Opinion
Criminal Action No. 96-259 Section, "E"
February 14, 2001
MEMORANDUM OPINION
Petitioner Al King Jones has filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255. The United States has opposed his motion.
Facts and Procedural History
On September 6, 1996, petitioner Al King Jones, along with co-defendants Marcell Jackson and Richard Anderson were charged in a two-count indictment with one count of conspiracy to distribute a quantity of cocaine hydrochloride, a violation of 21 U.S.C. § 841 (a) (1) and 846 and with one count of attempting to possess with the intent to distribute two kilograms of cocaine hydrochloride, a violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. At his initial arraignment on October 22, 1996, petitioner pled not guilty to all counts. After a detention hearing, he was ordered detained. On December 4, 1996, co-defendant Anderson entered into a plea agreement and plead guilty to misprison of a felony, 18 U.S.C. § 4, which he was charged with by a one count superseding bill of information. On March 24, 1997, co-defendant Marcell Jackson also plead guilty to misprison of a felony, after having entered a plea agreement with the prosecution.
Petitioner Jones entered into a plea agreement with the United States and plead guilty to both counts of the indictment on February 26, 1997. He and his counsel, Bruce Ashley, signed the factual basis, acknowledging that he had read it and had no reason to believe that the government would not be able to introduce evidence to prove the facts stated therein. The factual basis states as follows, in pertinent part:
On August 18 and 19, 1996, the defendant, AL KING JONES, negotiated with an undercover law enforcement officer for the purchase of two kilograms of cocaine. Negotiations were carried on by JONES using, among other things, a digital pager a cellular telephone. On the afternoon of August 19, JONES and the undercover officer agreed to meet in the parking lot of a motel in Metairie, where the undercover officer was to deliver two kilograms of cocaine to Jones for $37,000. The motel location was chosen by the undercover officer.
At the time appointed for the meeting, JONES' co-defendant, Marcell Jackson, drove into the parking lot, drove around it briefly, and assumed a position that appeared to law enforcement agents as if Jackson were doing counter surveillance. Shortly afterwards, JONES was driven into the parking lot by his co-defendant, Richard Anderson. JONES got out of Anderson's automobile, and got in the automobile with the undercover officer.
JONES gave $37,000 to the undercover officer, who gave JONES two kilograms of cocaine. JONES insisted that the undercover officer open the package, so that he could inspect it. JONES complained to the undercover officer that the cocaine was too powdery, and said that he (JONES) would have a hard time selling it. At that point, agents arrested JONES.
Simultaneously, agents approached Jackson, and removed him from his automobile. In Jackson's automobile, agents found the pager and the cellular telephone that JONES had used in his negotiations with the undercover officer. Richard Anderson would testify that he drove JONES to the motel knowing that JONES intended to engage in a cocaine transaction, and that, prior to coming to the motel, JONES had met Jackson had (sic] at a nearby convenience store.
Rec. Doc., No. 73.
In his plea agreement, which both petitioner Jones and his attorney Ashley signed, Jones admits that he negotiated with a person which he later learned was an undercover officer to purchase two kilograms of cocaine with the intent to resell some of it to Marcell Jackson, in accordance with a pre-arranged plan. The plea agreement states specifically in paragraph 5 that:
This plea agreement is predicated upon the fact that the defendant agrees to submit to interviews whenever and wherever requested by law enforcement authorities. The defendant also agrees to appear before any grand jury or trial jury and to testify truthfully. The defendant understands that failure to be truthful will allow the government to declare this agreement null and void; and the defendant may be prosecuted for perjury or making false statements. The defendant agrees neither to implicate anyone falsely nor to exculpate or protect anyone falsely. The defendant further agrees to immediately advise the government as to any person defendant believes to be violating the law and defendant agrees to assist the government with regard to the investigation and prosecution of criminal conduct.
Rec. Doc. No. 72.
On February 27, 1997, one day after he entered his guilty plea, United States Marshall brought petitioner Jones to the United States Attorney's office, where Special Agents Gary Sams and Scott McRory attempted to debrief him. Ashley, petitioner's counsel, was not present. When Jones inquired where he was, Special Agent Sams told him that Ashley had telephoned the Assistant United States Attorney (AUSA) handling the case to advise that he would be delayed because of court obligations. Special Agent Sams informed Jones that the AUSA told him that Ashley said the debriefing could proceed without him as he had already explained everything to the agents.
