Opinion
Case No. 99-40012-02-SAC
November 22, 2002.
MEMORANDUM AND ORDER
The case comes before the court on the defendant Cheryl Walters's pro se motion pursuant to 28 U.S.C. § 2255 challenging her conviction and sentence. (Dk. 269). The government has filed a response in opposition, (Dk. 278), and the defendant has filed a reply, (Dk. 282). The defendant also has filed a motion for leave to file in forma pauperis her § 2255 motion. (Dk. 270). There is no filing fee associated with filing a § 2255 motion, and such proceedings are not civil actions for purposes of 28 U.S.C. § 1915. United States v. Brazier, No. 97-3186-SAC, 1997 WL 833293 at *3 (D.Kan. Dec. 11, 1997) (citing in part Rules Governing Section 2255 Proceedings for the United States Courts, Rule 3, Advisory Committee 1976 Adoption and United States v. Simmonds, 111 F.3d 737, 741-44 (10th Cir. 1997)), aff'd, 149 F.3d 1191 (10th Cir. 1998) (Table). Thus, the court denies as moot the defendant's motion for leave to file in forma pauperis.
PROCEDURAL HISTORY
The defendant Cheryl Walters, and her husband, Jay Dee Walters, were the only named defendants in a five-count superseding indictment charging a conspiracy to manufacture methamphetamine, harboring a federal fugitive, money laundering, and criminal forfeiture of property. The government later dismissed the money laundering counts, and the case went to trial in December of 1999 on the conspiracy and harboring counts after the court bifurcated the criminal forfeiture count. The jury returned a guilty verdict on Jay Dee Walters on the drug conspiracy count, but it was unable to reach a unanimous verdict as to Cheryl Walters on either count. The court permitted the parties to contact the jurors subject to their strict conformance with D.Kan. Rule 47.1. (Dk. 183). Both parties represent in their § 2255 filings that counsel learned during their interviews with the jurors that only one of the eleven jurors was opposed to finding Cheryl Walters guilty of the conspiracy count.
Subsequently, the government dismissed count two against Jay Dee Walters, and the government and Jay Dee reached an agreement on the forfeiture count which the court accepted on January 13, 2000.
On January 28, 2000, the court revoked Cheryl Walters's bond, as she violated her conditions in contacting Janet Fisher, a witness in this case, without prior approval from pretrial services. On February 9, 2000, Cheryl Walters pleaded guilty to count one that charged her with conspiracy to manufacture and distribute a mixture containing a detectable amount of methamphetamine. The plea agreement provided that in exchange for her plea, the government would dismiss count two (harboring a fugitive) and count five (criminal forfeiture) of the superseding indictment, would dismiss the original indictment and would bring no further criminal charges resulting from activities forming the basis of these indictments. The parties also agreed to the following relevant terms on sentencing:
a. The defendant acknowledges and understands that all information in the possession of the government concerning the defendant's involvement in the offense as well as the nature, scope and extent of the defendant's cooperation will be made known to the Court for the purpose of imposing an appropriate sentence.
b. The Government will recommend that defendant receive a three-level adjustment for acceptance of responsibility; however, the government's obligation to recommend acceptance of responsibility pursuant to this plea agreement is contingent upon the defendant's continuing manifestation of acceptance of responsibility. . . .
c. The government agrees to recommend that the defendant be sentenced at the low end of the appropriately calculated guideline range.
d. The government agrees that, if the United States Probation Office determines that the defendant is eligible for application of the Safety Valve provision (contained in 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2), the government will not oppose application of the Safety Valve provision.
e. The government agrees to not advocate that the defendant receive a two-level enhancement for obstruction, pursuant to U.S.S.G. § 3C1.1, based upon the defendant's conduct in providing the government with an exculpatory letter and misrepresenting the circumstances surrounding the creation of the letter.
(Dk. 208, pp. 2-3). The plea agreement further states that the defendant understands the government's recommendations do not bind the court and that the defendant has no right to withdraw her guilty plea if the court does not accept the government's recommendation.
