Opinion
No. 4:06-CV-769 CAS.
May 29, 2008
MEMORANDUM AND ORDER
This matter is before the Court on federal prisoner Jimmy Dean Hinson's motion under 28 U.S.C. § 2255 to vacate, set aside or correct his sentence. The government has filed a response to the motion to vacate and the movant has filed a reply. For the reasons discussed below, the Court concludes that all of the grounds asserted by movant are without merit.
Background .
On August 19, 2005, Hinson and three co-defendants were indicted on one count of conspiracy to knowingly and intentionally manufacture and distribute a mixture or substance containing methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 846 (Count I), and Hinson was indicted on one count of carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count II); carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1) (Count III); and Hinson and the three codefendants were indicted on one count of conspiracy to possess pseudoephedrine knowing and having reasonable cause to believe it would be used to manufacture a controlled substance in violation of 21 U.S.C. § 841(c)(2) and 846 (Count IV). See United States v. Hinson, No. 4:04-CR-463 CAS (E.D. Mo.).
Movant was arraigned on September 1, 2004, at which time he entered a plea of not guilty. Movant initially challenged the government's charges and filed motions to suppress evidence and statements on September 10, 2004, through his appointed attorney, Peter M. Cohen. An evidentiary hearing was held on September 17, 2004 before United States Magistrate Judge Terry I. Adelman. On September 30, 2004, the Court granted Mr. Cohen's motion to withdraw as attorney for movant, because retained counsel Douglas A. Forsyth, Sr. had entered an appearance for movant. On November 19, 2004, Judge Adelman recommended that this Court deny movant's motions to suppress evidence and statements. On February 17, 2005, movant appeared with his attorney Mr. Forsyth and changed his plea to guilty on Counts I, II and IV, and withdrew his previously-filed pretrial motions to suppress. Under the Plea Agreement, the government agreed to dismiss Count III and the parties agreed to request sentencing within the applicable range provided by the federal Sentencing Guidelines, 168 to 195 months.
The Plea Agreement states in part that movant was fully satisfied with the representation he received from his attorney, and that movant had reviewed the government's evidence and discussed the government's case and all possible defenses and defense witnesses with defense counsel. (Plea Agreement dated Feb. 17, 2005 at 17, Doc. 124 in Case No. 4:04-CR-463 CAS). The Plea Agreement also states that defense counsel completely and satisfactorily explored all areas defendant had requested relative to the government's case and any defenses. (Id.)
Movant waived his right to file an appeal with respect to non-jurisdictional issues. (Id. at 3). Movant also waived all rights to contest the conviction or sentence in any post-conviction proceeding, except for claims of prosecutorial misconduct or ineffective assistance of counsel. (Plea Agreement at 4). On May 12, 2005, the Court sentenced movant to a term of 60 months imprisonment on Counts I and IV, and 60 months imprisonment on Count II, to be served consecutively for an aggregate term of imprisonment of 120 months, followed by three (3) years supervised release. No direct appeal was filed.
In the § 2255 motion now before the Court, Hinson asserts three claims of ineffective assistance of counsel: (1) his attorney failed to challenge the validity of search warrants obtained by false information; (2) his attorney advised movant to sign a plea agreement prematurely, before "another round of talks" with the government and DEA agents; and (3) his attorney allowed movant to plead guilty to Count II, the § 924(c) gun charge, because the gun was merely present and this is insufficient to support a § 924(c) conviction. The Court will address each ground in turn.
Legal Standard .
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was imposed in violation of the Constitution or law of the United States, that the court lacked jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To warrant relief under § 2255, the errors of which the movant complains must amount to a fundamental miscarriage of justice.Davis v. United States, 417 U.S. 333 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). The Supreme Court has stated that "a collateral challenge may not do service for an appeal."United States v. Frady, 456 U.S. 152, 165 (1982).
"To establish ineffective assistance of counsel within the context of section 2255, . . . a movant faces a heavy burden."United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To prevail on an ineffective assistance of counsel claim, a movant must show both that counsel's performance was deficient and that he was prejudiced by the deficient performance. See McReynolds v. Kemna, 208 F.3d 721, 722 (8th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Under the deficient performance inquiry of Strickland, a court considers whether counsel's performance was reasonable "under prevailing professional norms" and "considering all the circumstances." Burkhalter v. United States, 203 F.3d 1096, 1098 (8th Cir. 2000) (quoting Strickland, 466 U.S. at 688). It is presumed that counsel acted reasonably, and much deference is granted to counsel's performance. Id.; see Parkus v. Bowersox, 157 F.3d 1136, 1139 (8th Cir. 1998). Prejudice is shown if there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. In other words, a movant "must show a reasonable probability that absent the alleged errors of counsel he would have been found not guilty."United States v. Robinson, 301 F.3d 923, 925 (8th Cir. 2002) (citing Garrett v. United States, 78 F.3d 1296, 1301 (8th Cir.),cert. denied, 519 U.S. 956 (1996)). "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. "Because the failure to establish prejudice can be dispositive of a case," this Court "need not address the reasonableness of the attorney's behavior if the movant cannot prove prejudice." Apfel, 97 F.3d at 1076 (citations omitted). Further, statements which are self-serving and unsupported by evidence do not establish a basis for relief under section 2255.Id. at 1077.