Petitioner Jones told the FBI agents that he would not speak to them without his attorney. According to the government, he also stated that he would not cooperate with them and he recanted his acceptance of the factual basis for the plea given one day earlier by stating that co-defendant Marcell Jackson was not involved in the drug deal and that he signed papers implicating Jackson only because Ashley told him he had to sign the papers as a condition of the plea agreement. He then insisted that he be returned to the custody of the U.S. Marshal.
On March 4, 1997, the government filed a motion for leave to revoke the plea agreement and to set the case against Jones for trial. The government based its motion on the grounds that Jones breached the agreement by refusing to cooperate and by recanting his statements that he intended to resell some of the cocaine he purchased to Marcell Jackson in accordance with a preexisting agreement between them.
The court held a hearing on the motion, at which petitioner and his counsel were present, on March 17, 1997. Rec. Doc. No. 89. Based upon the record, the evidence adduced at the hearing, and the law, the court concluded that the facts were essentially as stated by the government and granted the motion of the United States to revoke the plea agreement because petitioner Jones violated it. Rec. Doc. No. 87.
On March 17, 1997, the government filed a bill of information pursuant to 21 U.S.C. § 851 (a) to establish two previous felony drug convictions of Jones. Rec. Doc. No. 86. Petitioner Jones did not contest the existence of the two prior convictions.
Trial was scheduled to commence on March 24, 1997. On that date, petitioner Jones plead guilty to the two count indictment. There was no plea agreement. The AUSA specifically stated that the maximum possible penalty was life imprisonment.
A presentence investigation report (PSR) was prepared by the United State Probation Office. The report included the following information on the offense conduct:
On August 19, 1996, Al King Jones planned a meeting with Julio Sanchez. Sancehz was working in an undercover capacity for the Jefferson Parish Sheriff's Office. They planned a meeting for the purpose of Jones purchasing two kilograms of cocaine hydrochloride for the sum of $37,000.00.
An audio transcript of a video taped undercover meeting between Al King Jones, the undercover agent for the Jefferson Parish Sheriff's Office, and a cooperating individual (CI) was made on August 18, 1996, the day prior to the meeting. In that conversation, Jones indicates that would like to purchase three kilograms' of cocaine. Jones states that he has enough money to purchase five kilograms of cocaine and indicates that he would like five kilograms if enough money becomes available to him.
PSR, pp. 4.
The defendant objected to the base offense level of 32 which was calculated on cocaine amounting to between five and 15 kilograms. Defense counsel orally argued that there was no evidence available that Jones planned on purchasing more than two kilograms of cocaine and no evidence available showing that he was involved in buying more than two kilograms between 1994 and 1996. If the base offense level were 26, instead of 32, his total offense would be 23. With enhanced statutory penalties as a result of this being his third conviction, the mandatory minimum sentence would be ten years, which would be what the guidelines called for. Without the enhanced statutory penalties, at a total offense level of 23, his guidelines imprisonment range would have been 57 to 71 months. However, with the base offense level of 32 and enhanced statutory penalties, the guidelines was life imprisonment on both counts.
On June 26, 1997, petitioner Jones was sentenced to life imprisonment on counts one and two under 21 U.S.C. § 841, as it was his third felony drug conviction and the violation involved 5 kilograms or more of cocaine. He appealed from this sentence, contending that the district court erred in calculating his offense level based on a finding that his offense involved five kilograms of cocaine.
The Fifth Circuit held that the presentence report indicated that Jones told an undercover officer that he had money to purchase three kilograms of cocaine and wanted to purchase five kilograms of cocaine if money became available to him. Since the defendant failed to demonstrate that the information in the presentence report was materially untrue, inaccurate or unreliable, the appellate court affirmed his sentence, issuing the mandate on September 15, 1998. Rec. Doc. No. 137.
Petitioner Jones filed the instant § 2255 motion on June 7, 1999. Rec. Doc. No. 144. Since his motion was filed within one year of the date his conviction became final, it is timely. 28 U.S.C. § 2255.
Claims for Relief
Petitioner Jones raises four claims for relief. He contends that: (1) his counsel was constitutionally ineffective because he did not object to the Government's motion to revoke the plea agreement; (2) his counsel was constitutionally ineffective because in the appeal process, he did not argue that the revocation of the plea agreement violated his Sixth Amendment constitutional right to assistance of counsel at all critical stages of the proceeding; (3) the absence of his counsel at the debriefing violated his Sixth Amendment right to counsel at all critical stages of the proceeding; and (4) his counsel was constitutionally ineffective because he did not object at sentencing that relevant conduct could not be used to determine his statutory mandatory minimum sentence.
