U.S. v. Melton

Full title: UNITED STATES OF AMERICA, Plaintiff, v. JEFFREY LEN MELTON, Defendant

Court: United States District Court, D. Alaska

Date published: May 19, 2005

Case No. A02-009 CR (JKS) (D. Alaska May. 19, 2005)

Opinion

Case No. A02-009 CR (JKS).

May 19, 2005

REPORT AND RECOMMENDATION RE: DEFENDANT'S AMENDED MOTION TO VACATE, SET ASIDE OR CORRECT A SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Docket 76)

HARRY BRANSON, Magistrate Judge

Defendant moves the Court to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255 because he received ineffective assistance of counsel at trial and upon appeal. He bases his argument on four grounds: 1) defense counsel failed to investigate the facts of Defendant's armed robbery conviction in Virginia; 2) Defendant failed to introduce any mitigating circumstances at sentencing by presenting evidence of Defendant's Bipolar mental condition; 3) defense counsel failed to argue for downward departures for criminal history; and 4) defense counsel failed to argue that prior convictions had to be determined beyond a reasonable doubt.

In its Opposition at Docket 79, the government argues that: 1) Defendant entered into a plea agreement in which he waived his rights to attack his sentence collaterally and upon appeal; 2) Defendant's argument that defense counsel was ineffective due to failure to investigate the Virginia armed robbery is frivolous; 3) Defendant's § 2255 motion is merely an attempt to raise the exact issue raised and decided against him on direct appeal; 4) defense counsel was precluded from arguing for downward departures from the statutory mandatory minimum by the plea agreement; 5) Defendant waived his right to argue that all prior convictions had to be proved beyond a reasonable doubt; and 6) Booker v. United States, 125 S.Ct. 738 (2005), does not apply to cases on collateral review.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant entered into a plea agreement with the government. Docket 79 at 1, 2. The plea agreement contained several waivers. Defendant specifically waived his right to appeal his conviction. Docket 40 at 4. He additionally waived his right to appeal the sentence imposed. Id. The plea agreement noted that the Ninth Circuit "has held that the Constitution does not require prior felony convictions that increase a statutory penalty be charged in the indictment nor proved before the jury trial beyond a reasonable doubt." Id. at 4, 5. "The defendant agrees this appellate waiver encompasses any claim that his prior felony convictions must be proved beyond a reasonable doubt." Id. at 5.

Defendant also waived his right to collaterally attack his conviction and/or sentence. Id. There were two exceptions to the collateral attack waiver: 1) any challenge to Defendant's conviction or sentence alleging ineffective assistance of counsel, based on information not known to Defendant at the time of the plea agreement and which, in the exercise of reasonable diligence, could not be known by him by the time the Court imposed sentence; and 2) a challenge to the voluntariness of his guilty plea. Id.

The plea agreement contemplates that Defendant might argue that his prior convictions do not classify him as an Armed Career Offender. Docket 40 at 11. The agreement states that the government would be free to oppose any such argument. Id. The parties agreed that neither the government nor the defendant would seek any downward sentencing departures unless specifically set forth in the agreement. Docket 40 at 12.

Defendant was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g) and 924(e). Docket 52 at 1. At sentencing he argued that he was not an armed career criminal. Docket 47 at 3. Defendant noted that he suffered from Bipolar I disorder. Docket 47 at 2. He also submitted letters written by his father and wife which addressed his prior problems with Bipolar disorder, drugs and alcohol to the Court. See Docket 47, Exhibit A. Defendant also submitted a letter written by his psychiatrist which states that Defendant has been diagnosed with Bipolar disorder. See Docket 47, Exhibit B. Defendant conceded that the 1984 Fairbanks conviction qualified as a felony under the Armed Career Criminal Act ("ACCA"). Docket 58 at 26. Defendant disputed the inclusion of the remaining convictions. Id. at 28-32.

The Court found that Defendant had been convicted of three prior "violent felonies" and sentenced him to the statutory minimum of 180 months in prison pursuant to the ACCA. Docket 58 at 39.

Defendant appealed the sentence. The Ninth Circuit Court of Appeals affirmed the sentence, holding that Defendant has the "requisite three prior violent felony convictions to qualify for an enhancement under 18 U.S.C. § 924(e)." United States v. Melton, 344 F.3d 1021, 1029 (9^th Cir. 2003).

DISCUSSION

Failure of Defense Counsel to Investigate the Virginia Conviction

Defendant argues that his trial attorney failed to adequately investigate the facts of the prior robbery conviction in Virginia. Docket 76 at 4.

No witnesses were interviewed, no effort was made to contact Melton's Virginia attorney who represented Melton for the robbery charge. No attempt was made to obtain court documents from Virginia which could have demonstrated exactly to what facts Melton pled in Virginia.

Id.

This argument is irrelevant to the issue at hand. In Shepard v. United States, 125 S.Ct. 1254, 1261 (2005), the Supreme Court reaffirmed Taylor v. United States, 495 U.S. 575, 110 S.Ct. 2143 (1990). The District Court primarily based its decision in this case upon Taylor. Under Taylor, the reviewing court looks "only to the fact of conviction and the 'statutory definitions of the prior offenses, . . . not to the particular facts underlying those convictions.'" Melton, 344 F.3d at 1024. Investigating the "particular facts" of the Virginia robbery conviction would serve no purpose under the Taylor analysis.

Defense counsel's conduct does not meet the standard articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In order to establish a claim of ineffective assistance of counsel, a petitioner must show that "counsel's representation fell below an objective standard of reasonableness." Id., 466 U.S. at 688, 104 S.Ct. at 2064. If the petitioner succeeds in making this showing, then the petitioner must establish that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id., 466 U.S. at 694, 104 S.Ct. at 2068. Defendant has failed to establish that his trial attorney's performance fell below an objective standard of reasonableness.