The Strickland standard applies to guilty plea challenges premised upon allegations of ineffective assistance of counsel.Hill v. Lockhart, 474 U.S. 52, 58 (1985). To establish ineffective assistance of counsel, under the first prong a movant must demonstrate that "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. When evaluating counsel's performance, "[a] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."Id. at 689. Even if sufficient proof of the first prong exists, relief is warranted only if a movant also establishes that counsel's deficient performance prejudiced the case. Id. at 697. To satisfy the second prong's "prejudice" requirement, the movant must show "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 v. Lockhart, 474 U.S. at 59. A court may address the two prongs in any order, and if the movant fails to make a sufficient showing of one prong, the court need not address the other prong. Strickland, 466 U.S. at 697; Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000).
The Court concludes that the instant motion under § 2255 can be determined based on the motion, files and records in the case, which conclusively show that movant is not entitled to relief.
Discussion .
I.
It is well established that entry of an unconditional guilty plea waives all challenges to the prosecution of a criminal case, except for those related to jurisdiction. See United States v. Winheim, 143 F.3d 1116, 1117 (8th Cir. 1998); Smith v. United States, 876 F.2d 655, 657 (8th Cir.), cert. denied, 493 U.S. 869 (1989). Collateral review of a guilty plea is therefore "ordinarily confined to whether the underlying plea was both counseled and voluntary." United States v. Broce, 488 U.S. 563, 569 (1989).A defendant may affirmatively waive particular constitutional rights. See Boykin v. Alabama, 395 U.S. 238, 243 (1969) (right to a jury trial, to confront and cross-examine witnesses, and to the Fifth Amendment privilege against self-incrimination); Faretta v. California, 422 U.S. 806, 836 (1975) (right to counsel). There is no constitutional right to appeal, as the right to appeal is purely a creature of statute. Abney v. United States, 431 U.S. 651, 656 (1977). Because defendants can waive fundamental constitutional rights, they are not precluded from waiving procedural rights granted by statute, such as the right to appeal. United States v. Rutan, 956 F.2d 827, 829 (8th Cir. 1992), overruled in part by United States v. Andis, 333 F.3d 886, 892 n. 6 (8th Cir. 2003) (en banc).
Agreements by criminal defendants to waive appellate rights and the right to pursue post-conviction relief have been upheld by the Eighth Circuit. See United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999); United States v. Michelsen, 141 F.3d 867, 873 (8th Cir.), cert. denied, 525 U.S. 942 (1998); United States v. His Law, 85 F.3d 379, 379 (8th Cir. 1996); Rutan, 956 F.2d at 829. In DeRoo v. United States, the Eighth Circuit stated, "As a general rule, we see no reason to distinguish the enforceability of a waiver of direct-appeal rights from a waiver of collateral-attack rights in the plea agreement context." DeRoo, 223 F.3d 919, 923 (8th Cir. 2000). "The 'chief virtues' of a plea agreement are speed, economy, and finality," id. at 923, which are "promoted by waivers of collateral appeal rights as much as by waivers of direct appeal rights." Id. "Waivers preserve the finality of judgments and sentences, and are of value to the accused to gain concessions from the government." Id.
Such waivers are not absolute, however. Defendants cannot waive their right to appeal an illegal sentence or a sentence imposed in violation of the terms of an agreement. DeRoo, 223 F.3d at 923. In addition, "the decision to be bound by the provisions of the plea agreement, including the waiver provisions, must be knowing and voluntary." Id. (citing Morrison, 171 F.3d at 568). "A decision to enter into a plea agreement cannot be knowing and voluntary when the plea agreement itself is the result of advice outside 'the range of competence demanded of attorneys in criminal cases.'" Id. (quoting Hill v. Lockhart, 474 U.S. at 56).
II.