Sixth Amendment Right to Counsel
The Court shall address his Sixth Amendment claim first. As summarized by the court in United States v. Segler, 37 F.3d 1131 (5th Cir. 1994)
"Relief under 28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice.' United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Moreover, a defendant `may not raise an issue (constitutional or jurisdictional in nature] for the first time on collateral review without showing both `cause' for his procedural default, and `actual prejudice' resulting from the error.' United States v. Shaid, 937 F.2d 228, 232 (5th Cir. 1991) (en banc) (citations omitted), cert. denied, 112 5 Ct. 978 (1992). `If the error is not of constitutional magnitude, the defendant must show the error would result in a complete miscarriage of justice.' Id. at 232 n. 7.37 F.3d at 1133.
The Supreme Court in United States v. Frady, 456 U.S. 152, 102 S.Ct. 1584 (1982) clarified that the standard for obtaining habeas relief is "cause and actual prejudice", which is a significantly higher hurdle than the standard applicable on a direct appeal. 102 S.Ct. at 1594. To show cause, plaintiff must demonstrate that some objective factor "external to the petitioner, something that cannot fairly be attributed to him" impeded him from raising the claim. Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566 (1991). To establish prejudice, petitioner must prove "not merely that the errors . . . create a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." 102 S.Ct. at 1596.
If the petitioner is unable to establish cause and actual prejudice, then his claim may still be reviewed in a collateral proceeding only if he can demonstrate that the constitutional error "has probably resulted in the conviction of one who is actually innocent." Bousley v. United States, 523 U.S. 614, 118 S.Ct. 1604, 1611 (1998) (citation omitted). To show actual innocence, petitioner must prove that "in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him." Id. (citations omitted).
Petitioner contends that his Sixth Amendment right to counsel was violated when his attorney was not present during his debriefing. He has failed to show cause for his failure to raise the issue on direct appeal. He was certainly aware of the fact that his attorney was not present when the F.B.I. agents sought to debrief him prior to his appeal. He has not established cause for his failure to raise this issue on appeal. Nor has he shown actual innocence of the crime charged. He is procedurally defaulted from raising it in this collateral proceeding.
Even if the Court were to consider this claim, under the current Fifth Circuit jurisprudence, petitioner would be unable to establish a constitutional violation. The Court is unaware of any authority that the mere attempt by government agents to debrief a criminal defendant without his attorney who has already plead guilty and signed a plea agreement in which he agrees to be debriefed is a Sixth Amendment violation. His attorney advised the AUSA, who then informed the FBI agents attempting to debrief the petitioner in accordance with the plea agreement he signed and acknowledged the day before in open court, that they could proceed with the debriefing in counsel's absence. Petitioner could have told the agents that he would not be debriefed without his attorney. Instead, he advised that he would not be debriefed at all. He also repudiated his obligations under the plea agreement to be debriefed and recanted statements he affirmed in the plea agreement only one day before this debriefing session. Under these circumstances, the government was not retaliating against petitioner, but merely seeking to terminate the agreement that petitioner had violated.
The government did not seek to question Jones without his attorney until (1) after he plead guilty pursuant to a plea agreement in which he agreed to be debriefed and (2) after his counsel called to advise the government that it was permissible to proceed with the session. Under this factual scenario, the Court is unaware of jurisprudence rendering this a per se violation of the petitioner's Sixth Amendment right to counsel.
The Court has reviewed the Second Circuit decision of United States v. Ming He, 94 F.3d 782 (2d Cir. 1996). The Second Circuit adopted a broad rule in Ming He that "the government's standard practice in this district of conducting debriefing interviews outside the presence of counsel is inconsistent, in our view, with the fair administration of criminal justice." 94 F.3d at 785. This Court does not indicate any desire to accept or reject the reasoning of the Ming He, except to say that a per se adoption of such a rule has not occurred in the Fifth Circuit. Further, under the circumstances of the instant case, the Court finds that the government obtained the permission of defense counsel to proceed with the debriefing when defense counsel suggested it could go forward without him. Had the government sought to revoke the plea agreement only because the defendant stated he would not proceed without his attorney, the question before the Court would be entirely different. Jones, however, chose to repudiate an agreement he made only one day before the interview, a repudiation which was not conditioned on the presence of his counsel. In such circumstances, the Court does not find that the government violated his right to counsel.
