hearing, in support of which he submitted copies of four recorded conversations between himself and Mr. Needleman made in or about July 2002 while Cash was in the custody of the Bureau of Prisons (Def.'s Ex. 1 and 2), is that Mr. Needleman promised him a sentence of 16% years. This claim is not persuasive.
First, the recorded conversations with Mr. Needleman are at best ambiguous, to the extent they are relevant at all. Mr. Needleman appears to tell Cash that the sentence was to be 19 years, of which he would serve 16 1/2 after various credits and good time. Mr. Needleman does not agree, on the tape, that he promised a 16% year sentence would be imposed by the court. This version is in fact consistent with the Addendum to Cash's plea agreement and the sentence Cash received.
Mr. Needleman was not called as a witness at the evidentiary hearing.
Second, even if Mr. Needleman had told Cash he believed the sentence would be 16 1/2 years, inaccurate predictions of a guideline sentence do not necessarily amount to ineffective assistance. Even assuming that Cash could establish that his counsel's predictions fell below an objective standard of reasonableness, he cannot show that he would not have pled guilty, and thus cannot establish prejudice. Any misinformation Cash may have received from Mr. Needleman was corrected by the information in his plea agreement and by the court at Cash's Rule 11 plea colloquy. See United States v. Foster. 68 F.3d 86, 88 (4th Cir. 1995).
Cash was fully advised of his rights and the terms of his plea agreement at his Rule 11 proceeding. (Gov't's Resp. at Ex. D.) The specific stipulations regarding guideline factors, base offense level, downward departure, drug quantity, firearm possession, and possible role adjustment were all reviewed with Cash, who had "no questions" about that aspect of the plea. (. at 18-20). Cash also stated under oath that he understood there was no guarantee of a particular sentence. (Id. at 20, 22-23, 24-25.) Cash affirmed that he was satisfied with Mr. Needleman's performance. (Id. at 27.) Representations under oath at a guilty plea colloquy ordinarily are binding on a defendant unless he can present clear and convincing evidence to the contrary.Walton v. Angelone, 321 F.3d 442, 462 (4th Cir. 2003). Further, although he was not under oath, Cash confirmed at his sentencing when the Addendum to his plea agreement was discussed that he agreed 262 months was "an appropriate sentence." (Gov't's Resp. at Ex. C at 5.) Cash further agreed that he had read and signed the Addendum and that he had enough opportunity to discuss it with Mr. Needleman before he signed it. (Id. at 6.)
The other grounds cited by Cash in support of his ineffective assistance claim are without merit. Cash asserts that Mr. Needleman failed to advise him that he was waiving his right to a speedy trial and that his stipulation to the type and amount of drugs involved would affect his sentence. Even if these allegations were proven and were found to fall below an objective standard of reasonableness, Cash still cannot establish prejudice. Cash was advised in his plea agreement and at his plea hearing that his sentence could be based on the stipulated quantity of drugs, and that he was waiving any rights under the Speedy Trial Act. (Gov't.'s Resp. at Ex. A at ¶ 5(b), 10; id. at Ex. D at 8-9, 18-20, 23.) Cash is bound by his representations during the plea colloquy that he understood these terms, and was satisfied with Mr. Needleman's performance. (Id. at Ex. D at 13, 26-27.) In sum, Cash has not shown that he received ineffective assistance or that his plea was involuntary; therefore, he is not entitled to relief under § 2255.
It is in any event doubtful Cash could obtain the relief he sought, which was reformation of the plea agreement and resentencing to 16% years. There is absolutely no evidence of a promise that could be enforced against the government. Cf. United States v. White. No. 03-6739, slip op. at 8-9, 14-15, ___ F.3d ___ (4th Cir. May 4, 2004). The remedy instead would be to permit withdrawal of the plea so that Cash could proceed to trial, which of course would again expose him to a possible life sentence.
