Opinion
Criminal No. 1:06-01254-MBS
06-20-2013
Kelvin Bernard Badger, Movant, v. United States of America, Respondent.
ORDER AND OPINION
This matter is before the court pursuant to a pro se m otion by Kelvin Bernard Badger ("Movant" or "Badger") to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 ("motion to vacate"). (ECF No. 131.) The Un ited States of Am erica ("Respondent") opposes the motion to vacate and moves the court to grant it summary judgment. (ECF Nos. 133, 134.) For the reasons set forth below, the court denies Movant's motion to vacate a nd grants Respondent's motion for summary judgment.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
Movant is a fede ral prisoner currently incarcerated at the Big Sandy United States Penitentiary in Inez, Kentucky. (ECF No. 131-1.) In the instant m atter, Movant was named in a two-count indictment on Decem ber 5, 2006, char ging him with ("Count 1") possession of a firearm by a felon, in violation of 18 U.S.C. §§ 922(g)(1), 924(a)(2), and 924(e); and ("Count 2") possession with intent to distribute a quantity of cocaine, 50 grams or more of cocaine base, and a quantity of marijuana, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 841(b)(1)(C), and 841(b)(1)(D). (ECF No. 1.) On Decem ber 27, 2006, Respondent f iled an inf ormation to communicate to Defendant that he was subject to increased penalties under 21 U.S.C. § 851 based on two prior drug convicti ons under South Carolina law f or "Trafficking in Cocaine" and possession of marijuana with intent to distribute. (ECF No. 9.) On December 28, 2006, Movant entered an initial plea of not guilty to the charges in the indictment. (ECF No. 12.)
Thereafter, a trial was held on Septem ber 20, 2007, and the jury found Defendant guilty as to the two counts in the indictm ent. (ECF Nos. 71, 74.) On June 18, 2008, the court sentenced Movant to a m andatory term of im prisonment of life i n the Bureau of Prisons, consisting of 120 m onths as to Count 1 and lif e as to Count 2, to run concurrently. (ECF No. 98.) Judgm ent was entered on June 19, 2008. (Id. __) M ovant appealed his conviction and sentence to the Court of Appeals for the Fourth Circuit (the "Fourth Circuit") on June 25, 2008. (ECF No. 102.) On Septem ber 9, 2011, the Fourth Circuit af firmed Movant's conviction and sentence (effective October 3, 2011). (ECF Nos. 139, 140.)
On August 27, 2010, Movant f iled the instant motion to vacate his sentence, asserting ineffective assistance of counsel as his ground for relief. (ECF No. 131.) Respondent filed opposition to Movant's motion to vacate and a m otion for summary judgment on September 27, 2010. (ECF Nos. 133, 134.) Movant filed a re ply in s upport of his m otion to vacate on November 11, 2010. (ECF No. 137.)
The court has reviewed the record and finds that the m otions of Movant and Respondent are suitable for disposition without evidentiary hearing or oral argument.
II. LEGAL STANDARD
A. Motions to Vacate Generally
A federal prisoner in custody may challenge the fact or length of his detention by filing a motion pursuant to 28 U.S.C. § 2255. To receive relief under 28 U.S.C. § 2255, a m ovant is required to prove by a preponderance of the evidence that his s entence was imposed in violation of the Constitution or laws of the United States , or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the m aximum authorized by law, or is otherwise subject to collateral attack. 28 U.S. C. § 2255(a). If this showing is m ade, the court must "vacate and set the judgment aside" and "discharge the prisoner or resentence him or grant a new trial to correct the sentence as m ay appear appropriate." 28 U.S.C. § 2255(b). If, on the other hand, "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the court m ay summarily deny the petition without holding a he aring. Rule 4(b), Rules Governing Section 2255 Proceedings; see also 28 U.S.C. § 2255(b) (a hearing is not required on a § 2255 m otion if the record of the case conclusively shows that petitione r is entitled to no relief).
