Opinion
Criminal Case No. 00-50073, Civil Case No. 04-40045.
August 19, 2004
JUDGMENT
The above entitled matter having come before the Court on a motion to vacate sentence pursuant to 28 U.S.C. § 2255, the Honorable Paul V. Gadola presiding, the issues having been fully presented, the Court being fully advised in the premises, and a ruling having been duly rendered, IT IS ORDERED AND ADJUDGED that Petitioner is entitled to NO RELIEF and that this action be, and the same hereby is, DISMISSED WITH PREJUDICE.
OPINION AND ORDER DENYING PETITIONER'S MOTION TO VACATE SENTENCE
Before the Court is Petitioner's motion to vacate his sentence pursuant to 28 U.S.C. § 2255. When, as in this case, the records and files of a case determinatively establish that a petitioner is not entitled to relief, the law does not require, and this Court will not order, an evidentiary hearing for a § 2255 motion. For the reasons set forth below, the Court will deny Petitioner's motion.I. BACKGROUND
After Petitioner pled guilty (pursuant to a Rule 11 plea agreement) to possessing, with the intent to distribute, at least fifty grams of cocaine base in violation of 21 U.S.C. § 841(a)(1), the Court sentenced Petitioner to 204 months of imprisonment and ten years of supervised release on October 9, 2001. Petitioner appealed his sentence, and the United States Court of Appeals for the Sixth Circuit affirmed on July 9, 2003.See United States v. Ross, 69 Fed. Appx. 710, 712-13 (6th Cir. 2003).
Petitioner filed his § 2255 motion on February 9, 2004. The Government filed a response on February 27, 2004. Petitioner filed amendments to his § 2255 motion on March 29, 2004, and on April 12, 2004. The Government filed a further response on April 14, 2004, and Petitioner filed a reply brief on April 26, 2004. The Court will generously consider the additional claims raised in Petitioner's two amendments to his § 2255 motion.
II. LEGAL STANDARD
To obtain relief pursuant to § 2255, a petitioner must establish any one of the following: (1) his sentence was imposed in violation of the Constitution or federal law; (2) the Court lacked jurisdiction to impose such a sentence; (3) the sentence exceeded the maximum allowed by law; or (4) his sentence is otherwise subject to collateral attack. See 28 U.S.C. § 2255.
Among Petitioner's § 2255 claims are allegations of ineffective assistance of counsel. To establish that counsel was ineffective, a petitioner must prove that (1) "counsel's performance was deficient" and (2) "counsel's errors were so serious as to deprive the [petitioner] of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687 (1984). A strong presumption exists that counsel afforded the defendant reasonable professional assistance, and "[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight." Id. at 689.
To satisfy the second prong of the Strickland test, a 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694. Therefore, "an ineffective-assistance-of-counsel claim cannot survive so long as the decisions of a defendant's trial counsel were reasonable, even if mistaken." Moss v. Hofbauer, 286 F.3d 851, 859 (6th Cir. 2002) (quoting Campbell v. Coyle, 260 F.3d 531, 551 (6th Cir. 2001)).
III. ANALYSIS
A. Presentence Report
First, Petitioner contends that counsel rendered ineffective assistance by failing to object to the Court's failure to comply with Rule 32(i)(1)(A) of the Federal Rules of Criminal Procedure, which requires the Court to verify that a defendant and his counsel have read and discussed the presentence report. See Pet'r Mot. Br. at 6-7. Petitioner's contention is devoid of merit. The sentencing transcript explicitly shows that, in response to the Court's inquiries, Petitioner and his counsel unequivocally informed the Court that each read and reviewed the presentence report and that each fully reviewed and discussed the report with each other. See Sent. Tr. (Oct. 9, 2001) at 3-4. Consequently, counsel's performance was not deficient, and Petitioner is not entitled to relief on this claim. See Strickland, 466 U.S. at 687.
As Petitioner is a pro se litigant, the Court declines the Government's invitation to sanction him for bringing this claim.
B. Sentencing Guideline Range
Next, Petitioner raises a morass of issues concerning his sentencing guideline range, which the Court will address together — but first, some additional background is necessary.
Initially, due to his two prior felony drug convictions (one in Michigan state court and the other in Texas state court) and the quantity of cocaine base at issue (more than fifty grams), Petitioner was facing a life sentence. See 21 U.S.C. § 841(b)(1)(A). However, pursuant to the Rule 11 plea agreement, the Government withdrew the initial penalty enhancement information, which specified both prior felony drug convictions, and filed an amended penalty enhancement information specifying only one prior felony drug conviction, the Texas conviction.See Plea Agmnt. at ¶ 1.D; Amend. Penalty Enhanc. Info. at 1. Consequently, Petitioner's statutory minimum sentence was reduced to 240 months. See id. Absent the statutory minimum, Defendant's guideline range would have been 151-188 months, according to the presentence report. Present. Rep. at ¶¶ 55-56, 58. Additionally, upon the Government's motion and recommendation, the Court granted a thirty-six-month downward departure due to Petitioner's substantial assistance to the Government. See 18 U.S.C. § 3553(e).
