Opinion
No. SA-04-CA-0213-RF, [SA-01-CR-136-EP].
June 9, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the Honorable John W. Primomo, United States Magistrate Judge, entered November 17, 2004. The Magistrate Judge recommends that Movant's Section 2255 motion to vacate sentence be denied. After due consideration, the Court is of the opinion that the Magistrate Judge's Report and Recommendation should be ADOPTED IN ITS ENTIRETY.
PROCEDURAL AND FACTUAL BACKGROUND
Beauford was a supervisory agent at the Alamo Area Narcotics Task Force (AANTF). On February 8, 2001 he was involved in an accident whereafter he was asked to submit to a post-accident drug and alcohol-screen urinalysis test. Beauford tested positive for cocaine and he stated the cause for the positive result was that he handled several kilos of cocaine the week earlier. An audit was ordered because Beauford had access to the evidence locker which revealed that cocaine had been tampered with.
Several weeks before the accident, on January 15, 2001, Beauford had requested access to the particular cocaine exhibit that had been tampered with. At that time, he had stated that the outer wrapping of the exhibit must be removed for fingerprinting but that was a fabrication. Beauford also demonstrated inconsistent behaviors since the inception of the investigation, such as changing his address four times.
On February 8, 2001, an agent received a complaint about possible drug activities at the Clarion Suites where Beauford was living. Beauford stated that he knew the person being complained of and that he would meet the agents at the hotel but he failed to show. Jennifer Lynn Contreras was staying in the room suspected of drug activity. The agents found some marijuana in her room but did not arrest her and subsequently she moved into Beauford's room. A police officer reported seeing Crystal Williams, a known drug abuser, at Beauford's hotel room. Beauford also paid his bill at the Clarion Suites in cash before he had picked up his pay check. Beauford had often complained of financial problems, so it was peculiar that he had such a large amount of money in cash. Agents also conducted surveillance on Beauford and observed two known drug abusers and AANTF informants Crystal Williams and Jennifer Marx come to Beauford's room. Subsequently a search warrant was executed for Beauford's room where agents seized 727.2 grams of cocaine and 34.78 grams of cocaine base.
Beauford was found guilty by a jury of possession with intent to distribute cocaine, possession with intent to distribute more than five grams of cocaine base, and with possession and concealment of a stolen firearm. On February 21, 2004, he was sentenced to serve 151 months of imprisonment on the drug charges and 120 months of imprisonment on the weapons charges running concurrently. After his direct appeal failed, Movant filed his original motion to vacate his conviction and sentence pursuant to 28 U.S.C. § 2255 on March 15, 2004. On May 12, 2004, the Government filed its response. On June 28, 2004, Movant filed his reply to the Government's response. On July 8, 2004, Movant filed a motion to amend his § 2255 motion. On July 19, 2004, Movant's motion to amend was granted. On August 30, 2004, the Court ordered the Government to produce affidavits from Mr. Surovic, an attorney for the Government who was involved in the preparation of the search warrants. On November 16, 2004, United States Magistrate Judge John W. Primomo issued his memorandum and recommendation, recommending that the Court deny the motion to vacate sentence under 28 U.S.C. § 2255.
STANDARD OF REVIEW
The Court reviews a Magistrate Judge's Report and Recommendation de novo if specific objections are filed by a party within ten days of service. These objections must be written, and must "specifically identify the portions of the proposed findings, recommendations, or report to which objection is made and the basis for such objections." If no such specific objections are made to a Magistrate Judge's Report and Recommendation, the Court reviews for findings and conclusions that are clearly erroneous or contrary to law.
W.D. TEX. R. 4(b) at App. C.
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1987).
ANALYSIS
I. Legal StandardTitle 28 U.S.C. § 2255 provides relief for a federal prisoner who can establish that either: 1) his sentence was imposed in violation of the Constitution or laws of the United States; 2) the sentencing court was without jurisdiction to impose the sentence; 3) the sentence was in excess of the maximum authorized by law; or 4) the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255. See United States v. Placente, 81 F.3d 555, 558 (5th Cir. 1996); United States v. Seyfert, 67 F.3d 544, 546 (5th Cir. 1995).
Section 2255 relief is reserved for errors of constitutional dimension and other injuries that could not have been raised on direct appeal. Mere improper application of the Guidelines is not cognizable under Section 2255. In addition, claims that were raised and rejected by the Fifth Circuit on direct review are barred from collateral review. Finally, the Fifth Circuit has repeatedly held that a convicted criminal defendant may not raise an issue, regardless of whether constitutional or jurisdictional in nature, for the first time in a Section 2255 petition absent a showing of either cause and actual prejudice resulting from the error, or that a complete miscarriage of justice will result if left unaddressed.
United State v. Payne, 99 F.3d 1273, 1281 (5th Cir. 1996); United States v. Gaudet, 81 F.3d 585, 589 (5th Cir. 1996).
Payne, 99 F.3d at 1281.
United States v. Rocha, 9 F.3d 225, 230 (5th Cir. 1997).