As to Cash's claim that Mr. Needleman was requested to file an appeal and failed to do so, there was no persuasive evidence on the tape recordings or otherwise presented at the evidentiary hearing in support of this allegation, and the claim thus must be analyzed underStrickland. See Foster. 68 F.3d at 88-89 (analyzing such a claim under Strickland, rather than per se rule, where there was no evidence that defendant in fact requested appeal). Cash did not have any right to an appeal in light of the waiver contained in the plea agreement and discussed with Cash in open court. (Id. at Ex. A at ¶ 8; id. at Ex. D at 9-10, 22.) Under these circumstances, any failure by Mr. Needleman to file an appeal does not amount to ineffective assistance. Cf. Smith v. Robbins. 528 U.S. 259, 285-86 (2000) (stating that where counsel failed to file appellate brief defendant must establish a reasonable probability that, but for this error, he would have prevailed);United States v. Mikalajunas. 186 F.3d 490, 493 (4th Cir. 1999) (stating that failure to pursue appeal based on "a mere miscalculation of the likelihood of success" does not amount to ineffective assistance).
Cash waived his right to directly appeal his sentence, except as to any upward or downward departure not otherwise agreed upon in his plea agreement or a sentence that exceeded the statutory maximum. (Gov't.'s Resp. at Ex. A at ¶ 8.) The record in this case demonstrates that Cash's waiver of his appellate rights was a "knowing and intelligent decision." United States v. General 278 F.3d 389, 399-401 (4th Cir. 2002) (internal citation omitted). Cash thus had no possible grounds for appealing his sentence, because the parties had stipulated to all applicable guideline factors, the court followed these recommendations, and Cash's sentence of 225 months was less than the statutory maximum of life.
The other claims raised by Cash also are without merit. Cash has asserted that his indictment and sentence are defective under Jones v. United States. 526 U.S. 227 (1999) and Apprendi v. New Jersey. 530 U.S. 466 (2000), and that his guilty plea was invalid because the court improperly advised him of the elements and maximum penalty for the charged offense, in light of Jones andApprendi. The new rule announced in Jones and Apprendi does not apply retroactively on collateral review, and thus is not available to Cash. See Hartman v. Lee. 283 F.3d 190, 192 n. 2 (4th Cir. 2002); United States v. Sanders, 247 F.3d 139, 151 (4th Cir. 2001). Cash also objects because his base offense level included consideration of the murder of Eric Williams. This death was charged as an overt act of the conspiracy under Count One of Cash's indictment and included in the agreed-upon statement of facts under his plea agreement, and Cash was advised in his plea agreement and at his plea hearing that his base offense level would be 43 because of this. (Gov't.'s Resp. at Ex. A at ¶ 5(b), Ex. A pg. 1; id. at Ex. D at 14, 18-20.) Finally, Cash's claim that his speedy trial rights and rights under the IADA were violated must be denied, in light of Cash's IADA waiver (id. at Ex. F and G), the court's speedy trial orders (id. at Ex. H), and Cash's waiver of any rights under the Speedy Trial Act under his plea agreement and at his guilty plea (id. at Ex. A at ¶ 10; id. at Ex. D at 23).
The court entered two orders for continuances and excluded these periods of delay pursuant to 18 U.S.C. § 3161(h)(8)(A) and 3161(h)(8)(B)(iv).
All parties did agree, however, that Cash is entitled to one correction in his sentence. It was intended that his federal sentence should run concurrently with any time remaining on his state sentence (Id. at Ex. A at ¶ 5(h); id. at Ex. D at 21), but that was not reflected in the court's judgment order. Accordingly, an amended judgment will be entered so that Cash will receive nine months' credit for the time served in state custody from the date of sentencing, May 5, 2000, until his transfer to federal custody on February 10, 2001.
A separate order follows.
ORDER
For the reasons stated in the accompanying Memorandum, it is hereby Ordered that:
1. an amended judgment order will be entered consistent with the memorandum;
2. the motion to vacate under 28 U.S.C. § 2255 (docket no. 190) is otherwise DENIED with prejudice;
3. copies of this Order and the accompanying Memorandum shall be sent to the petitioner and counsel of record; and
5. the clerk of the court shall CLOSE this case.