Opinion
File No. 1:04-CV-433.
February 18, 2005
OPINION
This matter comes before the Court on Movant Robert Dontrall Sharp's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Movant was charged in a two count indictment with conspiracy to distribute and to possess with intent to distribute over 500 grams of cocaine and over 50 grams of cocaine base in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), and 841(b)(1)(B) (Count One) and possession with intent to distribute and aid and abet in possession with intent to distribute over 500 grams cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(ii) (Count Two). Movant pled guilty to Count Two and was sentenced to two hundred sixteen months imprisonment and five years supervised release. Movant did not appeal his conviction or sentence. In this motion, Movant asserts two grounds for relief. First, Movant contends that he did not admit the drug quantity alleged in the indictment and therefore was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). Second, Movant asserts that he received ineffective assistance of counsel in violation of the Sixth Amendment. For the reasons that follow, Movant's motion is DENIED.
I.
A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. In order to obtain collateral relief under § 2255, a movant must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982). "To prevail under § 2255, [movant] must show 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." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).In an action to vacate or correct the sentence, the court is required to grant a hearing to determine the issues and make findings of fact and conclusions of law "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. No evidentiary hearing is required if the movant's allegations "cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). Where, as here, the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial. Id. (citing Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996)).
II.
It is well settled that an argument not raised on direct appeal is waived. See Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996). Section 2255 is not a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal process. Frady, 456 U.S. at 167-68. Where a defendant, such as Movant in this case, procedurally defaulted by failing to raise his claims on direct appeal, in order to raise them on collateral review in a § 2255 motion he must show either "(1) he had good cause for his failure to raise such arguments and he would suffer prejudice if unable to proceed, or (2) he is actually innocent." Regalado v. United States, 334 F.3d 520, 528 (6th Cir. 2003) (citing Bousley v. United States, 523 U.S. 614, 622 (1998)). The cause and prejudice standard "applies to a defendant who pleads guilty and first asserts a claim for relief in a collateral proceeding." Id. (quoting Ratliff v. United States, 999 F.2d 1023, 1025 (6th Cir. 1993)).
In this case, Movant did not raise his Apprendi claim on appeal. On collateral review he does not attempt to assert a claim that he is actually innocent. Nor does he make any effort to show cause for his procedural default. Even assuming Movant could satisfy the cause requirement, he cannot demonstrate prejudice because his Apprendi claim is meritless.
The Court also notes that failure to perfect an appeal is not one of the reasons Movant asserts as a basis for his ineffective assistance of counsel claim.
Movant alleges that he did not admit the drug quantity alleged in the indictment in his guilty plea and therefore he was sentenced in violation of Apprendi. A review of the record demonstrates that Movant's allegation is unfounded. Movant pled guilty to Count Two of the superseding indictment which alleged that he intentionally possessed with intent to distribute over 500 grams of cocaine. Case No. 1:02-CR-291 Docket #22. At Movant's plea hearing, the Court specifically asked Movant what he did that made him guilty. Movant responded "I possessed some drugs." Id. at Docket #66 Transcript of Plea at 8 (hereinafter "Plea Transcript"). The Court then asked what type and quantity of drugs Movant possessed. Movant responded that he possessed "a key and a half" of cocaine. Plea Transcript at 8. Later on during the plea hearing, the Court asked Movant "[d]id you know or did you intend to possess one and a half kilograms of cocaine?" Plea Transcript at 9. The Movant answered affirmatively and stated that he intended to sell the cocaine. Id. Clearly, the record shows that Movant's claim that he did not admit the drug quantity alleged in the indictment is unfounded because he admitted on two occasions during the plea hearing that he possessed one and a half kilograms (1,500 grams) of cocaine, an amount well over the 500 grams necessary to sentence him within the range provided in 21 U.S.C. § 841(b)(1)(B)(ii) (five to forty year range where person possesses over 500 grams of cocaine). Therefore, even if Movant could show cause for his procedural default, he cannot show any prejudice because his Apprendi claim is baseless. Accordingly, Movant cannot receive collateral relief based on a violation of Apprendi.
At sentencing, defense counsel also acknowledged that Defendant admitted possessing one and a half kilograms of cocaine, "[w]hat he's actually charged with in Count 1 is possession of 1.5 kilograms of powder that was thrown up on a roof. He's admitted that all the way along." 1:02-CR-291 Docket #75 Transcript of Sentencing at 24 (hereinafter "Sentencing Transcript) (emphasis added).
Turning to Movant's other ground for relief, ineffective assistance of counsel. Movant alleges that his counsel did not fully apprise him of the consequences of his guilty plea such that his guilty plea was involuntarily entered. Further, Movant alleges that his counsel rendered ineffective assistance by failing to request a downward departure pursuant to U.S.S.G. § 5H1.4. U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (2003) (permitting a district court to impose a sentence below the applicable guideline range based upon "an extraordinary physical impairment"). Movant is suffering from various injuries sustained after multiple gunshot wounds to the abdomen.