At sentencing, Petitioner's counsel practically begged the Court to not impose a sentence over 188 months, the top of the guideline range that would have applied in the absence of the 240-month statutory minimum. See Sent. Tr. (Oct. 9, 2001) at 13-18. More specifically, as summarized by the Sixth Circuit, Petitioner's counsel was asking the Court to use the 151-188-month range, rather than the statutory minimum, as the starting point for the downward departure. See Ross, 69 Fed. Appx. at 712. In essence, Petitioner's counsel was asking the Court to ignore the statutory minimum.
After allowing Petitioner's counsel to speak his mind, the Court asked the Government for its comments, which it provided.See id. at 18-19. Then, the Court ruled that, due to the statutory minimum, the correct guideline range became 240 months.See U.S.S.G. 5G1.1(b); Sent. Tr. (Oct. 9, 2001) at 13-15, 24-29; Present. Rep. at ¶¶ 55-56, 58. As a consequence, the Court applied the thirty-six-month downward departure to the statutory minimum resulting in a sentence of 204 months. The Sixth Circuit explicitly upheld the Court's decision to use the statutory minimum as the starting point for the downward departure. See Ross, 69 Fed. Appx. at 713 (citing United States v. Stewart, 306 F.3d 295, 332 (6th Cir. 2002)).
Further, according to Petitioner, his counsel and the Government entered into an oral agreement about the parties' conduct at the sentencing hearing. Under this supposed agreement, the Government agreed to remain silent and not object to his counsel's request that the Court not impose a sentence over 188 months, and, in return, Petitioner's counsel agreed to not request a sentence below 151 months, the bottom of the guideline range that would have applied but for the statutory minimum.See Sent. Tr. (Oct. 10, 2001) at 4; Pet'r Mot. Br. at 3-6. The Government disputes the existence of this agreement. See Sent. Tr. (Oct. 10, 2001) at 6-8; Gov't Resp. Br. at 3. On direct appeal, Petitioner argued that the Government breached this supposed agreement when it offered its comments as mentioned in the preceding paragraph. See Sent. Tr. (Oct. 9, 2001) at 18-19. The Sixth Circuit rejected this argument because, even if the agreement existed, the agreement was breached first by Petitioner's counsel when he asked the Court to impose a sentence below 151 months, see id. at 13, ln. 17-18, and thereby relieved the Government of any reciprocal obligations to remain silent. See Ross, 69 Fed. Appx. at 713 (citing United States v. Skidmore, 998 F.2d 372, 375 (6th Cir. 1993)).
Now, in his § 2255 motion and his first amendment to his § 2255 motion, Petitioner argues that his counsel rendered ineffective assistance (1) by failing to object to the Government's breach of this supposed agreement, (2) by neglecting to memorialize this supposed agreement, and, alternatively, (3) by breaching this supposed agreement himself as discussed in the preceding paragraph. See Pet'r Mot. Br. at 4-6; Pet'r Amend. (Mar. 29, 2004) at 3-7.
With respect to the first argument, the Sixth Circuit has already ruled that the Government did not commit a breach. See Ross, 69 Fed. Appx. at 713. Thus, objecting in the manner suggested by Petitioner would have been futile, and counsel is not required to raise futile objections. See Spooner v. Jackson, 321 F. Supp. 2d 867, 871-72 (E.D. Mich. 2004) (Gadola, J.); Fairley v. United States, 298 F. Supp. 2d 679, 685 (E.D. Mich. 2004) (Gadola, J.); Jackson v. United States, 248 F. Supp. 2d 652, 657 (E.D. Mich. 2003) (Gadola, J.). Accordingly, even if this supposed agreement existed, Petitioner counsel's performance was not deficient in this regard. See Strickland, 466 U.S. at 687.
More important, with respect to all three arguments, Petitioner cannot show any prejudice — i.e., a reasonable probability that the result of the proceeding would have been different. See id. at 694. That is, even if the agreement existed and even if counsel erred in one or more of the three ways discussed above (failing to object to the Government's alleged breach, neglecting to memorialize the agreement, and/or breaching the agreement himself), the result of the proceeding would have been the same: the Court would not have used the 151-188-month range because there was an applicable statutory minimum of 240 months. See U.S.S.G. 5G1.1(b); Sent. Tr. (Oct. 9, 2001) at 13-15, 24-29; Present. Rep. at ¶¶ 55-56, 58. Therefore, due to the lack of prejudice, Petitioner is not entitled to relief on these claims. See Strickland, 466 U.S. at 687, 694.