A. Ineffective Assistance of Counsel1. Ground One: April 19, 2002 Search Warrant
Movant's first ground is that he received ineffective assistance of counsel because counsel failed to challenge the validity of a search warrant obtained by false information. Mot. to Vacate at 5. Movant's ground refers to the first of four search warrants obtained in the underlying criminal case, a warrant obtained on the affidavit of Cuba, Missouri Police Officer Raymond McFadden on April 19, 2002, based largely on information provided by an arrestee, Jake Parker. Movant contends that Parker lied that (1) movant had been making methamphetamine at 29 Oak Hill Road, and (2) movant had a lengthy criminal record for illegal drugs in the State of Georgia, and that this false information was the basis for the warrant. Movant's Mem. Supp. at 12.
Movant contends the warrant was invalid because it was based on false information, and that his counsel was ineffective for failing to investigate the false statements. Movant contends that Parker's statement was false because Parker was in custody when the statements were made, and "How could he possible [sic] know what Petitioner was doing at that exact time." Movant's Mem. Supp. at 13. Movant contends that Officer McFadden's testimony concerning movant's alleged criminal history in Georgia was false because movant has never been in the State of Georgia. Movant contends that without the false information, there would have been no probable cause for issuance of the warrants, and if counsel had investigated and brought the issue to the Court's attention, the Court would have held that the warrants were invalid.
Movant's first ground is conclusively refuted by the record. Movant's then-attorney, Mr. Cohen, filed a motion to suppress evidence gained from execution of the April 19, 2002 warrant. The recording of the evidentiary hearing reflects that Mr. Cohen questioned Officer McFadden about the information obtained from Parker and also about McFadden's averment that movant had a lengthy criminal history in Georgia. Although McFadden could not remember how he obtained the information, he testified that it would have been "checked" before he put it into the affidavit. Mr. Cohen re-raised the issue of the Georgia information and the reliability of the affidavit at the end of the evidentiary hearing, and Judge Adelman directed the government to look into the matter further. Judge Adelman noted that under Franks v. Delaware, 438 U.S. 154 (1978), even if the information was incorrect, the issue would be whether it was recklessly included in the affidavit.
The Assistant U.S. Attorney, Ms. Decker, subsequently filed a Memorandum to the Court which stated that in post-hearing correspondence with McFadden concerning the Georgia information, McFadden advised that he had run movant's name for a criminal records check and received information that a person with the same or similar name had a record in Georgia. (Doc. 64 in 4:04-CR-463 CAS). McFadden believed the information concerned movant, but conceded that it may not have been movant's history.
In the Memorandum and Recommendation, Judge Adelman did not discuss or rely on the Georgia information in determining whether the affidavit was sufficient to establish probable cause. Instead, Judge Adelman focused on multiple factors which made the information from Parker sufficient to establish probable cause for the warrant: the information from Parker was fresh, specific and based on personal observations, as Parker told the officer he had been at movant's home the day before and observed movant to be in possession of an ounce of methamphetamine which he stored in an upstairs bedroom. Parker also observed two tanks of anhydrous ammonia being used to produce methamphetamine, and told the officer that movant had asked Parker to obtain more as movant was "running low." Memorandum and Recommendation at 20. In addition, Parker's full name and details of his arrest for possession of drug paraphernalia were detailed in the affidavit, which lent credibility to Parker's statements, and his statements were against his penal interests. Id. at 21. The officer did not state that Parker was a reliable informant, but had prior contact with Parker and was aware that Parker was a drug user familiar with the materials necessary for the production of methamphetamine. Id.
Although Judge Adelman omitted any reference to movant's alleged Georgia criminal history from his Findings of Fact, he concluded "that sufficient probable cause exist[ed] to authorize the issuance of the search warrant." Memorandum and Recommendation at 14. Judge Adelman further concluded,
[E]ven if [the Court] were to conclude that the affidavit was insufficient to establish the probable cause requirement for the issuance of the warrant, the evidence seized would nevertheless be admissible because there is very ample evidence to support a finding that the good faith exception to the exclusionary rule would apply under United States v. Leon, 468 U.S. 897 (1984).Id.
Thus, movant's counsel challenged the search warrant and succeeded in convincing the Magistrate Judge that information concerning the alleged Georgia criminal history should not be considered in support of the search warrant, but the Magistrate Judge determined that other information in the affidavit was sufficient to provide probable cause to support the warrant. The Magistrate Judge also determined that even if the affidavit was not sufficient to establish probable cause, the evidence seized from movant would still be admissible under a good-faith exception to the exclusionary rule.
Based on the foregoing, the Court concludes that movant cannot establish that his "counsel's representation fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Further, movant cannot show there was a "reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart, 474 U.S. at 59. This ground should therefore be dismissed.
