Opinion
Case No. 03-71215, 99-80241.
July 14, 2003.
OPINION
On March 27, 2003, petitioner filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. For the reasons set forth below, the petition is denied.
Background
On January 25, 2000, petitioner was convicted after a jury trial of conspiring to possess with intent to distribute and to distribute controlled substances in violation of 21 U.S.C. § 841 and 846, and for conspiracy to launder monetary instruments in violation of 18 U.S.C. § 1956 (h). Petitioner appealed his conviction and sentence, both of which were affirmed by the Sixth Circuit Court of Appeals.
Standard of Review
Petitioners are entitled to relief under 28 U.S.C. § 2255 "[i]f the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." In order to prevail as to alleged constitutional errors, petitioner must establish "an error of constitutional magnitude which had a substantial and injurious effect or influence on the proceedings." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (citation omitted). Where the § 2255 motion alleges a non-constitutional error, petitioner must establish a ""fundamental defect which inherently results in a complete miscarriage of justice, ' or, an error so egregious that it amounts to a violation of due process." Id. (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990)).
Discussion
Petitioner raises four claims in his § 2255 motion:
1. The district court's decision in denying defendant's motion to suppress wiretap evidence was clearly erroneous and it's [sic] admission at trial was a violation of defendant's fourth amendment right against unreasonable search and seizure.
2. Trial counsel denied the appellant effective assistance of counsel by inadequately investigating facts pertaining to petitioner's arrest, by failing to move for severance, and by failing to hire an expert Spanish translator.
3. The defendant was deprived of his constitutional rights to have the disclosure of the confidential witnesses produced for trial and therefore the conviction was obtained by the unconstitutional failure of the prosecution to disclose to the defendant evidence favorable to him.
4. The district court's finding by a preponderance of the evidence that the defendant was responsible for 3-10 kilograms of heroin and that his role was that of a supervisor in the drug conspiracy was clearly erroneous.
None of petitioner's claims have merit.
a. Fourth Amendment Claims
Petitioner challenges evidence obtained through the use of an allegedly illegal wiretap. Petitioner asserts that the warrant was deficient because "the government's allegation of probable cause were [sic] based upon the assertions of a confidential informant (C-l) whose veracity was not supported." (Pet.'s Mem. in Supp. at 2). This court held an evidentiary hearing on January 4, 2000, and rejected petitioner's claim that the wiretap was not supported by probable cause. (See Pet. Exh. E, Tr. of Hr'g). This issue was also raised and rejected by the Sixth Circuit on direct appeal. The Sixth Circuit found that the information provided by the informant was corroborated and that "[a]lthough the evidence presented to the judge in this case might not have been enough to convict [petitioner], it was sufficient to support the issuance of a wiretap on [petitioner]'s phone." United States v. Rodriguez, 38 Fed. Appx. 244, 248, 2002 WL 486392, at *2 (6th Cir. 2002).
Absent highly exceptional circumstances, such as a change in law, a § 2255 motion may not be utilized to relitigate issues raised on direct appeal. DuPont v. United States, 76 F.3d 108, 110-111 (6th Cir. 1996). Because the issue of whether the wiretap warrant was supported by probable cause was litigated on direct appeal, the Court will not consider this claim further.
Petitioner also challenges an "automobile stop" arguing that his consent to the search of his car was involuntary. (Mem. in Supp. at 8-9). This argument was also rejected by the Sixth Circuit on direct appeal. United States v. Rodriguez, 38 Fed. Appx. at 249, 2002 WL 486392, at * 3. Thus, the Court will not consider this claim now.
b. Ineffective Assistance of Counsel Claims
Petitioner argues that his counsel was ineffective by failing to adequately investigate facts pertaining to petitioner's arrest, by failing to move for severance, and by failing to hire a Spanish translator. (Mem. in Supp. at 11).
There are two parts to an ineffective assistance of counsel claim: "First, the defendant must show that counsel's performance was deficient." Strickland v. Washington, 466 U.S. 668, 687 (1984). "Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. Courts may determine whether a defendant was prejudiced by allegedly ineffective counsel before they make a determination as to whether counsel was deficient. Strickland, 466 U.S. at 697.
First, petitioner argues that his counsel failed to investigate "the facts in relation to the wiretaps and the money transferring receipts presented by the Government" and "the alternative defense." (Mem. in Supp. at 14). Petitioner has not alleged that these "deficiencies' on the part of counsel prejudiced him. Further, petitioner has failed to articulate what facts would have been revealed by further investigation and how these facts would have aided his defense. Similarly, petitioner has also failed to identify the "alternative defense' he believes should have been investigated. Because petitioner has not met his burden of establishing a deficiency or prejudice as a result of his counsel's failure to investigate, this claim must fail.