Generally, when a m ovant attacks his sentence ba sed upon errors that could have been but were not pur sued on direct appeal, the m ovant must show cause and actual prejudice resulting from the errors of which he com plains or he m ust demonstrate that a miscarriage of justice would result f rom the refusal of the c ourt to entertain the collateral attack. See United States v. Mikalajunas, 186 F.3d 490, 492-93 (4th Cir. 1999) (citing United States v. Frady , 456 U.S. 152, 167-68 (1982); United States v. Ma ybeck, 23 F.3d 888, 891-92 (4th Cir. 1994)). However, "an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could ha ve raised the claim on direct appeal." Massaro v. United States, 538 U.S. 500, 504 (2003). B. Ineffective Assistance of Counsel
The Sixth Amendment guarantees criminal defendants the right to effective assistance of counsel. Strickland v. W ashington, 466 U.S. 668, 686 (1984). To prevail on a claim of ineffective assistance of counsel, Movant m ust show both that his attorney's perf ormance fell below an objective standard of reasonableness a nd that he suffered actual prejudice. Strickland , 466 U.S. at 687. To dem onstrate deficient performance, Movant must show that counsel m ade errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Id. Competency is measured by what an objectively reasonable attorney would have done under the circum stances existing at the tim e of the representation. Id. at 687-88. To dem onstrate actual prejudice, Movant must demonstrate a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been differ ent." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. Even if counsel's perfor mance is outside the wide range of professional assistance, an error by counsel will not warrant setting aside the conviction if the error had no effect on the judgment. Id. "[A] court need not determ ine whether counsel's performance was deficient before exam ining the prejudice suffered by the defe ndant as a result of the alleged deficiencies." Id. at 697.
A criminal defendant's right to effective assistance of counsel continues through a direct appeal. See Evitts v. Lucey , 469 U.S. 387, 395-96 (1985). To establish prejudi ce relating to the actions of appellate counsel, the m ovant must establish a reasonable probability that, but for his counsel's unreasonable failure to include a particular issue on appeal, he would have prevailed on his appeal. Smith, 528 U.S. at 285-86. C. Liberal Construction of Pro Se Claims
The court is required to construe pro se pleadings liberally. Se e, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Ker ner, 404 U.S. 519, 520 (1972); Loe v. Arm istead, 582 F.2d 1291, 1295 (4th Cir. 1978); Gordon v. Leeke , 574 F.2d 1147, 1151 (4th Cir. 1978) . Pro se pleadings are held to a less stringent standa rd than those drafted by attorneys. Haines , 404 U.S. at 520. Neverthel ess, the requirement of liberal construction does not m ean that the court can ignore a clear failure in the pleading to allege facts which set forth a claim currently cognizable in a federal district court. Weller v. Dep't of Soc. Servs., 901 F.2d 387, 390-91 (4th Cir. 1990).
III. ANALYSIS
A. The Arguments of the Parties
In his motion to vacate, Movant claim s he received ineffective assistance of counsel, asserting that his attorney's perform ance was deficient because he did not (1) object to an indictment that was untimely under § 3161(b) of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174; (2) argue that a life sentence resulting from the 100 to 1 c rack cocaine to powder cocaine sentencing disparity violated Movant's "Due Process and Equal Prot ection rights" and was at odds with the demands of 18 U.S.C. § 3553(a) that the court impose a sentence "sufficient, but not greater than necessary, to com ply with the purposes [of s entencing]" ; and (3) argue that Movant's 2001 conviction for "Trafficking in Cocaine" "involved only possession, not possession with intent to distribute, and thus , should not have been used for enhancem ent purposes under 21 U.S.C. § 851." (ECF No. 131 at 3, 7-8, 11.)
Movant calculates that 120 months was the most punitive sentence he should have received. (ECF No. 131 at 9-10.)
In opposing Movant's motion and in moving for summary judgment, Respondent argues that the perform ance of Movant's counsel wa s not deficient for failing to m ake meritless arguments on the issues raised by Movant in his m otion to vacate. In support of this argum ent, Respondent asserts that Movant's claim s are without m erit that his arrest by state a uthorities triggered the protections of the Speedy Trial Act or that his indi ctment on December 5, 2006 violated the statute of lim itations. (ECF No. 133 at 4-5 (citing United States v. Iaquinta , 674 F.2d 260, 264 (4th Cir. 1992) ("A state arrest i s not relevant for federal speedy trial purposes."); 18 U.S.C. § 3282 (The federa l statute of lim itations is 5 years.)).) Respondent further asserts that Movant's argum ent that a life sentence was unreasonable and in viol ation of his "Due Process and Equal Protection rights" is foreclosed by Fourth Circuit precedent. (Id. at 8-9 (citing United States v. Perkins , 108 F.3d 512, 518-19 (4th Cir. 1997) (rejecting equal protection challenge to t he disparate statutory m andatory minimums applicable to crack cocaine and powder cocaine offenses); United States v. Fisher, 58 F.3d 96, 99-100 (4th Cir. 1995) (rejecting due process challenge to the same)).) Moreover, Movant cannot rely on the Fai r Sentencing Act of 2010 because the act does not provide a basis for challenging his conviction a nd sentence by collateral attack. (Id. at 9-10.) Finally, Respondent asserts t hat Movant's 2001 conviction for "Trafficking in Cocaine" was a properly include d prior felony drug offense under 21 U.S.C. § 851 because it was punishable by im prisonment for more than 1 year. (Id. at 11-12 (citing 21 U.S.C. § 802(44) (A felony drug offense is "an offense that is punishable by im prisonment for more than one year under any law of the United States or of a State . . . that prohibits or restricts conduct relating to narcotic drugs, m arijuana, anabolic steroids , or depressant or stim ulant substances.")).) Based on the f oregoing, Respondent argues that its m otion for summary judgment should be granted and Movant's motion to vacate should be denied.
The Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372 (Aug. 3, 2010), changed the statutory penalty provisions for an offense involving 28 gram s of m ore of cocaine base. Specifically, the FSA narrowed the gap in sentencing between crack cocaine and powder cocaine by raising the threshold quantity for imposition of a 5 year mandatory minimum sentence from 5 grams of crack cocaine to 28 gram s of crack cocaine; and by raising the threshold quantity f or imposition of a 10 year mandatory minimum sentence from 50 grams of crack cocaine to 280 grams of crack cocaine.
Respondent also noted "that in 2001 a conviction for simple possession of Cocaine in violation of South Carolina Code Section 44-53-370 was punishable by imprisonment for more than one year." (ECF No. 133 at 12.) "Thus even if BADGER had been convicted of simple possession of cocaine, he would have still faced a mandatory life sentence based on his conviction on Count 2." (Id.)
In response to Respondent's arguments, Movant reasserts that he received a life sentence under § 841(a)(1)(A) due to the ineffective assistance of his attorne y. In this regard, Movant complains that a com petent attorney would have (1) conducted a pr oper investigation into the facts of the convictions identified in the info rmation filed by Respondent and (2) challenged the usage of Movant's prior state court convictions to enhance his sentence to life under 21 U.S.C. § 851. (ECF No. 137-1 at 3-13 (citing, e.g.__, Shepard v. United St ates, 544 U.S. 13 (2005)).) Movant further complains that a com petent attorney would have ar gued that application of the 100 to 1 crack cocaine to powder cocaine ratio, which resulted in a life sentenc e for possessing more than 50 grams of crack cocaine, violates the dem ands of 18 U.S.C. § 3553(a) because the punishment is greater than necessary to comply with the statutory purposes of sentencing. (Id. at 15-22.) Moreover, Movant asserts that the patent unfairness of his life sentence can be corrected by retroactive application of the Fair Sentencing Act of 2010:
The real reason f or retroactivity is the protection f or the innocent against erroneously conviction or punishment and assuring fundamentally fair procedures when the government finally recognizes its mistakes. Namely the new law is here to protect the rights of those wronged in the past by applying fundam ental procedures to case prior to the enactm ent. For the foregoing reasons above, Mr. Badger's sentence should be corrected to warrant the fairness in sentencing.(Id. at 27.)
Finally, Movant contends that a competent attorney would have objected to Respondent's use of an indictm ent that was untim ely because it was filed 9 m onths after Movant engaged in illegal conduct. (Id. at 28-33.) In light of the foregoing, Movant asserts that he has established the deficient performance of his attorney and has further provided evidence of actual prejudice because "if his defense counse l [had] been e ffective as provided by the Sixth Am endment, he [Movant] would not be imprisoned to a term of Life." (Id. at 2, 13.) Accordingly, Movant asks the court to grant his motion to vacate. B. The Court's Review
Upon the court's review, Movant has not met his burden of e stablishing deficient performance by his attorney to sustain a claim of ineffective assistance of counsel. In this regard, the underlying record does not support Movant's claim that a properly conducted investigation and objection by his attorney would have resulted in the removal of one or both of the predicate state court convictions used to enhance Movant's sentence to life. In South Carolina, trafficking in cocaine (f irst offense) and possession of marijuana with intent to distribute are properly classified as felony drug offenses. See S.C. Code §§ 44-53-370(e) (2000) ("Any person knowingly sells, manufactures, . . . ten grams or more of cocaine . . . is guilty of a felony which is known as "tra fficking in cocaine" and, upon conviction, m ust be punished as follows if the quantity involved is: (a) ten grams or more, but less than twenty-eight grams: 1. for a first offense, a term of imprisonment of not less than three years nor more than ten years, . . . ."); 44-53-370(a) & (b) (2000) ("[I]it shall be unlawful for any person: to m anufacture, distribute, . . . a controlled substance . . . [a] person who violates . . . is guilty of a felony and, upon conviction, for a first offense must be imprisoned not more than fifteen years . . . .") Therefore, Movant's claim that his attorney was objectively unreasonable for failing to object to the enhancement of Movant's sentence based on prior state convictions that were not felonies is without merit.