Failure to Present Evidence of Defendant's Bipolar Condition

Defendant contends that his counsel failed to present mitigating evidence at sentencing that Defendant suffers from Bipolar disorder. Docket 76 at 6.

However, the record shows that his attorney did present evidence at sentencing that Defendant suffers from Bipolar disorder. Counsel noted in the sentencing memorandum that Defendant suffered from Bipolar I disorder. Docket 47 at 2. He also submitted letters written by Defendant's father and wife which addressed his prior problems with Bipolar disorder, drugs and alcohol to the Court. See Docket 47, Exhibit A. Finally, counsel submitted a letter written by his psychiatrist which states that Defendant has been diagnosed with Bipolar disorder.See Docket 47, Exhibit B.

Failure to Argue for Downward Departure

Defendant contends that his attorney failed to argue that a downward departure was warranted during sentencing due to the defendant's prior criminal history. Docket 76 at 6, 7.

Defense counsel was barred from arguing for a downward departure by the plain words of the plea agreement which Defendant entered into. "The parties agree that neither the United States nor the defendant will seek any upward or downward sentencing departures unless specifically set forth in this plea agreement." Docket 40 at 12.

The Ninth Circuit Court of Appeals has recognized that plea agreements are contractual in nature and are measured by contract law standards. United States v. Jeronimo, 398 F.3d 1149, 1153 (9^th Cir. 2005) (quoting United States v. Clark, 218 F.3d 1092, 1095 (9^th Cir. 2000)). "If the terms of the plea agreement on their face have a clear and unambiguous meaning, then this court will not look to extrinsic evidence to determine their meaning." Clark, 218 F.3d at 1095 (citing United States v. Ajugwo, 82 F.3d 925, 928 (9th Cir. 1996)). The plea agreement clearly states that counsel could not argue for a downward departure at sentencing. Defense counsel did not demonstrate ineffective assistance of counsel by failing to argue for a downward departure.

Failure to Argue That Prior Convictions Must be Proved Beyond a Reasonable Doubt

Defendant contends that counsel failed to argue that prior convictions must be proved beyond a reasonable doubt.

Counsel failed to argue that the court's decision in In re Winship, 397 U.S. 358 (1970), required a beyond a reasonable doubt standard for a criminal conviction, and that the court reaffirmed the In re Winship decision in Apprendi v. N.J., 530 U.S. 466, 490 (2000) which was decided two (2) years prior to Melton's sentencing and which held that the essential elements of a crime required a finding of "every fact" necessary to constitute the crime charged beyond a reasonable doubt to meet Sixth Amendment requirements.

Docket 76 at 9. Defendant also cites United States v. Booker, ___ U.S. ___, 125 S.Ct. 738 (2005), and argues that it applies retroactively to his case. Docket 76 at 10.

It must be first noted that Defendant expressly waived the right to argue this issue in the plea agreement. See Docket 40 at 5. Further, the Ninth Circuit has held that the ACCA is not unconstitutional because the Constitution does not require prior convictions which increase a statutory penalty to be proved beyond a reasonable doubt. United States v. Keesee, 358 F.3d 1217, 1220 (9^th Cir. 2004) (quoting United States v. Summers, 268 F.3d 683 (9^th Cir. 2001)).

Defendant's argument that Booker applies retroactively to his case is unsound. Every circuit court that has considered whetherBooker applies retroactively to cases on collateral review has held that it does not. See, e.g., United States v. Green, 2005 WL 237204, at *1 (2d Cir.Feb. 2, 2005); United States v. Humphress, 2005 WL 433191, at *7 (6^th Cir.Feb 25, 2005);McReynolds v. United States, 397 F.3d 479, 481 (7^th Cir.Feb. 2, 2005); United States v. Leonard, 2005 WL 139183, at *1 (10^th Cir.Jan. 24, 2005). The Supreme Court expressly stated in Booker that it is to apply "to all cases on direct review" with no reference to cases on collateral review. 125 S.Ct. at 769. This Court agrees with the authority cited supra that Booker does not apply retroactively to cases on collateral review.

Defendant argues that even if aspects of the Booker decision are not retroactive on collateral review, he should still prevail under In re Winship, 397 U.S. 358, 368 (1970) (holding that the burden of proof in juvenile cases must be "beyond a reasonable doubt"). The Supreme Court held that the burden of proof applied in Winship must be applied retroactively. Ivan V. v. City of New York, 407 U.S. 203 (1972).

The same argument has been rejected by the Third Circuit Court of Appeals. See In re Olopade, 403 F.3d 159, 2005 WL 820550 (3^rd Cir.Apr. 11, 2005); In re Turner, 267 F.3d 225, 230-31 (3^rd Cir. 2001). Citing Tyler v. Cain, 533 U.S. 656, 121 S.Ct. 2478 (2001), the Olopade court noted that "a new rule is not made retroactive to cases on collateral review unless the Supreme Court holds it to be retroactive." Id. at *2. The Supreme Court has not explicitly held that Booker is applicable to cases on collateral review. The most that Defendant can claim with his In re Winship argument is that the Supreme Court should make Booker retroactive to cases on collateral review, not that existing precedents, such as Ivan V., dictate that result. Olopade, * 3, n. 5 (citing In re Turner, 267 F.3d at 231).

RECOMMENDATION

Based upon the foregoing, IT IS HEREBY RECOMMENDED that Defendant's Amended Motion to Vacate, Set Aside or Correct a Sentence Pursuant to 28 U.S.C. § 2255 be DENIED.