Next, petitioner claims that his trial counsel was ineffective for failing to request a severance. (Mem. in Supp. at 14). With respect to this claim, petitioner argues that "the proof against the defendant's co-defendant prejudiced the defendant and denied defendant of his constitutional right to a fair trial." (Mem. in Supp. at 14).
Federal Rule of Criminal Procedure 8(b) permits defendants to be charged together "if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions, constituting an offense or offenses." Although joint trials are preferred because they promote efficiency, if a joint trial "appears to prejudice a defendant, " Federal Rule of Criminal Procedure 14 permits a court to "sever the defendants' trials, or provide any other relief that justice requires." FED.R.CRIM.P. 14(a). Defendants must show "substantial, undue, or compelling prejudice" to obtain a severance. United States v. Mays, 69 F.3d 116, 120 (6th Cir. 1995) (quoting United States v. DeFranco, 30 F.3d 664, 669-670 (6th Cir. 1994)).
Petitioner has failed to allege any facts indicating that he would have been entitled to a severance. Instead, his conclusory claim is that "the proof against the defendant's co-defendant prejudiced the defendant." (Mem. in Supp. at 14). "A defendant is not entitled to a severance simply because the proof is greater against a co-defendant... [w]hen a defendant seeks a severance, he has a heavy burden of showing specific and compelling prejudice." United States v. Harris, 9 F.3d 493,500 (6th Cir. 1993) (citations omitted). Not only has petitioner failed to establish that counsel was deficient in not moving for severance, he has failed to demonstrate specifically how this alleged deficiency prejudiced him. Thus, petitioner's ineffective assistance of counsel claim based on counsel's failure to move for severance is without merit.
Lastly, petitioner claims that counsel was ineffective for failing "to hire an expert in the field of Spanish language" and for participating in a "bar conference" and "ex-parte communication...in regards to the matter of revealing the Confidential Informant." (Mem. in Supp. at 14-15). Petitioner alleges that he was not informed of the contents of these communications. In order to satisfy the prejudice component of an ineffective assistance of counsel claim, petitioner "must show that 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. Petitioner has failed to make such a showing with respect to these claims.
c. Failure to Disclose Confidential Witnesses
Petitioner argues that he had a right to the disclosure of confidential witnesses produced for trial. However, petitioner did not raise this claim on direct appeal. "In a section 2255 federal habeas motion, a movant may not raise claims that were not presented on direct appeal unless he can show cause excusing his failure to raise the issues previously and actual prejudice resulting from the errors." Cross v. United States, 893 F.2d 1287, 1289 (11th Cir. 1990) (citation omitted). Petitioner has failed to show cause as to why he did not raise this claim on direct appeal; therefore, this claim fails as a matter of law. See United States v. Frady, 456 U.S. 152, 164-165 (1982)("Once the defendant's chance to appeal has been waived or exhausted, however, we are entitled to presume he stands fairly and finally convicted, especially when, as here, he already has had a fair opportunity to present his federal claims to a federal forum. Our trial and appellate procedures are not so unreliable that we may not afford their completed operation any binding effect beyond the next in a series of endless postconviction collateral attacks. To the contrary, a final judgment commands respect. For this reason, we have long and consistently affirmed that a collateral challenge may not do service for an appeal.") (emphasis added).
d. Sentencing
Petitioner argues that this Court's finding at sentencing that he was responsible for at least three kilograms of heroin was clearly erroneous. This argument was considered and rejected by the Sixth Circuit on direct appeal, the Court will not revisit the issue now. United States v. Rodriguez, 38 Fed. Appx. 244, 252, 2002 WL 486392, at *6 ("[Witness]'s testimony was sufficient to support the district court's findings as to both the quantity of drugs and [petitioner]'s role in the offense.")
Conclusion
For the reasons stated above, petitioner's § 2255 motion is denied. Under 28 U.S.C. § 2255, petitioner is entitled to a hearing, "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief" In this case, petitioner's Fourth Amendment and sentencing claims fail because these claims were addressed by the Sixth Circuit on direct appeal. Petitioner's failure to disclose confidential witnesses claim fails because petitioner did not raise this claim on direct appeal and he has not alleged cause as to why he failed to do so. Petitioner's remaining claim, ineffective assistance of counsel, is unsupported by any specific facts. Under these circumstances, the Court is satisfied that the record in this case conclusively shows that petitioner is entitled to no relief Thus, no hearing will be held in this case. A judgment consistent with this opinion shall issue.
JUDGMENT At a session of said court, held in U.S. District Courthouse, City of Detroit, County of Wayne, State of Michigan, on July 14, 2003 PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE On March 27, 2003, petitioner filed a petition under 28 U.S.C. § 2255 to vacate, set aside, or correct sentence by a person in federal custody. For the reasons set forth in an opinion issued this date,IT IS ORDERED, ADJUDGED, AND DECREED that Petitioner's § 2255 petition is DENIED, and the petition is DISMISSED.