2. Ground One: December 21, 2002 Search Warrant
Movant's first ground also alleges ineffective assistance of counsel with respect to the second search warrant, dated December 21, 2002, as movant alleges that "Officer Paul Crow obtained the search warrant by using a fugitive at large and his AKA name." Mot. to Vacate at 5.
The record indicates that movant's counsel moved to suppress the evidence seized pursuant to the December 21, 2002 warrant, but the Magistrate Judge concluded there was "overwhelming probable cause in the affidavit upon which the warrant to search" movant's home based on information provided to Cuba, Missouri police officer Paul Crowe by an arrestee, Roger Cramer:
Movant spells this individual's name as "Rodger Kreamer."
The information included the following: That a person named Roger Cramer had been arrested in possession of a bottle of clear liquid that tested positive for methamphetamine; that Cramer told detectives he had obtained the methamphetamine at the above address from Hinson from whom he regularly buys methamphetamine; that Hinson obtained methamphetamine from a soda can in his bedroom and that there were several other similar amounts of methamphetamine in the soda can; that Hinson keeps a loaded handgun by the bed in his bedroom; has surveillance cameras which cover the entrance of the residence and determines when people are approaching the residence. Cramer described in detail the layout of the premises, and stated that all of this observation and information had taken place the day before. As corroboration for this information, detectives stated that the layout given to them by Cramer was exactly the same as the layout they observed at the house during the prior search warrant; that methamphetamine and methamphetamine precursors were found at the house during the prior search, and that two independent and reliable informants who had been used in the past had in the previous two weeks personally observed Hinson manufacturing methamphetamine on the premises, and had verified that through the smell of anhydrous ammonia and ether.
Memorandum and Recommendation at 22-23.
There is a typographical error on page 22 of the Memorandum and Recommendation concerning the date of the second search warrant. Subheading B on page 22 refers to an October 21, 2003 Warrant, but the discussion concerns the facts and law relevant to the December 21, 2002 search warrant. Subsection C on page 24 of the Memorandum and Recommendation also refers, correctly, to the October 21, 2003 warrant.
Movant's counsel challenged the validity of the second warrant, but his challenge was rejected based on the strong evidence of probable cause in the affidavit. Counsel's conduct was reasonable under prevailing professional norms, as counsel was functioning as the counsel guaranteed by the Sixth Amendment. Strickland, 466 U.S. at 687. Movant therefore cannot establish the firstStrickland factor. In addition, movant cannot establish the second Strickland factor, prejudice, because he has not even alleged that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial. Hill v. Lockhart, 474 U.S. at 59. This ground should therefore be dismissed.
3. Ground Two: Premature Plea Agreement,
In Ground Two, the motion to vacate alleges the following:
Counsel was ineffective when he advised Petitioner to sign the plea agreement knowing that there was to be another round of talks with the prosecutor and DEA because the first round was defaulted due to the fact that Franklin Co. Detectives Travis Blankenship and Scott Briggs were possibly involved in the conspiracy to Manufacture Methamphetamine along with other officers of Franklin and Crawford Co.
(Mot. to Vacate at 6.) The only further apparent reference Hinson makes to this assertion is on page 14 of his Memorandum, where he states, "I personally feel [my attorney] was working for the government's side." Hinson offers no evidence to support his charge that Detectives Blankenship and Briggs were "possibly involved" in a conspiracy to manufacture methamphetamine, or that there was another round of plea negotiations to be held between the parties.
Movant's vague and conclusory allegation that counsel ineffectively advised him to sign the plea agreement prematurely does not present adequate grounds to grant relief under an ineffective assistance of counsel claim. See United States v. Robinson, 64 F.3d 403, 405 (8th Cir. 1995). Movant does not allege any further deficiency by counsel, and fails to establish how any "premature" plea agreement prejudiced him, as there is no indication that a guilty plea would not have occurred had the actual agreement been postponed. See Hill v. Lockhart, 474 U.S. at 59. In addition, the plea agreement and transcript of the sentencing proceedings show beyond doubt that movant's plea was voluntary. See Robinson, 64 F.3d at 405.
Under Strickland, a defendant must prove both constitutionally defective assistance of counsel and prejudice. Patterson v. United States, 133 F.3d 645, 647 (8th Cir. 1998). Movant's allegations in Ground Two fails to establish either prong of the test. This ground should therefore be dismissed.