Gaudet, 81 F.3d at 589; United States v. Acklen, 47 F.3d 739, 741-742 (5th Cir. 1995).
II. Procedurally Barred Claims
The Government contends that the issues raised by Beauford are procedurally barred because they were not raised on direct appeal. A motion to vacate sentence is not a substitute for direct appeal and collateral review is barred unless the petitioner demonstrates cause for that failure and actual prejudice as a result of the alleged violation of federal law.
States v. Acklen, 47 F.3d 739, 741 (5th Cir. 1995); Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Beauford raises several issues concerning the procedures that led to the seizure of evidence used to support his convictions. He contends that the search and seizure of incriminating evidence violated the Fourth Amendment because the law enforcement officers who investigated him, obtained and executed the search warrants, and discovered the evidence, were acting outside their jurisdiction. He also contends that his conviction was obtained by the use of evidence seized pursuant to search warrants issued in violation of Rule 41. Also, Beauford argues that the search was unreasonable because there was no testimony by the entry team that they knocked and announced their presence before entering as required by 18 U.S.C. § 3109. Beauford asserts that the search of his residence was unreasonable because the officers exceeded the scope and authority of the warrant and also that the search warrant for his residence was invalid because it was only supported by a "bare bones" affidavit.
Beauford asserts that the issues he now presents were not raised on direct appeal because of ineffective assistance of counsel. Ineffective assistance of counsel requires a showing of deficient performance and prejudice in order to constitute cause to excuse procedural default. A submitted affidavit of Assistant Federal Public Defender Judy Fulmer Madewell who represented Beauford on direct appeal shows she researched and considered various issues to raise on appeal including the search and seizure issues now raised. Beauford has presented no evidence proving that Madewell erred in exercising her judgment not to raise the search and seizure issues.
Edwards v. Carpenter, 529 U.S. 446, 451 (2000).
Beauford has not established prejudice. He filed a motion to suppress claiming that the affidavit supporting the warrant for the search of the Clarion Suites Motel residence was insufficient, the search exceeded the scope of the warrant, and the officers executing the warrant violated statutory requirement in failing to knock and announce themselves before entry. The search warrant affidavit was not "bare bones" as Beauford contends because the information presented set forth sufficient probable cause to authorize a search of Beauford's room for the missing 1.1 pounds of cocaine.
Beauford also contends and again states in his objections that seizure of videotapes and computer discs from his room exceeded the scope of the warrant and does not fall within the plain view doctrine. In order for an officer to seize an item in plain view he must lawfully be in a position to observe the item and the evidentiary value must be immediately apparent. Although Beauford objects that the videotapes and computer discs were taken during the first warrant, the Magistrate Judge finds that they were not seized until the second warrant was obtained, so the objection that the incriminating nature of the videotapes and computer discs was not readily apparent is invalid.
Minnesota v. Dickerson, 508 U.S. 366, 370 (1993).
Beauford contends that the executing officers failed to comply with 18 U.S.C. § 3109 because they did not knock and announce their presence before entry. In order to justify a no-knock entry, the officers must have a reasonable suspicion that the knock and announce would be dangerous and futile or that it would hinder the investigation. Beauford objects to the Magistrate Judge's findings that the officers were concerned about their safety because that concern was based on generalizations of the drug culture and an unsubstantiated possibility that Beauford may have weapons. However, The Fifth Circuit has held that an exigency claim is examined from the totality of circumstances as they would appear to a reasonable and prudent person at the moment of entry. Although the officers may have based their concern on generalizations, such a factual determination is virtually unassailable on appeal and the Court will accept reasonable determinations of the executing officers that they were concerned for their safety. Because Beauford has failed to establish either cause or prejudice for failure to raise search and seizure issues on direct appeal, consideration of those issues are procedurally barred.
Richards v. Wisconsin, 520 U.S. 385, 388 (1997).
United States v. Howard, 106 F.3d 70, 74 (5th Cir. 1997).
III. Suppression of Evidence
Beauford contends that the evidence supporting his conviction should have been suppressed because the officers who investigated him, obtained and executed search warrants, and discovered incriminating evidence were acting outside their jurisdiction in violation of Rule 41. A search warrant is issued upon request from a federal law enforcement officer or an attorney of the government. An affidavit was submitted from United States Attorney Greg Surovic that Officer Battaglia followed proper procedure for application of a search warrant. Surovic was contacted by Officer Battaglia who was seeking to obtain a search warrant. Surovic approved the warrant and then the application was presented to Magistrate Judge Nancy S. Nowak who issued the warrant.
Beauford objects to the issuance of the search warrant because Officer Battaglia is not a Federal law enforcement officer. Beauford contends that if a warrant is not directed to a federal officer and executed by a federal officer then evidence seized should not be admitted into evidence. Beauford's contention fails because the information may come from either the applicant federal law enforcement officer or the attorney for the government and in the instant case, Mr. Surovic, an attorney for the government initialed Officer Battaglia's search warrant application and then Officer Battaglia proceeded to present the application to the Magistrate Judge.