The Presentence Report ("PSR") recommended a base offense level of 32 after attributing the defendant with 214.78 grams of actual methamphetamine for her purchases of pseudoephedrine. The PSR recommended a two-level obstruction of justice enhancement for the defendant's involvement in manufacturing exculpatory letters. After crediting her with three levels for acceptance of responsibility, the PSR calculated a total offense level of 31. The PSR arrived at a criminal history category of two based on the defendant's prior drug conviction and based on the finding that she committed the instant offense while on probation on a state court matter. The PSR determined that the applicable sentencing guideline range was 121 to 151 months. Because of her criminal history score, the PSR determined the defendant was ineligible for the safety valve and was subject to the mandatory minimum term of ten years.
The sentencing court sustained the defendant's objection to the PSR's finding on the commencement date of the conspiracy. As a result, the court found that the defendant did not commit the instant offense while on probation and that the defendant's criminal history category was one, not two. The sentencing court also found that the defendant had abandoned her objection to the PSR overestimating her purchases of pseudoephedrine, as this would require the court to find that the defendant had been untruthful in her prior statement to the officers and would result in the defendant being ineligible for the safety valve. The defendant also conceded that a ruling on her objection to the number of weeks would have no impact on her sentence. The sentencing court, however, overruled the defendant's objection to the theoretical yield calculations as untimely and not supported by the evidence of record. Finally, the sentencing court found that the defendant had proved she met the five requirements for the safety valve. Therefore, after a two-level reduction for the safety valve and a criminal history category of one, the defendant's sentencing guideline range was 87 to 108 months, and the court sentenced the defendant to 87 months of imprisonment. The court subsequently sentenced the defendant's husband to 121 months of imprisonment. The defendant took no direct appeal from her conviction and sentence but filed her § 2255 motion within the one-year limitation period.
AGREED STATEMENT OF RELEVANT FACTS
In their respective memoranda, the parties refer to many of the same facts which the court will summarize as a brief factual background. On September 16, 1998, narcotics investigators discovered an operational methamphetamine laboratory at the home of Billy Hill and Rosan Robison in Osage County, Kansas. The investigation led officers to the property of Calvin Neu where a portable methamphetamine laboratory and other personal property belonging to Hill and Robison were found on September 22, 1998. After Neu was arrested, he agreed to cooperate with authorities. On October 9, 1998, Neu was found murdered, and evidence at the scene pointed to Billy Hill. Federal drug charges were filed against Billy Hill on October 26, 1998, and a warrant was issued for his arrest. Until January 10, 1999, when he was arrested, Hill remained a fugitive on state and federal charges.
During their investigation of Hill and one of his known close associates, David Morris, officers examined Morris's telephone records and found repeated calls to telephones subscribed to Cheryl and Jay Dee Walters. Special Agent Jeff Hupp made several attempts at contacting the Walters at their residence and eventually arranged for a meeting on December 17, 1998, at a retail store in Topeka. At this meeting, Cheryl and Jay Dee denied ever meeting Billy Hill personally.
On January 7, 1999, officers of the Atchison Police Department arrested Gary Wamsley for driving with a suspended driver's license and found narcotics on him and in his vehicle. Wamsley told officers that he had met Billy Hill while he was staying at the Walters's residence and that Hill was now staying at Wamsley's farm and cooking methamphetamine there. Officers went to Wamsley's farm where a stand-off ensued. Robison surrendered on January 9, 1999, and after officers used chemical munitions, Hill surrendered on January 10, 1999. Officers then searched the property and found a clandestine methamphetamine laboratory and enough ingredients for manufacturing methamphetamine to produce 760 grams of actual methamphetamine. A chemist with the Kansas Bureau of Investigation ("KBI") described the laboratory as quite sophisticated and one of the "best setups" he had investigated.
The grand jury indicted the Walters on February 10, 1999, for conspiring with Hill and others to manufacture and distribute in excess of one kilogram of methamphetamine. Later that day, Jay Dee and Cheryl Walters with their attorney went to the KBI and gave audio-taped interviews. Both effectively admitted their actions charged in the indictment, but they also claimed to have acted only out of fear of and intimidation from Hill and Robison.
