Opinion
Cause No. 1:01-CV-455, (1:99-CR-5)
July 10, 2002
MEMORANDUM OF DECISION AND ORDER
Currently before this Court is a "Petition for Post-Conviction Relief" brought under 28 U.S.C. § 2255 by the petitioner in this case, James Kelham ("Kelham"), against the United States of America ("the government" or "United States") on December 17, 2001. The government responded to Kelham's petition on June 10, 2002. Kelham did not reply. For the following reasons, Kelham's petition for post-conviction relief will be DENIED.
FACTUAL BACKGROUND
On February 3, 1999, a Federal Grand Jury, sitting in the Northern District of Indiana, returned a two count Indictment charging Kelham with distributing methamphetamine on August 29, 1997 (Count 1), and possession with the intent to distribute methamphetamine on September 9, 1997 (Count 2), both counts alleging violations of 21 U.S.C. § 841. On February 8, 1999, Kelham initially appeared before this Court in relation to the February 3, 1999 Indictment. On February 9, 1999, this Court held a detention hearing in the Kelham case and Kelham was arraigned on February 12, 1999. Appointed counsel Randall Hammond represented Kelham at each of these hearings.
On July 6, 1999, Kelham and the government entered into a Plea Agreement whereby Kelham agreed to plead guilty to Count 2. In exchange, the government agreed that Kelham would receive a three point reduction for acceptance of responsibility, be sentenced at the low end of the sentencing guideline range, and that Count 1 would be dismissed. In the Plea Agreement, Kelham also waived his right to appeal his sentence by filing a petition under 28 U.S.C. § 2255. On August 3, 1999, Kelham entered a plea pursuant to this Plea Agreement.
On September 28, 1999, attorney Hammond, by letter to the United States Probation Department, timely raised three objections to the Presentence Investigation Report ("PSI") on Kelham's behalf. Specifically, Kelham objected to (1) the inclusion in the sentencing calculation of approximately 12.5 grams of methamphetamine (the subject of Count 1) and approximately 80 grams of marijuana (possessed along with the methamphetamine that was the subject of Count 2) in addition to the 343.59 grams of methamphetamine that was the subject of Count 2; (2) his receipt of a two level increase under U.S.S.G. § 2D1.1(b)(1) for the possession of seventeen firearms at the time Kelham possessed the methamphetamine that was the subject of Count 2; and (3) his receipt of two criminal history points for a Driving While Intoxicated ("DWI") conviction in Noble County. On July 20, 2000, the United States Probation Department prepared an addendum to the PSI recommending the Court find against Kelham with respect to all three of Kelham's objections.
In or around early December 2000, attorney Hammond negotiated an agreement (the "early December agreement") with the government whereby Kelham would receive a three point reduction for substantial assistance to the authorities pursuant to U.S.S.G. § 5K1.1 and defense would withdraw its three objections to the PSI. A few days prior to sentencing, attorney Hammond and Kelham discussed the sentencing hearing. Hammond indicated that the agreement for the three-level departure was "the best he could do," and that Kelham should withdraw his objections to the PSI, sign the sentencing agreement, and proceed with the sentencing hearing. Kelham accepted Hammond's advice, believing he had no other choice, and did, in fact, sign the sentencing agreement.
On December 11, 2000, attorney Hammond faxed a letter to the United States Probation Department describing the early December agreement and withdrawing the three previously filed objections. On December 15, 2000, the government filed a motion for a three-level "substantial assistance" downward departure, as contemplated by the early December agreement. On December 15, 2000, the Court granted the government's motion for a three-level downward departure and sentenced Kelham to a total term of imprisonment of 78 months. Kelham now files his petition under 28 U.S.C. § 2255, arguing that Hammond's withdrawal of the three objections to the PSI amounted to ineffective assistance of counsel.
DISCUSSION
I. Kelham's Waiver of Appeal and Collateral Attack Rights
In paragraph 12c of his Plea Agreement, Kelham agreed that "the Court has jurisdiction and authority to impose any sentence within the statutory maximum set for his offense. . . . With that understanding, defendant expressly waives his right to appeal his sentence or the manner in which it was determined in any post-conviction proceeding, including, but not limited to, a proceeding under 28 U.S.C. § 2255." Moreover, at his plea hearing, this Court specifically asked Kelham if he understood that he had agreed not to contest any sentence imposed or the manner in which it was determined. Kelham acknowledged that he understood he was waiving his rights to contest his sentence. Thus, Kelham expressly waived his right to bring a section 2255 petition such as the one he has now raised.
Waivers of section 2255 rights are generally enforceable, see Bridgeman v. United States, 229 F.3d 589, 591 (7th Cir. 2000), unless the defendant alleges that the plea was involuntary or brought about through the ineffective assistance of counsel, see Jones v. United States, 167 F.3d 1142, 1145-46 (7th Cir. 1999). Here, Kelham alleges ineffective assistance of counsel with respect to both the Plea Agreement and the early December agreement. However, Kelham only includes one sentence in his brief, conclusively stating that the Plea Agreement was the product of ineffective assistance of counsel. The remainder of Kelham's brief only discusses ineffective assistance of counsel with respect to the early December agreement. Kelham does not set forth any facts indicating that attorney Hammond was in any way deficient in negotiating the Plea Agreement. Indeed, Hammond managed to get the government to agree to a three level reduction for acceptance of responsibility, to recommend the low end of the sentencing guideline range, and to dismiss Count 1. Thus, the Court cannot accept Kelham's unsupported contention that his Plea Agreement was the product of ineffective assistance of counsel.