The court further agrees with Respondent that Movant's attorney w as not deficient for failing to challenge the rea sonableness of his life sentence on Due Process and/or Equal Protection grounds. Moreover, Movant's attempt to give retroactive ef fect to the F air Sentencing Act fails to have m erit because the law lacks a pr ovision making it retroactive, and the Fourth Circuit has specif ically held that it is not to be applie d retroactively. See United States v. Bullard, 645 F.3d 237, 248-49 (4th Cir. 2011) (declin ing to apply the Fair Sentencing Act retroactively to cases pending appeal in the face of 1 U.S.C. § 109, The General Savings Statute); United States v. Wilson, 401 Fed. App'x 760, 762 (4th Cir. 2010) (concluding t hat the Fair Sentencing Act did not apply retroactively to defendant sentenced before act took effect).
Finally, Movant's contention is without m erit that his attorney was defic ient for not moving to dismiss the indictment for violating the Speedy Trial Act. Generally, the Speedy Trial Act requires that the trial of a defendant charged in an indictm ent with the com mission of an offense to com mence within seventy days of ei ther (1) the indictm ent's filing date or (2) the defendant's first arraignm ent before the court, whichever occurs later. See __ 18 U.S.C. § 3161(c)(1); see also United States v. Osteen, 254 F.3d 521, 525 (4th Cir. 2001) . "However, the period may be tolled for a varie ty of r easons, including when the defendant files a pre-trial motion, 18 U.S.C. § 3161(h)(1)(F), or when defens e counsel requests more time to prepare, 18 U.S.C. § 3161(h)(8)(A)" or if the court grants a continuance in order to serve "the ends of justice." See United States v. Hopkins, 310 F.3d 145, 149 (4th Cir. 2002); see also 18 U.S.C. § 3161(h)(7)(A). Although nearly 9 m onths passed between Mova nt's arraignment and the commencement of his trial, his statutory right was not violated because the delay was occasioned almost exclusively by m otions and requests from Movant him self. Specific ally, Movant requested and was granted continuances by the court, thereby tolling the Speedy Trial Act from March 1 to Septem ber 6, 2007. (See ECF Nos. 28, 34, 43.) Taking i nto account the days that the Speedy Trial Act was tolled, Movant was tried within 70 days of his arraignment. Therefore, the court finds that a violation of the Spe edy Trial Act did not occur. In this regard, Movant's attorney did not fall below an objective standard of reasonableness for failing to move to dismiss the indictment.
For purposes of the Speedy Trial Act, a trial normally commences with the voir dire of the jury. See United States v. A-A-A Elec. Co, 788 F.2d 242, 246 (4th Cir. 1986). Thus, a trial for purposes of the Speedy Trial Act commences on the date of jury selection.
Based on the foregoing, Movant is unable to establish deficient perform ance by hi s attorney under Strickland. Accordingly, Movant 's claim for ineffective assistance of counsel fails as a matter of law.
With this finding, the cour t need not address the prejudice component of Movant's ineffective assistance claim. Strickland , 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the defendant makes an insufficient showing of one.")
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IV. CONCLUSION
Upon careful consideration of the entire record and the arguments of the parties, the court is of the opinion that Movant Kelvin Bernard Badger's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 should be and is hereby DENIED. (ECF No. 131.) The motion for summary judgment of the United States of Am erica is hereby GRANTED, and this matter is dismissed with prejudice. (ECF No. 134.)
V. CERTIFICATE OF APPEALABILITY
A certificate of appealability m ay issue only if the applicant has m ade a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c). A pr isoner satisfies this standard by dem onstrating that reas onable jurists would find this court's assessm ent of his constitutional claims is debata ble or w rong and that any dispositive procedural ruling by the district court is likewi se debatable. See, e.g., Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000); Rose v. Lee , 252 F.3d 676, 683 (4th Ci r. 2001). In this matter, the legal standard f or the issuance of a certificate of appealability has not been met. Therefore, the court DENIES a certificate of appealability.
IT IS SO ORDERED.
______________________
MARGARET B. SEYMOUR
SENIOR UNITED STATES DISTRICT JUDGE
June 20, 2013
Columbia, South Carolina