Jay Dee Walters told agents that Morris had brought Hill and Robison to the Walters's residence and that he expected them to stay only a couple of days instead of several months. Jay Dee said that his wife was afraid of Hill and Robison and that he tried to compel Morris to take them elsewhere but that Morris said Hill had threatened to kill them. Hill also told the Walters stories about shooting people and advised them he could hire people to get them and their children if they divulged his whereabouts. Jay Dee also said that Hill always carried firearms with him. Jay Dee further divulged that he did grocery shopping for Hill and Robison and purchased them various ingredients which they used to manufacture methamphetamine. On every shopping trip, Jay Dee and his wife were to buy six boxes of pseudoephedrine pills in addition to the other items. Jay Dee told Agent Huff that he and his wife had written letters about being threatened by Hill and Robison and that he had given his letter to his mother and his wife's letter went to Glenda Logan.
Cheryl gave a similar statement to the agents. She spoke of trying to convince Morris to move Hill and Robison somewhere else and that Morris told her that Hill would "get rid of them and would take over the farm." Walters told officers that she had written a letter on October 1, 1998, in which she disclosed that Hill and Robison were fugitives living with them against her will. Walters said she gave this letter to Glenda Logan on the condition that Logan was to open the letter if anything happened to her or her husband. Cheryl admitted seeing Hill and Robison cooking methamphetamine in her house and going shopping for them. Cheryl said that Rose gave her shopping lists that included various items including "antihistamine decongestant" pills. Cheryl told agents that she went shopping every day for these items and that Hill and Robison had called Cheryl's employer and gave her resignation so that she was available to do their shopping.
Counsel for the Walters delivered the letters mentioned in the defendants' interviews to the KBI on February 11, 1999. Jay Dee's letter was dated October 20, 1998, and Cheryl's letter was dated October 1, 1998. In May of 1999, Glenda Logan told Agent Hupp that Jay Dee and Cheryl had written those letters in her home on February 10, 1999, after their interview with Agent Hupp. Jay Dee Walters submitted to a polygraph examination about his writing of the letter. The polygraph examiner opined that Jay Dee was being deceptive when he answered those questions.
ISSUES
In her initial brief filed in support of her motion, the defendant argues her counsel was ineffective in recommending she plead guilty after the mistrial and in not challenging the indictment based on her defense of duress. The defendant also contends that the sentencing court erred in imposing an obstruction of justice enhancement and that the government breached the plea agreement in regards to this enhancement. The defendant next argues the sentencing court erred in its drug quantity determination. Finally, the defendant maintains the court erred in accepting the forfeiture agreement between Jay Dee Walters and her husband. The government filed its response addressing each of those contentions.
The defendant then filed a reply brief adding a number of contentions. First, the defendant denies engaging in "any conduct at all in the instant offense" and accuses the government of investigating and prosecuting her only to obtain her husband's cooperation against others. Second, the government committed a Brady violation with respect to Glenda Logan in not disclosing that she had agreed to lie for the government to avoid imprisonment for her involvement with Billy Hill. Third, defense counsel was ineffective in not filing a notice of appeal and in not seeking a downward adjustment for minimal or minor participant. Fourth, her plea was involuntary because the government breached the plea agreement and defense counsel was ineffective in not challenging the voluntariness of her plea. Fifth, the defendant is entitled to a downward departure based on post-conviction rehabilitation and family responsibilities.
EVIDENTIARY HEARING
The court finds no request for an evidentiary hearing in the defendant's motion. Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. No hearing is required where the factual matters raised by defendant's § 2255 petition may be resolved on the record before the court. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). To be entitled to an evidentiary hearing, the defendant must allege facts which if proven would entitle her to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U .S. 1235 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id. The court finds that a hearing on the defendant's motion is not necessary. The files and records in this case fully address the issues raised in the defendant's motion and conclusively show that she is not entitled to the relief she seeks. The court also finds that the defendant has not provided a sufficient factual basis for her claims as to require a hearing.