In addition, Petitioner makes a vague and undeveloped claim in his first amendment to his § 2255 motion that somehow his guilty plea was not made knowingly and voluntarily as a result of the Government's breach or his counsel's breach of the aforementioned sentencing agreement and that somehow Petitioner's counsel was thus ineffective with respect to the handling of the Rule 11 plea agreement. See Pet'r Amend. (Mar. 29, 2004) at 4; see also Pet'r Reply Br. at 2. The Rule 11 plea agreement was executed in April 2001, and Petitioner pled guilty on April 18, 2001. The subsequent agreement regarding the parties' conduct at the sentencing hearing, if it existed, was entered into on October 9, 2004, see Sent. Tr. (Oct. 10, 2001) at 3, ln. 24, which was long after the Rule 11 plea agreement was signed and Petitioner pled guilty. Thus, contrary to Petitioner's assertions, the alleged violations of the supposed October 9 agreement did not impact upon his earlier plea agreement and decision to plead guilty; in other words, the reasons advanced by Petitioner do not establish that his plea was involuntary or somehow constitutionally deficient. See Hill v. Lockhart, 474 U.S. 52, 56 (1985); Spooner, 321 F. Supp. 2d at 869. Further, Petitioner has not shown (or even alleged) that, but for some error by his counsel, there is a reasonable probability he would not have pled guilty and would have insisted on going to trial. See Smith v. United States, 348 F.3d 545, 551 (6th Cir. 2003) (quoting Hill, 474 U.S. at 59); Spooner, 321 F. Supp. 2d at 869-71. For these reasons, this claim lacks merit.
The Court notes that, had Petitioner going to trial and lost, he would have faced a statutory minimum sentence of life in prison given his two prior felony drug convictions and the quantity of cocaine base at issue. See 21 U.S.C. § 841(b)(1)(A).
C. Prior Felony Convictions
Lastly, in his second amendment to his § 2255 motion, Petitioner claims that his federal sentence is invalid because it was based in part on two prior felony drug convictions both of which he is now seeking to collaterally attack in separate proceedings. See Pet'r Amend. (Apr. 12, 2004) at 1-2.
However, his prior felony drug conviction in Michigan state court did not influence his sentence in this case. As stated above, pursuant to the Rule 11 plea agreement, the Government withdrew the initial penalty enhancement information, which specified both prior felony drug convictions, and filed an amended penalty enhancement information specifying only Petitioner's prior felony drug conviction in Texas state court. See Plea Agmnt. at ¶ 1.D; Amend. Penalty Enhanc. Info. at 1. Further, although the Michigan conviction was used in the determination of the 151-188-month guideline range, that range, as discussed above, was overridden by the statutory minimum. Consequently, Petitioner's claim regarding the prior Michigan conviction is meritless.
Petitioner's claim regarding the Texas conviction must also be rejected. In his plea agreement and its accompanying worksheets, Petitioner stipulated to the use of his Texas conviction in the determination of his sentence in this case. See Plea Agmnt. at ¶ 1.C, ¶ 3, Worksheet C. Moreover, in the plea agreement, Petitioner also agreed not to challenge his stipulation concerning the Texas conviction; specifically, he stated: "[Petitioner] agrees not to appeal or otherwise challenge in any proceeding the accuracy of any factor stipulated to in this agreement or the attached worksheets." Id. at ¶ 5 (emphasis added). Thus, his stipulations and his waiver were part of his bargain in the plea agreement. Under the circumstances in this case, Petitioner's waiver is enforceable, and it vitiates his present claim concerning the Texas conviction. See United States v. Sykes, 292 F.3d 495, 500 (6th Cir. 2002); Davila v. United States, 258 F.3d 448, 450-51 (6th Cir. 2001); United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001); United States v. Bazzi, 94 F.3d 1025, 1028 (6th Cir. 1996); Fairley, 298 F. Supp. 2d at 681-82.
Note that, even if the Michigan conviction was deemed to have influenced Petitioner's sentence, the above analysis of the Texas conviction would apply to the Michigan conviction. See Plea Agmnt. at ¶ 3, ¶ 5, Worksheet C.
IV. CONCLUSION
Therefore, after careful consideration of each of Petitioner's claims, the Court concludes that Petitioner is not entitled to the relief he seeks under § 2255.
ACCORDINGLY, IT IS HEREBY ORDERED that Petitioner's motion to vacate sentence pursuant to 28 U.S.C. § 2255 [docket entry 77] is DENIED and this action is DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED that if Petitioner desires to seek a certificate of appealability ("COA"), Petitioner may file a MOTION for a COA within TWENTY-ONE (21) DAYS of filing a notice of appeal and shall support this motion with an appropriate brief, both of which shall comply with the Local Rules of this Court. See Castro v. United States, 310 F.3d 900, 903 (6th Cir. 2002) ("We do encourage petitioners as a matter of prudence to move for a COA at their earliest opportunity so that they can exercise their right to explain their argument for issuance of a COA." (emphasis added)). The Government may file a response with an appropriate brief, both of which shall comply with the Local Rules, within FOURTEEN (14) DAYS of service of Petitioner's motion for a COA.
SO ORDERED.