Opinion
Case No. 1:01 CV 01786, (1:99 CR 009)
September 7, 2001
MEMORANDUM OF OPINION AND ORDER
Petitioner Archie E. Shaffner has filed a motion to vacate or set aside, or correct sentence pursuant to 28 U.S.C. § 2255 ( ECF No. 1). For the following reasons, the Motion is DENIED.
On January 13, 1999, Petitioner was indicted in case number 1:99CR009 and charged with four counts. Count one was conspiracy to possess with the intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1), (b)(1)(A), and 21 U.S.C. § 846. Count two was knowingly and intentionally possessing with intent to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and (b)(1)(C). Counts three and four concerned being a felon in possession of several firearms in violation of 18 U.S.C. § 922 (g)(1). The indictment also sought criminal forfeiture of Shaffner's 1998 Chevy Astro van and the firearms.
On April 5, 1999, pursuant to a written plea agreement, Petitioner entered pleas of guilty to counts one and three. The Plea Agreement included a provision acknowledging that Petitioner waived his right to appeal his conviction and/or sentence and his right to file post-conviction petitions for collateral relief. Plea Agreement at ¶ 21. In addition, the Plea Agreement recognized that Defendant was a career offender and that as a result, his adjusted base offense level would be 32. Id. at ¶ 9.
Petitioner's status as a career offender stemmed from two prior felony drug convictions. On November 12, 1988, and January 21, 1989, Petitioner sold approximately 30.2 grams of cocaine to an undercover agent of the Westshore Enforcement Bureau. On July 24, 1989, a Cuyahoga County grand jury indicted Petitioner for two counts of aggravated trafficking (case number CR241929). On August 27, 1989, police officers from the Brooklyn Narcotics Unit executed a warrant for Petitioner's arrest. While executing the warrant, officers discovered 71 grams of cocaine on Petitioner's person. The officers also discovered several firearms and ten grams of marijuana in Petitioner's van and residence. The drugs and weapons discovered on August 27, 1989, led the state to charge Petitioner with aggravated trafficking (3X bulk), aggravated trafficking, possession of criminal tools, and possessing weapons under a disability (case number CR243412). On November 7, 1989, Petitioner appeared before Judge McMonagle to answer to the charges in case number CR241929 and case number CR243412. In case number CR243929, Petitioner pled guilty to one count of trafficking drugs and the state dismissed the remaining count. In the other case, case number CR243412, Petitioner pled guilty to one count of trafficking in drugs and the state dismissed the remaining counts.
On May 7, 1999, Probation Officer Nora Riley of the U.S. Probation Office issued a Presentence Investigation Report in which she concluded that Petitioner's prior convictions should be treated as related offenses, and therefore, a single conviction under U.S. Sentencing Guideline § 4A1.2(A)(2). The basis for the probation officer's conclusion was the fact that Petitioner's prior offenses were not separated by an intervening arrest. See U.S.S.G., § 4A1.2, Application Note 3 ("Prior offenses are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the first offense prior to committing the second offense).").
A determination that prior drug offenses are related is significant because when prior offenses are deemed unrelated, the defendant must be considered a career offender under § 4B1.1 of the Sentencing Guidelines. Being classified as a career offender results in a substantial increase in the applicable sentencing range.
The government objected to the Presentence Report and submitted a detailed memorandum in which it argued that the probation officer had considered only the first sentence of Application Note 3, and that the remainder of Application Note 3 requires that Petitioner's prior offenses be viewed as separate offenses. On June 14, 1999, Probation Officer Riley filed an Amended Presentence Report in which she concluded that Petitioner's prior offenses were unrelated and that as a result he should be treated as a career offender for sentencing purposes. On June 14, 1999, this Court sentenced Petitioner to 100 months incarceration, three years of supervised release, a $200 special assessment and a $10,000 fine. This sentence was based upon the Court's finding that Petitioner was a career offender as well as the Court's acceptance of the government's recommendation that Petitioner receive a three-level adjustment for acceptance of responsibility and a five-level downward departure for substantial assistance. Pursuant to a motion filed by the government, the Court dismissed counts two and four of the indictment.