APPOINTMENT OF COUNSEL
Even though she has not requested an evidentiary hearing, the defendant asks the court to appoint her counsel to assist in these proceedings pursuant to 18 U.S.C. § 3006A. (Dk. 269). The defendant possesses no right to counsel in the prosecution of her § 2255 motion. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (no right to appointed counsel to pursue collateral attack on conviction). Only when an evidentiary hearing is required is a defendant entitled to counsel. Swazo v. Wyoming Dep't of Corrections State Penitentiary Warden, 23 F.3d 332, 333 (10th Cir. 1994). Rule 8(c) of the Rules Governing § 2255 Proceedings unequivocally states, "If an evidentiary hearing is required, the judge shall appoint counsel for a movant who qualifies for the appointment of counsel under 18 U.S.C. § 3006A(g)." Thus, appointment is mandatory under Rule 8(c) only when an evidentiary hearing is required. As a hearing is unnecessary, the court declines the defendant's request for appointment of counsel.
GENERAL § 2255 STANDARDS
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996); see also United States v. Frady, 456 U.S. 152, 167-68 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996) (citations omitted), cert. denied, 519 U.S. 1134 (1997). A colorable claim of factual innocence may be sufficient to establish a fundamental miscarriage of justice. Moreover, a claim that an indictment "fails to show jurisdiction in the court or to charge an offense . . . shall be noticed by the court at any time during the pendency of the proceedings." Fed.R.Crim.P. 12(b)(2). Such a claim may be raised for the first time in a § 2255 proceeding. Marteney v. United States, 216 F.2d 760, 762 (10th Cir. 1954); see also United States v. Welch, 849 F. Supp. 5, 7 (D.Me. 1994).
INEFFECTIVE ASSISTANCE OF COUNSEL
"An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). "The right to counsel also extends to a defendant's first appeal as of right." Baker, 929 F.2d at 1498 (citing Douglas v. California, 372 U.S. 353 (1963)).
To establish a claim for ineffective assistance of counsel, a defendant must show (1) that her counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that her counsel's errors prejudiced her, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) ("We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.") To show deficient performance, the defendant must show that her counsel's performance was "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997). To show prejudice, the defendant must establish that, but for counsel's unprofessional errors, there was a reasonable probability that the outcome of her conviction and/or sentencing would have been different. Id. at 1245; see Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:
There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). A court can jump to the prejudice prong without first determining whether counsel's performance was deficient:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.Strickland, 466 U.S. at 697.
Plea of Guilty
The defendant argues her counsel was ineffective in advising her to enter a plea of guilty after the mistrial when counsel "knew that she was not guilty . . . of the offense." (Dk. 282, p. 6) The defendant does not challenge the counsel's advise as erroneous in discussing the likelihood of acquittal in a second trial or the possible sentences if she pleaded guilty or was convicted in the second trial. Rather, the defendant simply maintains her counsel was wrong in telling her to plead guilty when she was innocent by reason of duress.
As the Tenth Circuit has observed, the Supreme Court in Hill v. Lockhart set forth the standard for deciding when a guilty plea is invalid because of ineffective assistance of counsel:
The Court held that a prisoner challenging a guilty plea because of ineffective assistance satisfies the prejudice inquiry by showing that the constitutionally ineffective performance "affected the outcome of the plea process. In other words . . . that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill, 474 U.S. at 59 (emphasis added). However, the Court went on to note that courts applying this standard will often review the strength of the prosecutor's case as the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial. See id. at 59-60.Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140 (2002). From the law established in Hill, the Tenth Circuit has fashioned the following rules of procedure:
This court has therefore held that a petitioner's "mere allegation" that he would have insisted on trial but for his counsel's errors, although necessary, is ultimately insufficient to entitle him to relief. See United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Rather, we look to the factual circumstances surrounding the plea to determine whether the petitioner would have proceeded to trial. See id,; United States v. Wright, 43 F.3d at 491, 498 (10th Cir. 1994); Lasiter v. Thomas, 89 F.3d 699, 703-04 (10th Cir. 1996).Miller, 262 F.3d at 1072. Besides this prejudice prong, the defendant must prove also that the advice of her counsel "was not within the range of competence demanded of attorneys in criminal cases." United States v. Carr, 80 F.3d 413, 416 (10th Cir. 1996) (citation omitted). Specifically, "a plea may be involuntary if the attorney materially misinforms the defendant of the consequences of the plea." Id. at 418 (quotation omitted).
