Opinion
Criminal No. 00-213(1) (JRT/FLN), Civil No. 02-682 (JRT).
July 1, 2003.
Osman Karriem, Federal Prison Camp, Lompoc, CA, Pro se.
Eric P. Johnson, Assistant United States Attorney, Office of the United State Attorney, Minneapolis, Minnesota, Attorney for Respondent.
MEMORANDUM OPINION AND ORDER DENYING § 2255 HABEAS CORPUS RELIEF
Petitioner Osman Karriem ("Karriem") is serving a prison sentence of 120 months after having pleaded guilty to conspiracy to distribute and possess with intent to distribute between 5,000 and 15,000 grams of cocaine, in violation of 21 U.S.C. § 841 (b)(1)(A) and 846. This matter is now before the Court on Karriem's petition for habeas corpus relief pursuant to 28 U.S.C. § 2255 and his motion for appointment of counsel. For the reasons discussed below, the Court denies Karriem's petition.
Karriem has also submitted a "Motion to Order Immediate Release." This document contains the same substantive allegations as Karriem's § 2255 motion, and the Court will therefore consider it as part of his § 2255 filing.
BACKGROUND
On July 10, 2000, Karriem was arrested in California following an investigation that connected him to drug dealing activities dating back to 1998. On October 13, 2000, Karriem pleaded guilty to one count of conspiracy to possess with the intent to distribute between 5,000 and 15,000 grams of cocaine from June 15, 1998 through June 2000. Karriem's attorney at the time was Craig Cascarano ("Cascarano"). As part of his plea agreement, Karriem waived the right to appeal or collaterally challenge his sentence. On March 8, 2001, after the plea but before Karriem's sentencing, Barry Voss ("Voss") replaced Cascarano as Karriem's attorney. On April 6, 2001, Karriem was sentenced to 120 months imprisonment. Karriem filed the present § 2255 petition on March 18, 2002. He filed his "motion for immediate release" on May 8, 2002.
ANALYSIS
Karriem's petition contains a variety of allegations, many of which revolve around the Court's denial of his earlier motions to suppress certain evidence. These allegations are collateral attacks upon his conviction. As such, they were waived by Karriem's plea agreement and are not properly before this Court. Karriem's § 2255 petition also alleges that he received ineffective assistance of counsel from Cascarano and Voss. These are also collateral attacks on the sentence, but they will not be barred if Karriem demonstrates that counsel's ineffectiveness undermined the knowing and voluntary nature of the waiver. See Hill v. Lockhart, 474 U.S. 52, 57-57 (1985); Tollett v. Henderson, 411 U.S. 258, 267 (1973); DeRoo v. United States, 223 F.3d 919, 923-24 (8th Cir. 2000). Therefore, the Court must examine whether Karriem establishes a claim of ineffective assistance of counsel.
In order to prevail on a claim of ineffective assistance of counsel, Karriem must show that: (1) counsel's performance was deficient, and (2) he was prejudiced by that deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984). When evaluating the first prong, the Court must "indulge a strong presumption" that counsel performed as a reasonably competent attorney. Id. at 689. See DeRoo, 223 F.3d at 925 ("A defendant faces a heavy burden to establish ineffective assistance of counsel pursuant to section 2255.") (citation omitted). Karriem has the burden of showing that counsel's performance "fell below an objective standard of reasonableness," and was not within the range of competence demanded of attorneys in criminal cases. Strickland, 466 U.S. at 689. See Hill, 474 U.S. at 58; Tollett, 411 U.S. at 266. To establish the second prong, Karriem must show "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 370. See Strickland, 466 U.S. at 694.
A. Cascarano
The bulk of Karriem's allegations of ineffective assistance of counsel relate to Cascarano. The most serious allegations are of conflict of interest. Specifically, Karriem accuses Cascarano of colluding with the Assistant United States Attorney to force Karriem's guilty plea. Karriem also claims that Cascarano did not adequately discuss the contents of the plea agreement.
The Court first addresses Karriem's allegations of conflict of interest. The Sixth Amendment right to effective assistance of counsel encompasses the attorney's duty of loyalty to the client and the duty to avoid conflicts of interest. See United States v. Magini, 973 F.2d 261, 263 (4th Cir. 1992). Karriem claims that Cascarano colluded with the Assistant United States Attorney prosecuting the case to coerce Karriem to plead guilty. If true, this would be a significant violation of an attorney's duty to his client. To sustain such an allegation, Karriem must rely on more than speculation or accusation. However, he offers nothing beyond unsubstantiated conclusions to support his theories of conspiracy. In the absence of evidence to support these accusations, the Court cannot find that Cascarano's performance suffered from any actual conflict of interest.
