Opinion
CASE NO. 8:02CR353.
January 28, 2008
MEMORANDUM AND ORDER
This matter is before the Court on the Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Filing No. 619), filed by the defendant, Roy C. Straughan. Rule 4(b) of the Rules Governing Section 2255 Proceedings for the United States District Courts requires initial review of a § 2255 motion, and describes the initial review process:
The judge who receives the motion must promptly examine it. If it plainly appears from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion and direct the clerk to notify the moving party. If the motion is not dismissed, the judge must order the United States attorney to file an answer, motion, or other response within a fixed time, or to take other action the judge may order.
FACTUAL BACKGROUND
Straughan was found guilty of a one-count Indictment charging him with conspiracy to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of cocaine base. (Filing No. 337.) The Eighth Circuit Court of Appeals affirmed Straughan's conviction and sentence. (Filing No. 556.)In his § 2255 motion, Straughan raises the following arguments: 1) although captioned as an argument relating to government misconduct infringing on his right to a fair trial, Straughan fashions an argument regarding the alleged ineffective assistance of defense counsel to ask for a jury instruction requiring the jury to determine the type of cocaine allegedly involved in the offense; 2) while the jury determined that Straughan was responsible for over 50 grams of cocaine base, he was sentenced at an offense level of 38 based on the judge's finding of 3 kilograms of cocaine; and 3) ineffective assistance of counsel for failing to file a petition for writ of certiorari.
DISCUSSION
INEFFECTIVE ASSISTANCE OF COUNSEL
In order to establish ineffective assistance of counsel, Straughan must satisfy both prongs of the test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). The performance prong requires a showing that counsel performed outside the wide range of reasonable professional assistance and made errors so serious that counsel failed to function as the kind of counsel guaranteed by the Sixth Amendment. Id. at 687-89. The prejudice prong requires a movant to demonstrate that seriously deficient performance of counsel prejudiced the defense. Id. at 687.
Drug Amount
Petition for Writ of Certiorari
United States v. Johnston,353 F.3d 617624-25th
Therefore, the United States shall answer this claim, and the Defendant will have the opportunity to respond.
DRUG AMOUNT DETERMINED AT SENTENCING
Straughan alleges that the Court improperly determined a drug amount at sentencing higher than the amount found by the jury. As stated above, a Court may determine a higher drug amount at sentencing as long as that amount did not exceed the statutory amount involved in the count of conviction. The Court may do so by a preponderance of the evidence. United States v. Johnston, 353 F.3d 617, 624-25 (8th Cir. 2003). This claim is denied.
IT IS ORDERED:
1. The Court has completed the initial review of the Defendant's Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody ("§ 2255 motion") (Filing No. 619);
2. Upon initial review, the Court finds that summary dismissal of the Defendant's § 2255 motion is not required;
3. On or before February 28, 2008, the United States shall file an Answer to the claim alleging that counsel was ineffective for not filing a petition for writ of certiorari or, alternatively, following the appropriate procedures and support its Answer with a brief;
4. On or before March 28, 2008, the Defendant may file a responsive brief; and
5. The Clerk is directed to mail a copy of this Memorandum and Order to the Defendant at his last known address.