Kelham's contentions relating to the early December agreement and related withdrawal of the three pending objections to the PSI are insufficient to nullify the appellate waiver. See Mason v. United States, 211 F.3d 1065, 1069 (7th Cir. 2000) (finding waiver of appellate rights enforceable where petitioner was only alleging ineffective assistance of counsel related to his attorney's performance at sentencing and not with respect to the negotiation of the plea). As a result, the Court believes that Kelham's appellate waiver is enforceable. This alone is sufficient to bar Kelham's current petition brought pursuant to 28 U.S.C. § 2255.
II. Ineffective Assistance of Counsel
In addition, Kelham's petition for post-conviction relief can be denied on the basis that Kelham has not sufficiently shown ineffective assistance of counsel. In order to prevail on an ineffective assistance claim, a petitioner must demonstrate (1) that his counsel's conduct was deficient and (2) that this deficiency prejudiced the result of the proceeding. See Strickland v. Washington, 466 U.S. 668, 687 (1984). In assessing the first component, the proper standard is whether the attorney provided "reasonably effective assistance." Id. Kelham must show that his counsel's representation fell below an objective standard of "reasonableness." Id. at 688. Moreover, "a Court must indulge the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689. To establish prejudice, a defendant must also show that there is a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. Id. at 694. Kelham's claim must fail if he cannot satisfy both the deficient performance and prejudice prongs of the Strickland test.
Here, Kelham argues that attorney Hammond was ineffective when he withdrew the three objections to the PSI after negotiating for a three-level downward departure pursuant to U.S.S.G. § 5K1.1. However, as indicated by Strickland, courts should not second guess trial strategy decisions of defense counsel. Here, it could very well be that attorney Hammond's strategy was to use the three objections to the PSI as additional bargaining tools when he negotiated the extent of the substantial assistance departure the government would recommend. Indeed, this appears to be what happened in this case. Thus, the Court is not satisfied that Kelham has shown attorney Hammond's performance to be deficient.
Moreover, the Court does not believe that Kelham has sufficiently shown that any ineffective assistance of counsel actually prejudiced him with respect to the outcome of the sentencing hearing. The only prejudice Kelham alleges is that Hammond's advice kept him from raising the three objections to the PSI. However, this is not sufficient to show prejudice. Rather, a section 2255 petitioner must demonstrate that "attorney errors actually had an adverse effect on the defense." Roe v. Flores-Ortega, 528 U.S. 470, 471 (2000). Thus, in order to prevail on his ineffective assistance claim, Kelham must show that he would have actually benefitted from maintaining the three pending objections to the PSI. This he cannot do.
With respect to the first objection — that the district court should not consider quantities of drugs that are not specified in the count of conviction — Kelham's contentions are clearly contradictory to settled law. U.S.S.G. § 1B1.3(a)(2) authorizes a district court to consider "all acts or omissions . . . that were part of the same course of conduct or common scheme or plan as the offense of conviction," in determining the base offense level. The Seventh Circuit has specifically stated that quantities of drugs not specified in the count of conviction, but part of the same "common scheme or plan," may be considered in calculating the base offense level. See United States v. Huerta, 239 F.3d 865, 875 (7th Cir. 2001). Here, Kelham sold the additional 12.5 grams of methamphetamine to an undercover officer less than a month before the 300 plus grams of methamphetamine were discovered at Kelham's residence. Moreover, the 80 grams of marijuana, though not specifically mentioned in the Indictment, were found at Kelham's residence with the methamphetamine that was the subject of Count 2. Therefore, it appears that the additional quantities of drugs were part of a "common scheme or plan" to distribute narcotics. The relevant conduct objection would likely not succeed.
With respect to Kelham's objection to the enhancement for possession of a firearm under U.S.S.G. § 2D1.1(b)(1), Kelham's position was clearly incorrect. U.S.S.G. § 2D1.1(b)(1) specifically authorizes a two-level enhancement if a dangerous weapon was possessed in the course of the offense of conviction. Here, Kelham possessed seventeen weapons, including handguns, shotguns, and rifles, at his residence where he stored large amounts of narcotics. Many of these weapons were loaded. As a result, Kelham's objection to the enhancement for possessing a firearm would probably not have been successful.
Finally, Kelham's third objection — to the addition of three criminal history points for the Noble County DWI conviction — also appears to be without merit. Application Note 10 to U.S.S.G. § 4A1.2 makes clear that convictions set aside for reasons unrelated to innocence or error of law are to be counted in the criminal history calculation. The Noble County DWI conviction was set aside so Kelham could recover his driving privileges. Thus, it should have been included in his criminal history calculation. As a result, Kelham's third objection was also likely to fail.
Because it does not appear that Kelham would have actually benefitted from attorney Hammond pursuing these three objections to the PSI, Kelham has not sufficiently shown that he was prejudiced by Hammond's actions. In addition, as noted above, the Court is not satisfied that Kelham has shown Hammond's actions to be objectively unreasonable. Therefore, Kelham's ineffective assistance of counsel claim must fail.
CONCLUSION
Based on the foregoing, Kelham's petition for post-conviction relief pursuant to 28 U.S.C. § 2255 is hereby DENIED.