4. Ground Three: 18 U.S.C. § 924(c)(1)
In Ground Three, movant asserts that his "[c]ounsel was ineffective for allowing Petitioner to plea[d] guilty to 924(c)." Mot. to Vacate at 8. Movant asserts that the "mere presence of a gun is not enough to support a § 924(c) conviction. What is required is evidence more specific to the defendant, showing his possession actually further [the] drug trafficking offense." Id.; Movant's Mem. Supp. at 13. Movant cites three cases in support of his argument, United States v. Ceballos-Torres, 218 F.3d 409, 414 (5th Cir. 2000), cert. denied, 531 U.S. 1102 (2001); United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001), cert. denied, 534 U.S. 1097 (2002); and United States v. Sparrow, 371 F.3d 851, 853 (3rd Cir. 2004).
Although each of the three cases hold that more than "mere possession" of a firearm is necessary to support a charge under Section 924(c), as the evidence must demonstrate that possession of the firearm advanced or helped further a drug trafficking crime, they also hold that a firearm which is loaded and easily accessible when possessed in a drug trafficking context is sufficient to support a conviction under the statute. See Ceballos-Torres, 218 F.3d at 415; Mackey, 265 F.3d at 462-63; see also Sparrow, 371 F.3d at 853 (even though firearm was not easily accessible, where it was strategically located in hidden floor compartment with drugs and cash, it was immediately available for defendant's protection whenever he retrieved drugs or money from the compartment. "Therefore, it is reasonable to assume the firearm was placed in the floor compartment for that purpose and was possessed in furtherance of Sparrow's drug activities.")
The Eighth Circuit has cited Ceballos-Torres for the proposition that "simultaneous possession of drugs and a firearm is not alone sufficient to support a conviction under § 924(c)(1)(A). Evidence of a nexus between the defendant's possession of the firearm and the drug offense is required."United States v. Hamilton, 332 F.3d 1144, 1150 (8th Cir. 2003) (citing Ceballos-Torres, 283 F.3d at 414). "[T]he jury must be able to infer that the defendant's possession of the firearm facilitated the drug crime, through evidence that the firearm was used for protection, was kept near the drugs, or was in close proximity to the defendant during drug transactions." United States v. Sanchez-Garcia, 461 F.3d 939, 946-47 (8th Cir. 2006) (cited cases omitted).
In this case, the facts surrounding movant's § 924(c)(1)(A) charge (Count II) indicate that he possessed firearms during a drug transaction with the accessibility and nexus required byCeballos-Torres and its progeny, including Hamilton. This charges stems from the controlled delivery of pseudoephedrine pills to movant on October 23, 2003, by co-defendant Janet Gunn. On her way to movant's house to deliver the pills, Gunn met movant in his pickup truck and followed him to a third person's residence, where Gunn delivered the pills to movant and received $200 cash in return. Movant directed Gunn to place the pills in the bed of his pickup truck. Shortly thereafter, officers approached the residence to conduct a "knock and talk," and while approaching, observed the pseudoephedrine pills in plain view in the bed of movant's pickup truck. They also noticed a handgun in plain view on the front seat of the truck. During a search of movant's truck, officers recovered the pills, a loaded semi-automatic handgun from the front seat, an empty blister pack which had contained pseudoephedrine, and a fully loaded rifle from behind the driver's seat. See Memorandum and Recommendation at 9-10.
The close proximity and accessibility of the two loaded firearms to movant during the controlled delivery transaction with Gunn serves as sufficient evidence of a factual nexus between the firearms and movant's drug trafficking crime to support a conviction under § 924(c)(1)(A). As a result, the advice of movant's counsel to plead guilty does not constitute ineffective assistance of counsel. See Sparrow, 371 F.3d at 854 (where sufficient evidence existed to support a § 924(c) conviction, advice to plead guilty did not constitute ineffective assistance of counsel). This ground should therefore be dismissed.
Certificate of Appealability .
Motions to vacate, set aside, or correct sentences pursuant to 28 U.S.C. § 2255 filed after April 24, 1996 are subject to the AEDPA's requirement that a movant must obtain a certificate of appealability. See 28 U.S.C. § 2253(c)(1). The Court finds that movant has not made a substantial showing of the denial of a constitutional right, such that reasonable jurists would find the Court's assessment of the constitutional claims debatable, or that the issues presented were adequate to deserve encouragement to proceed further, Miller-El v. Cockrell, 537 U.S. 322, 336 (2003), and therefore this Court will not issue a certificate of appealability. See Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
Conclusion .
For the foregoing reasons, the Court concludes that movant Jimmy Dean Hinson's motion to vacate should be denied in all respects.
Accordingly,
IT IS HEREBY ORDERED that Jimmy Dean Hinson's motion under 28 U.S.C. § 2255, is DENIED. [Doc. 1]
IT IS FURTHER ORDERED that Jimmy Dean Hinson has not made a substantial showing of the denial of a constitutional right, and therefore this Court will not issue a certificate of appealability.
An appropriate judgment will accompany this memorandum and order.