Ineffective Assistance of Counsel
Petitioner raises the following claims of ineffective assistance of counsel: (1) Failure to attend his debriefing sessions; (2) Failure to object to the Government's motion to revoke his plea agreement; (3) Failure to directly appeal the revocation of the plea agreement and to raise his Sixth Amendment claim; and (4) Failure to object to use of relevant conduct to determine the statutory mandatory minimum sentence on both counts. A review of the standards for deciding such claims is necessary.
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel: a convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. If a court finds that petitioner has made an insufficient showing as to either one of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Strickland, 466 U.S. at 697; 104 S.Ct. at 2069.
Under the deficient performance prong of the Strickland test, "it is necessary to `judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'"Lockhart v. Fretwell, 506 U.S. 364, 371, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." U.S. v. Walker, 68 F.3d 931, 934 (5th Cir.), (quoting U.S. v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995), cert. denied, 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. U.S. v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994) citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance." Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.) (citations omitted), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986); Hayes v. Maggio, 699 F.2d 198, 201-02 (5th Cir. 1983).
To prove prejudice under the Strickland standard, 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." Strickland, 466 U.S. at 694, 104 S.Ct. at 2068. The Strickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
Petitioner argues that his counsel's failure to attend the debriefing session amounts to ineffective assistance of counsel. The Government suggests that because there is no per se right to counsel at debriefing sessions, defense counsel's failure to appear at the session was not constitutionally deficient.
As previously discussed, under the present circumstances, the Court does not find that there was a violation of the petitioner's Sixth Amendment right to counsel by counsel's failure to attend the debriefing session. The record indicates that he planned to attend, but was delayed in court on another matter. He telephoned the AUSA to advise that while he was delayed, they could proceed without him because he had explained everything to petitioner.
Not only did petitioner not want to proceed with the debriefing, he refused to and reneged on the agreement he made in the plea agreement to be debriefed and to implicate his co-defendant. The government used petitioner's statements against him to obtain a revocation of the plea agreement, followed by a bill of information establishing his prior convictions.
The statements made by petitioner in his debriefing session, which he attended without counsel, served to increase the potential sentence from a 10-year cap to mandatory life without parole for this 31 year-old defendant. It is unclear whether petitioner's counsel explained to petitioner the dire consequences of his failure to cooperate with the government. In light of the fact that petitioner later pleaded guilty to the indictment without a plea agreement on the day of trial, petitioner's statements in the debriefing session assumed critical importance.
Because this Court is unable to ascertain from the record the reasonableness of defense counsel's actions in allowing the government to proceed with the debriefing session without him under the circumstances of this case, an evidentiary hearing thereon is necessary. As to petitioner's argument that counsel was deficient for failing to object to the revocation of the plea agreement, counsel did object to the revocation by arguing in opposition to the motion to revoke, but, on the basis of the facts and law presented, the Court granted the motion. Rec. Doc. No. 87. There is no showing that his performance was deficient on the motion to revoke, or in not raising on appeal the court's decision to revoke the plea agreement.
Petitioner also objects to counsel's failure to object to the guideline calculation using as the quantity of drugs 5 to 15 kilograms. The PSR indicates that, as to conspiracy count, the government had recorded petitioner's conversation with a cooperating individual and a government agent agreeing to buy the two kilograms of cocaine that they had, but stating that he would like to buy five kilograms if he gets the money. Thus, the evidence used to establish the conspiracy count of the indictment, count one, was not relevant conduct, but the very conduct underlying the offense. On appeal, the Fifth Circuit held as follows:
The presentence report (PSR) indicated that Jones told an undercover officer that he had money to purchase three kilograms of cocaine and wanted to purchase five kilograms of cocaine if money became available to him. If the defendant is convicted of conspiring to purchase a controlled substance as part of a "reverse sting," the offense level is determined by "the agreed-upon quantity of the controlled substance" being purchased. U.S.S.G. § 2D1.1, commend. (n. 12).
Rec. Doc. No. 137. Thus, as to conspiracy charge, defense counsel did object to the use of relevant conduct, but the Fifth Circuit rejected this argument.
As to count two of the indictment, on which petitioner received a second life sentence, petitioner Jones was charged with knowing and intentional attempt to possess with intent to distribute "approximately two kilograms of cocaine hydrochloride." Rec. Doc. No. 1. It is unclear whether, in order to seek enhanced penalties under 21 U.S.C. § 841 (b), the government can raise the