The defendant has not come forth with any argument or proof showing her counsel's advice to accept the plea bargain fell below the objective standard of reasonableness. While the jury was hung after the first trial, the vote was eleven to one in favor of the defendant's conviction. By going to trial a second time, the defendant was facing an additional count of harboring a federal fugitive, a two-level enhancement for obstruction and a mandatory minimum sentence of twelve years, and she was throwing away any reasonable chance for acceptance of responsibility. The plea agreement gave the defendant a three-level reduction for acceptance of responsibility, an improved chance at receiving the safety valve and avoiding the obstruction of justice enhancement, a dismissal of all remaining charges, and a sentence at the low end of the applicable guideline range. The plea agreement had the potential for a seven-level swing in the defendant's total offense level which could mean a sentence sixty-five months shorter than the possible term that could be imposed if she went to trial.
As shown in the first trial, the government's evidence against Cheryl Walters was strong. Her own statement made to the KBI established her knowledge of Hill's manufacturing activities and her role in acquiring ingredients for Hill's use in making methamphetamine. Her statement was corroborated by her husband's statement. In the first trial, the defendant's only defense was that she was acting under coercion and duress in harboring Hill and purchasing his requested items. The government's evidence disproved this defense in particular by the fact that the defendant had reasonable opportunities to escape or otherwise frustrate Hill's threat to her and her family. The defendant had numerous chances to escape with her family when Hill was gone from their property for extended periods. The defendant had contacts with law enforcement during this same period, and she chose to mislead them about Hill's whereabouts instead of seeking their help. Considering the strength of the government's evidence, the results of the first jury trial, the likely sentence after a jury trial, and the likely sentence after the plea bargain, the defense counsel's advice plainly qualified as reasonable professional assistance. Even assuming defense counsel's performance was deficient in giving this advise, the court rejects as implausible, incredible and unlikely the defendant's allegation that she would risk a substantially longer sentence, particularly when in the first trial the jury nearly convicted her of the conspiracy charge and did convict her husband who was relying on the same duress defense. The defendant is unable to prove either prong to her ineffective assistance of counsel claim.
Based on the written and signed plea agreement, the petition to enter a guilty plea, the court's prior order accepting the defendant's guilty plea as freely and voluntarily given, and the court's recollection of the change of plea hearing, the court finds the defendant's conclusory assertions of an involuntary plea to be wholly incredible. Any allegations of being pressured by her counsel into making an involuntary plea are simply insufficient to overcome the defendant's plain statements in the plea agreement and in open court and the court's acceptance of the same as freely and voluntarily made. The Supreme Court has noted:
For the representations of the defendant, . . . as well as any findings made by the judge accepting the plea, constitute a formidable barrier in any subsequent collateral proceedings. Solemn declarations in open court carry a strong presumption of verity. The subsequent presentation of conclusory allegations unsupported by specifics is subject to summary dismiss, as are contentions that in the face of the record are wholly incredible.
Blackledge v. Allison, 431 U.S. 63, 73-74 (1977). The Supreme Court also observed that as plea bargains become more routine contentions of involuntariness "will entitle a petitioner to an evidentiary hearing only in the most extraordinary circumstances." 431 U.S. at 80 n. 19; see also Lasiter v. Thomas, 89 F.3d 699, 702-03 (10th Cir.), cert. denied, 519 U.S. 998 (1996). Thus, the record in this case squarely contradicts the defendant's unsupported allegations of involuntariness, and the court finds no basis for holding an evidentiary hearing on this issue. The defendant is bound by her solemn declarations in open court.
Challenging the Indictment
The defendant contends her counsel was ineffective in not objecting to the indictment based on the facts surrounding her duress defense. The record does not support this argument but rather shows that counsel aggressively defended this case by filing numerous pretrial motions and by preparing and presenting a duress defense at the first trial. After the defendant entered her guilty plea, counsel had no further legal or factual basis for challenging the indictment. The court finds no merit to the defendant's argument.