On July 23, 2001, Petitioner filed the instant motion to vacate or set aside his conviction. (ECF No. 1). In his motion, Petitioner contends that he is entitled to a reduction in his sentence because he was improperly designated a career offender. Petitioner maintains that his state court felony convictions should not have been treated as separate offenses and notes that if the convictions had been considered one offense for the purpose of the criminal history calculation, he would have received a sentence of 24-30 months. Petitioner also raises an ineffective assistance of counsel claim based upon the failure of his attorney to present favorable case law and to file an appeal on his behalf. On August 7, 2001, the United States filed a response (ECF No. 6) to Petitioner's motion. In it, the government argues that Petitioner's motion should be denied because: (1) Petitioner's motion is untimely; (2) Petitioner knowingly waived his right to file a post-conviction petition; and (3) Petitioner was properly sentenced as a career offender. The Court agrees with all three of the government's arguments.
Under 28 U.S.C. § 2255, as amended by the Antiterrorism and Effective Death Penalty Act, a party seeking to vacate, set aside, or correct sentence must do so within one year of the date on which the judgment of conviction becomes final. Although Petitioner's conviction in case number 99CR0009 became final on June 21, 1999, he did not file his motion to vacate or set aside his sentence until over two years later. Consequently, this Court is without jurisdiction to grant the relief requested by Petitioner.
Moreover, by signing the Plea Agreement, Defendant waived his right to seek postconviction relief. Paragraph 21 of the Plea Agreement reads as follows:
The defendant hereby waives his right to appeal his conviction and sentence herein. The defendant further waives his right to raise and/or file post-conviction petitions for collateral relief concerning any and all matters pertaining to the within prosecution, including but not limited to: the filing of motions, assertion of defenses, understanding of charges, voluntary nature of plea, probable cause determinations and objections to the Court's entry of judgment and sentencing of defendant. However, should the Court fail to sentence the defendant in accordance with the provisions of this plea agreement, the defendant's right to appeal the Court's sentence is preserved.
Plea Agreement at ¶ 21. Thus, Petitioner's only potential basis for appeal was the Court's failure to sentence him in accordance with the Plea Agreement. Petitioner has no basis for raising such an appeal because his sentence was at the low end of his expected sentence under the Plea Agreement. There is no question that Petitioner did not understand that he would receive a sentence of this length under the Plea Agreement. The Plea Agreement explicitly states that "the parties agree that since the defendant is a career offender as defined in Section 4B1.1 of the Guidelines, his adjusted base level offense would be 32." Plea Agreement at ¶ 9. When Petitioner entered his guilty plea, the Court explained that if Petitioner were sentenced in accordance with the Plea Agreement, he likely would receive a prison sentence of eight to ten years in prison. Plea Hearing Transcript at 11. At that time, Petitioner indicated that he understood that he would receive a sentence within this range. Id.
Nor is there any question that Petitioner knowingly and intelligently waived his rights to appeal and/or post-conviction motions. When Petitioner entered his guilty plea, the Court specifically directed Petitioner to Paragraph 21 of the Plea Agreement and asked him whether he understood that by virtue of the provision he would be waiving his right to challenge his conviction and sentence:
THE COURT: Now, Mr. Shaffner; there is a provision in this plea agreement beginning on page 7, paragraph 21, waiver of appeal, defenses, and collateral attack rights. Now, ordinarily, even with a guilty plea you would have the right to appeal your conviction and sentence, you could challenge the proceeding. You could say, you know, that I didn't follow the rules, that it wasn't voluntary, that some other procedures were violated. What you're agreeing to in paragraph 21 is that you are waiving your right to appeal the conviction and the sentence. So you're giving that up, do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And you're also agreeing to give up your right to raise or file post-conviction motions that a defendant ordinarily has a right to file, and a lot of them are spelled out here, and you're giving those up, and the only thing you are preserving is that if I should not sentence you in accordance with the provisions of the plea agreement, you would have the right to appeal the sentence. And essentially, I think you would be limited to saying that I should have followed the plea agreement, but in a nutshell, if I adopt the plea agreement and sentence you in accordance with that, you will have no right to appeal your conviction or sentence. Do you understand that?
THE DEFENDANT: Yes, sir.