Beauford contends that his urine specimen that tested positive for cocaine should not have been used as support to obtain a search warrant of his residence because the specimen is privileged. The Magistrate Judge found that no authority precludes use of Beauford's drug test as basis to obtain a search warrant. Beauford objects that the crime with which he is charged was not a factor at the time he gave the specimen. However, the purpose of even suspicionless drug testing is to detect violations by employees and the compelling governmental interest to prohibit drug use by employees and protect the intergrity of the Nation overweighs the privacy interest of the employee. The Court finds the evidence supporting Beauford's convictions should not have been suppressed.
Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 679 (1989).
IV. Sentencing
Beauford asserts that the District Court erred during sentencing by allowing consideration of 1.1 pounds of cocaine in addition to the drugs seized during the arrest. Also, he contends that he was not given sufficient time to review and object the Pre-Sentence Investigation Report (PSIR) and that the District Court committed error by considering user quantities of cocaine at sentencing instead of distributable quantities. Beauford claims the same errors in his objection to the Magistrate Judge's findings. These claims are not reviewable because a District Court's application of Sentencing Guidelines are not cognizable under Section 2255.
Melendez v. United States, 518 U.S. 120, 125 (1996); United States v. Cervantes, 132 F.3d 1106, 1109 (5th Cir. 1998).
Beauford objects to the Magistrate Judge's failure to address an issue raised in Movant's motion to amend his Section 2255 motion to vacate sentence. On July 19, 2004, the Magistrate Judge granted Beauford's motion to amend his Section 2255 motion to vacate judgment to add a claim based upon Blakely v. Washington. However, the Magistrate Judge also stated that the Government did not have to respond to the motion because the Fifth Circuit had ruled that Blakely did not apply to the Federal Sentencing Guidelines.
Blakely v. Washington, 124 S.Ct. 2531 (2004).
On January 12, 2005, in United States v. Booker, the Supreme Court applied the rule in Blakely to federal Sentencing Guidelines and found unconstitutional the provision of the federal sentencing statute that makes Guidelines mandatory. Booker also specifically stated that its holding only applied to cases on direct review, not cases on collateral review. Beauford's objections concerning Blakely are invalid because his claims were not raised on direct appeal.
V. Ineffective Assistance of Counsel
Beauford asserts that his counsel failed to properly investigate, interview and call witnesses. He also contends that counsel failed to preserve the record on appeal regarding the absence of authority for local law enforcement officers to obtain search warrants and counsel failed to object to sentencing violations. For these reasons, Beauford contends that his trial counsel provided ineffective assistance. The Supreme Court has held "[t]he bench mark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Beauford must demonstrate that his counsel was deficient and that the deficiency caused prejudice to his defense and overcome the strong presumption in favor of trial counsel's professional conduct.
Strickland v. Washington, 466 U.S. 668, 686 (1984).
Id. at 692.
Beauford contends that his counsel failed to investigate, interview and call witnesses. Although counsel must make a reasonable investigation, failure to investigate and develop useful evidence will not suffice to prove ineffective counsel. Beauford must show how the investigation would have made a difference at trial. Also, Beauford does not explain how counsel failed to preserve the record for appeal on the suppression issues. Beauford fails to show what witnesses should have interviewed or called at trial or why those witnesses would have made a difference.
Beauford states that his counsel failed to object to sentencing errors but counsel did contest the 1.1 pounds of cocaine had not been proved at trial. Yet under Section 1B1.3 of the Sentencing Guidelines, the base offense level must be determined with regard to all acts and omissions committed by the defendant, so the 1.1 pounds of cocaine did not have to be proven at trial.
Beauford also complains that he was not given sufficient time to review and object to the amended PSIR but the amendment lowered the amount of drugs that Beauford was accountable for. The only change in the amended version of the PSIR benefitted Beauford and so he would have no reason to object.
Beauford alleges that counsel ineffectively failed to object to the District Court's consideration of quantities of cocaine at sentencing intended for personal use. The Fifth Circuit has never held that quantities of cocaine for personal use can be excluded and Beauford offers no proof that he advised his counsel concerning the amount of drugs that were for personal use only. The Court finds that Beauford's counsel exercised reasonable professional judgment in his representation of Beauford. Beauford's allegations about his counsel's shortcomings, standing alone, fail to raise an inference of ineffective assistance.
CONCLUSION
The Court finds that Beauford has failed to show that evidence supporting his convictions should have been suppressed, that there was error in his sentencing, or that his counsel gave ineffective assistance.
For the foregoing reasons, the Court ORDERS that Movant's Motion to Vacate, pursuant to Title 28 U.S.C. § 2255 be DENIED.
FINAL JUDGMENT
On this day the Court entered an order adopting the Memorandum and Recommendation of the United States Magistrate Judge and dismissing Plaintiff's Complaint. The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.It is ORDERED that the Memorandum and Recommendation of the Magistrate Judge be ADOPTED IN ITS ENTIRETY.
It is ORDERED that all of Plaintiff's claims be DISMISSED WITH PREJUDICE.
It is ORDERED that each party bear its own costs.