OBSTRUCTION OF JUSTICE ENHANCEMENT — BREACH OF PLEA AGREEMENT
The defendant argues that the government breached the plea agreement with regard to this enhancement and that the sentencing court erred in imposing this enhancement. As quoted previously in this order, the terms of the plea agreement provided that the government would "not advocate that the defendant receive a two-level enhancement for obstruction, pursuant to U.S.S.G. § 3C1.1, based upon the defendant's conduct in providing the government with an exculpatory letter and misrepresenting the circumstances surrounding the creation of the letter." (Dk. 208, p. 3). The defendant does not allege nor does the record show that the government advocated this enhancement at sentencing. In her reply brief, the defendant concedes there was no actual advocacy, but she still complains about the government submitting to the probation office the information on which this enhancement was based. The defendant, however, has no basis for contending the government breached the plea agreement by providing this information. As expressly stated in the plea agreement, the defendant understood "that all information in the possession of the government concerning the defendant's involvement in the offense as well as the nature, scope and extent of the defendant's cooperation will be made known to the Court for the purpose of imposing an appropriate sentence." (Dk. 208, p. 2). The defendant's allegation that the government breached the plea agreement in this respect has no basis in fact or law.
As for her argument that the sentencing court should not have assessed this enhancement, the defendant does not address her failure to object at sentencing. The defendant makes no attempt to show her counsel was ineffective in deciding not to advance this objection. Indeed, the defendant simply insists an enhancement is not warranted for an unsuccessful attempt at frustrating an investigation by a misstatement and her submission of the letter concerning her fear of Hill and Robison does not amount to obstruction.
In manufacturing an exculpatory letter, submitting it to investigating officers following the grand jury's indictment, and representing it as written during the relevant time period of October of 1998, the defendant produced a false document during an official investigation. U.S.S.G. §. 3C1.1, comment (n. 4(c)). The date written on that letter was materially false in "that, if believed, would tend to influence or affect the" officers' investigation into the defendant's duress defense. For that matter, if the jury believed the defendant wrote the letter in October of 1998 while in fear of her life and did not write the letter later in an effort to exculpate herself, then the jury could have acquitted the defendant on this defense of duress. The court did not err in enhancing the defendant's offense level by two levels for her attempt to obstruct justice during the investigation and prosecution of this case.
DRUG QUANTITY FINDINGS
The defendant contends the court erred in determining the amount of pseudoephedrine attributable to her. The defendant concedes she purchased six boxes on each shopping trip, but she disputes making the four shopping trips per week used in the PSR and admits to only one shopping trip per week. As the PSR noted, the defendant had told officers she went shopping for Hill and Robison on a daily basis and the defendant's husband told officers they purchased six boxes of pseudoephedrine on each shopping trip. Relying on these statements from the defendant and her husband, the PSR conservatively estimated four shopping trips per week and six boxes of pseudoephedrine per trip.
The defendant's counsel initially objected that the PSR overestimated her purchases of pseudoephedrine. At the time of sentencing, the court found the defendant to have abandoned this objection as it could not be sustained without the court also finding that the defendant had been untruthful in her prior statement to officers and also concluding that the defendant would be ineligible for the safety valve. The defendant did not appeal this issue to the Tenth Circuit.
As stated before, the defendant's failure to present an issue on direct appeal bars her from raising the issue in a § 2255 motion, unless she can show cause for her procedural default and actual prejudice resulting from the alleged errors or can show that a fundamental miscarriage of justice from this claim going unaddressed. The defendant fails to supply the court with any "cause" for his procedural default or grounds for finding a fundamental miscarriage of justice, so the court is compelled to enforce this procedural bar and deny the defendant's claim. Her counsel's decisions to abandon this objection at sentencing and not to appeal this issue fall within the realm of reasonable professional judgment considering that the defendant's own statement contradicted the objection and any pursuit of the objection would jeopardize the defendant's eligibility for safety valve.
In the alternative, even if the claim's merits were considered, the court would likely deny relief. The PSR calculated drug quantities based largely on statements made by the defendant and her husband. Those calculations and estimates are conservative in that they use only four shopping trips a week rather than the daily rate appearing in the defendant's statement. Finally, the amount of methamphetamine attributed to the defendant was generally corroborated by Hill's statement that he cooked methamphetamine six times or more on the Walters's property. The determination of drug quantities may be an approximation and the government's burden is only the preponderance of the evidence. United States v. Becker, 230 F.3d 1224, 1234-35 (10th Cir. 2000), cert. denied, 532 U.S. 1000 (2001). The drug quantity estimates here have a factual basis sustained by a preponderance of evidence that bears a sufficient indicia of reliability. They are not the result of unsubstantiated guesswork. The defendant's argument is without merit.