THE COURT: And I'm further advising you that the Court of Appeals for the Sixth Circuit, which has supervision over me, has upheld waivers of this type, assuming that the judge has explained it fully to the defendant and has said, you know, you waive these rights, and you can't come back and file these motions. So I'm satisfied that this language would be upheld, and you should know that if you sign this and plead guilty under this plea agreement, you are not going to be able to appeal the conviction, sentence, or file any post conviction motions. Do you understand that?
THE DEFENDANT: Yes, sir.
Plea Hearing Transcript at 12-14. Not only has the Sixth Circuit upheld a defendant's waiver of his right to appeal and file post-conviction motions in such circumstances, see, e.g., United States v. Fleming, 239 F.3d 761, 763 (6th Cir. 2001), but the Sixth Circuit recently held that such waivers also apply to collateral ineffective assistance counsel claims. Davila v. United States, 258 F.3d 448, 451 (6th Cir. 2001) ("When a defendant knowingly, intelligently, and voluntarily waives the right to collaterally attack his or her sentence, he or she is precluded from bring[ing] a claim of ineffective assistance of counsel based on 28 U.S.C. § 2255."). Consequently, Petitioner is precluded from seeking the post-conviction relief he requests in his motion.
The fact that the Court's remarks during the Sentencing Hearing may have mistakenly given Petitioner the impression that he had preserved his right to appeal the career offender designation is irrelevant because where a defendant knowingly and voluntarily enters into a valid plea agreement pursuant to which he waives his right to appeal, the district court cannot unilaterally reinstate that right to appeal. United States v. Fleming, 239 F.3d 761, 765 (6th Cir. 2001).
In any case, there is no evidence that Petitioner actually directed his attorney to file an appeal on his behalf. Rather, the unsworn statement of Petitioner merely indicates that he had discussed the possibility of an appeal with two lawyers, both of whom found no basis for an appeal. (ECF No. 1, Ex. 12). See, e.g., Ludwig v. States, 162 F.3d 456, 459 (6th Cir. 1998) ("[T]he Constitution is only implicated when a defendant actually requests an appeal, and counsel disregards a request.").
Even if Petitioner had not waived his right to appeal or petition for post-conviction relief, he would have been unable to sustain his claim that he was improperly categorized as a career offender. Petitioner contends that he is not a career offender because his prior convictions should have been treated as a single related offense under § 4A1.1 (a), (b), and (c) of the 1989 version of the Sentencing Guidelines. The Court disagrees. Federal courts must use the Sentencing Guidelines in effect on the date that the defendant is sentenced unless such application would violate the ex post facto clause. 18 U.S.C. § 3553 (a)(4)(A). Where the ex post facto clause would be violated, the court may use the Sentencing Guidelines in effect "on the date that the offense of conviction was committed." U.S.S.G. § 1B1.11(b)(1). Thus, the earliest version of the Sentencing Guidelines applicable to Petitioner's case are those that were in effect on November 6, 1998, the date of Petitioner's first federal offense.
The cases cited by Plaintiff are inapplicable because they concern instances in which a federal court sentenced a defendant for a federal crime using the 1991 guidelines even though the crime itself was committed prior to the date upon which the Sentencing Guidelines were amended. No such ex post facto violation occurred in this case because the 1998 Sentencing Guidelines apply regardless of whether the Court looks to the earliest date of the federal offense (November 6, 1998) or the date of the Sentencing Hearing itself (June 14, 1999). Plaintiff is unable to cite to any authority that would require a federal court to apply the Sentencing Guidelines that were in effect when a defendant committed a prior state offense.
