Opinion
No. 3:01CV03-D.
January 23, 2001.
OPINION
Presently before the court is the Petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Upon due consideration, the court finds that the motion should be denied.
A. Factual and Procedural Background
On September 9, 1999, the Petitioner pled guilty to one count of possession with intent to distribute crack cocaine in violation of 21 U.S.C. § 841. He was sentenced to sixty months imprisonment on January 7, 2000. The Petitioner did not appeal his sentence. On January 4, 2001, the Petitioner filed this motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255.
B. Discussion
In his motion, the Petitioner seeks relief on four grounds: first, that he was denied his Sixth Amendment right to the effective assistance of counsel; second, that he was wrongfully denied credit during sentencing for acceptance of responsibility; third, that the United States did not adequately prove to the court that a factual basis for the Petitioner's guilty plea existed; i.e., that he possessed over fourteen grams of crack cocaine with the intent to distribute; and fourth, that he was sentenced based upon conduct charged in Count Two of his indictment, a charge to which he did not plead guilty. For the reasons set forth below, the court finds that none of the Petitioner's asserted grounds have merit, and his motion shall be denied.
1. Ineffective Assistance of Counsel
The Petitioner asserts that his court-appointed attorney, Stephen P. Nick, rendered ineffective assistance of counsel to the Petitioner during the Petitioner's guilty plea and sentencing proceedings. In order to establish ineffective assistance of counsel, the Petitioner must pass the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Strickland requires that a habeas petitioner establish that:
(1) his counsel's performance was deficient in that it fell below an objective standard of reasonableness; and
(2) the deficient representation prejudiced the Petitioner such that the results of the proceeding would have been different.Strickland, 466 U.S. at 687-88.
In other words, the Petitioner must demonstrate not only that his attorney was objectively deficient, but also that the Petitioner was prejudiced as a result of his attorney's deficient performance. Westley v. Johnson, 83 F.3d 714, 723 (5th Cir. 1996). With respect to guilty pleas, the prejudice requirement "focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process." Hill v. Lockhart, 474 U.S. 52, 59, 1066 S.Ct. 366, 370, 88 L.Ed.2d 203 (1985). Thus, the Petitioner "must show 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. Here, the Petitioner cannot establish either prong of theStrickland test.
First, the Petitioner has failed show that, but for his attorney's alleged errors, he would have insisted on pleading not guilty and gone to trial. Consequently, the Petitioner did not suffer any prejudice and dismissal of his claim is proper. See Amos v. Scott, 61 F.3d 333, 348 (5th Cir. 1995) (holding that court may dispose of claim based solely on Petitioner's failure to meet either prong of Strickland test). The reason for this conclusion is obvious: had he not pled guilty, the Petitioner would have been exposed to conviction for two offenses instead of one, and he was facing prison time potentially in excess of forty-five years, as opposed to the five year statutory minimum sentence he received after pleading guilty to only one count of the indictment. The evidence against the Petitioner was apparently overwhelming and it is inconceivable that he would have chosen to risk a sentence nine times lengthier than the sentence he received following plea bargaining with the prosecutor. In any event, the court finds that, given the much greater sentence that the Petitioner would have received had he been convicted at trial, it is unlikely that he would have insisted on proceeding to trial.
Furthermore, all of the legal determinations and advice the Petitioner asserts were deficient were strategic choices made by his counsel. The court finds that those choices, as well as the Petitioner's decision to plead guilty, were the result of sound and reasonable legal advice. The court reviews counsel's conduct with great deference, "strongly presuming that counsel has exercised reasonable professional judgment." United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996). The record is clear that the Petitioner's attorney advised him in a competent and reasonable manner, and the Petitioner has not offered any proof that his decision to plead guilty was the result of anything less than effective, competent, and reasonable legal advice.
In addition, the Petitioner has offered no proof whatsoever to support his claims that his attorney failed to investigate the circumstances surrounding the Petitioner's arrest. And it is axiomatic that conclusory and unsupported allegations are insufficient to raise a constitutional issue in a federal habeas proceeding. Miller v. Johnson, 200 F.3d 274, 282 (5th Cir. 2000). As such, the Petitioner has failed to satisfy the Strickland test, and his claims of ineffective assistance of counsel fail.
2. Acceptance of Responsibility
The Petitioner asserts that he was wrongfully denied credit during sentencing for acceptance of responsibility, a determination that allows for a two point reduction in offense level computation. The record is clear, however, that the Petitioner was given a two point reduction for acceptance of responsibility, and his offense level was according scaled downward from level twenty-six to level twenty-four. As such, this asserted ground of relief is without merit.
3. Factual Basis for Guilty Plea
The Petitioner next asserts that the United States did not adequately prove to the court that a factual basis for his plea existed; i.e., that he possessed over fourteen grams of crack cocaine with the intent to distribute. The Petitioner does not dispute, however, that he competently pled guilty to Count One of the indictment against him. During the Petitioner's guilty plea proceeding, the Assistant United States Attorney working on this case read aloud what the government's proof at trial would be. The Petitioner, who had been told by the court to pay close attention to what the Assistant U.S. Attorney said, was then asked if he agreed with the government's factual basis for the guilty plea. The Petitioner agreed, and admitted that he was in fact guilty of possessing 14.36 grams of crack cocaine with the intent to distribute. It is solely this conduct that formed the basis of the Petitioner's sentence. As such, the court is satisfied that the government satisfactorily presented a factual basis for the Petitioner's guilty plea, and the court is satisfied that the Petitioner competently pled guilty to the charge against him. This asserted ground for relief, therefore, is without merit.
4. Sentencing
Lastly, the Petitioner asserts that he was sentenced based not only upon the charge to which he pled guilty, but also upon conduct charged in Count Two of his indictment, a charge to which he did not plead guilty.
Count Two of the Petitioner's indictment was dismissed by the United States upon the Petitioner's entry of a guilty plea to Count One of the indictment. The charge to which the Petitioner pled guilty, possession with intent to distribute crack cocaine, carries a statutory minimum sentence of five years imprisonment, and a maximum penalty of forty years imprisonment. See 21 U.S.C. § 841. The charge that was dismissed against the Petitioner, possession with intent to distribute marijuana, carries no statutory minimum sentence, but has a maximum penalty of five years imprisonment. See 21 U.S.C. § 841.
In computing the Petitioner's offense level, the court followed the United States Sentencing Guidelines, and based the Petitioner's sentence solely on the offense to which the Petitioner pled guilty. No other offense behavior was factored into the court's arrival at the Petitioner's sentence. In fact, the only adjustment the court made to the base offense level prescribed for the offense to which the Petitioner pled guilty was a two point reduction for acceptance of responsibility. As such, this asserted ground for relief is without merit, and the Petitioner's motion shall be denied in its entirety.
A separate order in accordance with this opinion shall issue this day.
ORDER
Pursuant to an opinion issued this day, it is hereby ORDERED that
• the Petitioner's motion to vacate sentence pursuant to 28 U.S.C. § 2255 (docket entry 17) is DENIED.