FORFEITURE AGREEMENT WITH JAY DEE WALTERS
The defendant's husband, Jay Dee Walters, entered into a forfeiture agreement with the government whereby he has forfeited his interest in farmland surrounding his home. The defendant asserts an interest in the farmland and seeks relief through her § 2255 motion. The government responds that the preliminary forfeiture proceedings have not been completed, because an accurate property description has not been obtained. The government represents that: "Once an accurate description of the property exists, the government will give petitioner notice of the forfeiture proceedings. At that point, she can assert a claim to said real property, but until then, her claim to the property is not ripe and prohibited under the Federal Rules of Criminal Procedure." (Dk. 278, p. 20). In her reply brief, the defendant essentially concedes the government's position. The court concurs with the parties that the defendant's challenge to the forfeiture agreement is premature and the defendant's § 2255 motion is not the proper vehicle for asserting and litigating her claimed interest in property that is the subject of a forfeiture agreement. The court denies any relief on this issue.
OTHER ARGUMENTS FIRST RAISED IN REPLY BRIEF
Just like other proceedings, a court in a § 2255 proceeding does not consider arguments presented for the first time in a reply brief. See United States v. Mora, 293 F.3d 1213, 1216 (10th Cir. 2002) (citing Codner v. United States, 17 F.3d 1331, 1332 n. 2 (10th Cir. 1994)), cert. denied, 123 S.Ct. 388 (U.S. Oct. 15, 2002). The defendant advances five contentions that she first presented in her reply brief. Having failed to raise them in her initial motion and memorandum, the defendant is barred from raising them in her reply. See United States v. Brazier, No. 97-3186-SAC, 1997 WL 833293, at *1 n. 3 (D.Kan. Dec. 11, 1997) (denying new arguments presented by section 2255 movant in reply brief), aff'd, 149 F.3d 1191 (10th Cir. June 9, 1998); Wagher v. Guy's Foods, Inc., 765 F. Supp. 667, 671 (D.Kan. 1991) ("In pursuit of fairness and proper notice, this court's practice is to deny or exclude summarily all arguments and issues first raised in reply briefs.").
Even if the court were to consider the merits of these new contentions, there is no reason to believe the defendant would be entitled to any relief on them. The defendant's denial of guilt is contradicted by her recorded statements to officers and by her guilty plea that she freely and voluntarily made. The defendant presents nothing but her conclusory allegation that the government committed a Brady violation in allegedly not disclosing Glenda Logan's motives for testifying against the defendant. The defendant has not shown that there is a reasonable probability that but for her counsel's performance she would have timely appealed her conviction and/or sentence. Nor was her counsel ineffective in not advocating a minor or minimal role reduction. The defendant fails to identify evidence sufficient to meet her burden of proof on this issue, that is, to show she was less culpable relative to other participants in the given offense. Indeed, the evidence establishes her role in repeatedly purchasing pseudoephedrine and other precursors was indispensable to Hill's ability to manufacture methamphetamine while hiding out at the defendant's residence.
The court previously discussed the voluntariness of the defendant's plea and finds no basis for concluding defense counsel was ineffective in not challenging the voluntariness. Finally, the defendant's arguments for downward departure based on post-conviction rehabilitation, diminished capacity, duress, and family circumstances were not advanced at her sentencing, and the defendant has not shown that her counsel was ineffective in omitting these requests or that there is any reasonable probability her sentence would have been different if they had been argued.
IT IS THEREFORE ORDERED that the defendant Cheryl Walters's pro se motion pursuant to 28 U.S.C. § 2255 challenging her conviction and sentence (Dk. 269) is denied;
IT IS FURTHER ORDERED that the defendant's motion for leave to file in forma pauperis her § 2255 motion (Dk. 270) is denied as moot.