Some courts have interpreted the U.S. Supreme Court's decision in Cuyler v. Sullivan, 446 U.S. 335 (1980), to mean that defendants alleging conflict of interest by counsel need never show prejudice. See, e.g., United States v. Magini, 973 F.2d 261, 263 (4th Cir. 1992). The Eighth Circuit recently noted, however, that Cuyler dealt with representation of multiple clients, and that it remains an "open question" whether defendants in other types of conflict of interest cases must show prejudice. See Wemark v. Iowa, 322 F.3d 1018, 1021 (8th Cir. 2003). Because Karriem has not established that Cascarano's performance suffered from any actual conflict of interest, the Court need not address this issue of prejudice.
The Court next considers Karriem's claim that Cascarano did not adequately discuss the contents of the plea agreement, and that he coerced Karriem into pleading guilty. Karriem's central allegation is that Cascarano convinced him to sign the plea agreement, which provided that Karriem would plead guilty to conspiracy and possession involving between 5,000 and 15,000 grams of powder cocaine, even though the indictment charged him with "at least 500 grams" of cocaine. Karriem claims that he did not want to sign the agreement, but that he relented because Cascarano's "attitude brought a nolo contendere mindset" upon him. (Reply at 3.) After thoroughly examining the record, the Court finds that Cascarano's performance in this regard was not deficient. Karriem argues that Cascarano did not sufficiently review the plea agreement and that he "had no time to read the plea agreement or understand it." (Reply at 2.) However, Karriem also states that he knew the drug range provided for in the agreement, and that he challenged his attorney about it. (See id.) This undermines Karriem's claim that he was ignorant about what was in the agreement; it suggests that he knew what was in agreement but was simply not pleased with it. That Karriem ultimately accepted his lawyer's advice to plead guilty does not render the plea unknowing or involuntary, nor does it render Cascarano's advice deficient. When presuming, as the Court must, that Cascarano performed competently, the Court finds it equally (if not more) plausible that Cascarano merely advised Karriem that signing the plea agreement was in his best interest, given the case against him. Even if this advice was ultimately wrong, this does not mean it was deficient. Because the Court has found that Cascarano's performance was not deficient, it need not proceed with a prejudice analysis.
Karriem did not plead nolo contendere, but guilty.
Karriem's petition suggests that the indictment and the plea agreement are inconsistent, but they plainly are not. The indictment simply established a minimum amount of cocaine for which Karriem was charged, not a maximum. The plea agreement, for sentencing purposes, described a category in which the actual amount of cocaine for which Karriem was charged fell. When Karriem was arrested, officers seized 1,571 grams of cocaine.
II. Voss
In his reply brief, Karriem for the first time claims that Voss was also ineffective. Voss replaced Cascarano as Karriem's attorney after Karriem pleaded guilty, but nearly one month before Karriem's sentencing. The Court finds that Karriem's allegations against Voss contradict Karriem's other allegations, and are completely without support. Karriem first argues that it was only through Voss's representation he learned how ineffective Cascarano was. (See Reply at 3.) Later, however, Karriem argues that Voss was ineffective because he instructed Karriem not to inform the Court at sentencing that he intended to appeal the sentence. (Id. at 5.) These allegations do not satisfy the first Strickland prong, because Karriem has not shown that Voss's alleged advice was beyond the range of competence for attorneys. See Strickland, 466 U.S. at 689. If Voss did know that Karriem was planning to appeal, he may have been acting in Karriem's best interest by telling him to keep the plan to himself. This is because in agreeing to the plea bargain, Karriem agreed that he would not appeal his sentence. If Karriem told the Court at sentencing that he planned to appeal, the Court may have found that Karriem planned not to honor the plea agreement, and would have rejected it. This could have led to a trial, conviction, and harsher sentence for Karriem. The record does not reveal whether Voss fully explained all these implications to Karriem. Nevertheless, the Court cannot conclude that Voss's alleged advice to Karriem was beyond the range of competence or was deficient considering the deference that must be accorded to counsel's strategic decisions. See id. at 491 (explaining the deference accorded to attorneys' reasonable strategic decisions). Because Karriem cannot show that Voss's performance was deficient, Karriem's claims of ineffectiveness against Voss also fail.
The Court finds that the files and records in this case conclusively show that Karriem is not entitled to relief upon his habeas corpus petition. Therefore, the Court finds that no evidentiary hearing is needed, and that Karriem's § 2255 petition should be dismissed.
Because the Court determines that Karriem's § 2255 motion must be dismissed, his motion for appointment of counsel is moot.
ORDER
Based on the foregoing, all the records, files, and proceedings herein, IT IS HEREBY ORDERED that:1. Petitioner's "Motion to Terminate Judgment and Dismiss Judgment of Conviction Pursuant to Rule 2255 Habeas Corpus Act" [Docket No. 103] is DISMISSED WITH PREJUDICE.
2. Petitioner's "Motion for Immediate Release" [Docket No. 104] is DENIED.
3. Petitioner's Motion for Appointment of Counsel [Docket No. 105] is DENIED AS MOOT.