Petitioner's belief that he would not have been labeled a career offender under the 1989 Sentencing Guidelines is also misplaced. Both the 1989 Sentencing Guidelines and the Guidelines that were in effect at the time of Petitioner's sentencing require a defendant to be sentenced as a career offender if he or she has "at least two prior felony convictions of either a crime of violence or a controlled substance offense." U.S.S.G. § 4B1.1. Both versions further specify that:
Prior sentences imposed in unrelated cases are to be counted separately. Prior sentences imposed in related cases are to be treated as one sentence for the purposes of § 4A1.1(a), (b), and (c).Id. at § 4A1.2(a)(2). The key distinction between the two versions with regard to the career offender designation is the addition of the following sentence to Application Note 3 of § 4A1.2:
Prior sentences are not considered related if they were for offenses that were separated by an intervening arrest (i.e., the defendant is arrested for the "first offense prior to committing the second offense).See, e.g., U.S. v. Lindholm, 24 F.3d 1078, 1087 (9th Cir. 1994) (discussing 1991 addition of intervening arrest language). The addition of this sentence to Application Note 3 has no bearing upon Petitioner's case, because there was no intervening arrest between his state court offenses. Furthermore, as the government noted in its objection to the initial Presentence Report, the question of whether there was an intervening arrest is merely a threshold issue. If there was no intervening arrest, the Court must look to the factors listed in the next sentence of Application Note 3, which provides:
Otherwise, prior sentences are considered related if they resulted rom offenses that (A) occurred on the same occasion; (B) were part of a single common scheme or plan, or (C) were consolidated for trial or sentencing.Id. Thus, although Petitioner is correct in noting that his prior offenses were not separated by an intervening arrest, under either version of the Sentencing Guidelines, he still must establish that the offenses occurred on the same occasion, were part of a common plan or scheme, or were consolidated for trial or sentencing. See, e.g., United States v. Boonphakdee, 40 F.3d 538, 544 (2nd Cir. 1994).
This sentence, with the exception of the word "otherwise," was also present in the 1989 Sentencing Guidelines. See, e.g., United States v. McQuerry, 887 F.2d 1088, *1, table (6th Cir. 1989) (quoting Application Note 3, § 4A1.2).
Petitioner cannot argue that his prior offenses occurred on the same occasion because case number CR241929 concerned drug sales that took place on November 12, 1988 and on January 12, 1989, while case number CR243412 concerned drugs and weapons that Petitioner had in his possession on August 27, 1999. Nor can Petitioner establish that his prior offenses were part of a "single common scheme or plan." Two convictions are part of a "single common scheme or plan" when the commission of one crime entails the commission of the other or when the crimes were jointly planned. United States v. Irons, 196 F.3d 634, 638 (6th Cir. 1999). There is no evidence to support such a finding in this case. Petitioner's offenses were separated by more than seven months and involved entirely different law enforcement entities. See, e.g., Id. (defendant's conviction for leaving harassing videocassette in girlfriend's residence was not related to defendant's conviction for breaking and entering, criminal damaging, and petty theft in incident that occurred one month later and also involved girlfriend's family); United States v. Garcia, 962 F.2d 479 (5th Cir. 1992) (heroin sales separated by nine days to two different undercover officers were not part of a "single common plan or scheme").
Finally, the mere fact that Petitioner was sentenced in two cases on the same day does not mean that the state court cases were "consolidated for sentencing or trial." In the Sixth Circuit, "cases are not consolidated when offenses proceed to sentencing under separate docket numbers, cases are not factually related, and there was no order of consolidation." United States v. McAdams, 25 F.3d 370, 374 (6th Cir. 1994) (quoting United States v. Coleman, 964 F.2d 564, 566 (6th Cir. 1992)). The state court orders attached to the Government's Objections to Presentence Report in the underlying criminal case reveal that Petitioner was sentenced under two separate case numbers and that there was no order of consolidation prior to or during sentencing. The state court judge's decision to allow Petitioner to serve his two sentences concurrently does not make them related offenses. United States v. Anderson, 76 F.3d 685, 691 (6th Cir. 1996) ("[D]efendant's receipt of concurrent sentences for these three prior felony drug convictions does not mean that the convictions were part of the same criminal episode."). Accordingly. Petitioner was not improperly classified as a career offender and his counsel was not ineffective for failing to raise such an argument.
For the reasons stated above, Petitioner's motion to vacate or set aside his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 1) is DENIED and DISMISSED with prejudice. Further, the Court certifies, pursuant to 28 U.S.C. § 1915 (a)(3), that an appeal from this decision could not be taken in good faith, and that there is no basis upon which to issue a certificate of appealability. IT IS SO ORDERED.
See 28 U.S.C. § 2253 (c) and Fed.R.App.P. 22(b).
For the reasons stated in the Memorandum of Opinion and Order filed contemporaneously with this Judgment Entry, and pursuant to Federal Rule of Civil Procedure 58, it is hereby ORDERED, ADJUDGED AND DECREED that the above-captioned case is hereby terminated and dismissed as final.
IT IS SO ORDERED.