Movant's failure to raise his ineffective assistance of counsel claim on direct appeal is not a bar to asserting the claim on collateral review. Massaro v. United States, 538 U.S. 500, 508-09 (2003) (holding that failure to raise ineffective assistance of counsel claim on direct appeal does not bar the claim from being brought under § 2255). To show ineffective assistance of counsel, a "defendant must show that counsel's performance was deficient [and] . . . that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). To satisfy this test, Movant must demonstrate that "counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment" and that "counsel's errors were so serious as to deprive [Movant] of a fair trial, a trial whose result is reliable." Id. "[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690.
Movant first alleges that his plea was involuntary because his counsel failed to apprise him of the nature of the charge against him prior to his plea of guilty. Movant has not offered any evidence, beyond a conclusory statement, that defense counsel failed to inform him of the charges against him. Absent any credible evidence to the contrary, Movant cannot overcome the presumption that defense counsel's conduct was within the range of reasonable professional assistance. Id. at 689. Moreover, during the plea hearing, the Court specifically asked Movant if he had an ample opportunity to discuss the criminal matter with his attorney. Plea Transcript at 3. Movant responded affirmatively. Id. Movant also acknowledged that he was satisfied with his attorney's representation of him. Id. Based upon Movant's own statements, it appears that he did discuss the charge with his attorney.
Even assuming defense counsel's performance was deficient, Movant cannot show that he was prejudiced such that he was denied a fair trial. Strickland, 466 U.S. at 687. At the plea hearing, during the traditional FED. R. CRIM. P. 11 plea colloquy the Court ensured that Movant understood the charge that he was pleading guilty to and the consequences of that guilty plea. At the outset of the hearing, Count Two of the superseding indictment was read into the record and Movant entered a plea of guilty. Plea Transcript at 4. Following Movant's guilty plea, as part of the plea colloquy, the Court inquired as to whether the Movant understood that a guilty plea, if accepted, meant that he would stand convicted of Count Two and that the Court would eventually sentence Movant. Id. at 6. Further, the Court explained that the charge "alleges that on November 24th in Berrien County, that you and others did distribute or aid and abet each other in distributing . . . possessing with intent to distribute over 500 grams of a mixture containing cocaine." Id. Movant acknowledged that he understood the allegation in Count Two and told the Court that he did not have any questions regarding the matter. Id. The reading of the superseding indictment and the opportunity for Movant to ask questions regarding the charge was sufficient to inform him of the nature of the charge against him. United States v. Syal, 963 F.2d 900, 904-05 (6th Cir. 1992) (holding that in a simple case, a defendant is sufficiently informed of the nature of the charge if the indictment is read and he is allowed to ask questions about the charge) (citing United States v. Van Buren, 804 F.2d 888, 892 (6th Cir. 1986)). After an extensive review of the facts underlying the charge, the Court found that the indictment was factually accurate and Movant's plea was freely and voluntarily given. Id. at 12.
The record demonstrates that Movant understood the nature of the charge against him and that even if his counsel did not inform him of the charge, his plea was knowingly and voluntarily given. See United States v. Valdez, 362 F.3d 903, 910-11 (6th Cir. 2004) (holding that defendant was adequately informed of the drug conspiracy charge against him where the government summarized the charge at the plea hearing and he was informed of the charge in his plea agreement and on two other occasions during the plea colloquy). Accordingly, Movant cannot prevail on his ineffective assistance of counsel claim based upon his counsel's failure to inform him of the nature of the charge against him.
Movant also argues that he received ineffective assistance of counsel because his counsel failed to inform him of the scope of relevant conduct that would be used to determine his sentencing guideline range. At the sentencing hearing, the Court determined that relevant conduct included drug transactions that occurred prior to the date charged in Count Two of the superseding indictment. Specifically, the Court held that relevant conduct included cocaine distribution during 2001 and 2002 in Berrien County involving Movant, a co-defendant, and another individual. Sentencing Transcript at 12-13. Movant now argues that prior to the Court's ruling, his counsel had not discussed the applicability of relevant conduct to his sentencing guideline range.
As with Movant's claim that his counsel failed to inform him of the nature of the charge against him, Movant has failed to produce any evidence that his counsel did not discuss with him the applicability of relevant conduct to his sentence. In fact, the record demonstrates that defense counsel did discuss this issue with Movant. At the plea hearing the following exchange took place:
THE COURT: There is — because of the nature of the guidelines I'm going to ask you, Mr. Delaney, to indicate, if you know, what you believe [the] relevant conduct quantities would be for purposes of our discussions here. Is the one and a half kilograms sufficient for your discussion here?
MR. DELANEY: No, Your Honor. The United States believes that the defendant was involved with other quantities of cocaine, and I believe we could prove that. Our relevant conduct would indicate substantially more cocaine than this particular amount on this date, which would include crack cocaine as well, Your Honor.
THE COURT: Is it your intention to disclose those dates, quantities and otherwise to the presentence officer and also to Mr. Parish?
MR. DELANEY: It is, Your Honor.
THE COURT: Okay. Okay.
MR. PARISH: It's our intention, of course, Your Honor, to contest anything above the 1.5 kilos of powder.
THE COURT: Okay. Okay.
MR. PARISH: And we've discussed that problem with the client and he's aware of the implications and the importance of those issues. Am I correct on that, Mr. Sharp?
DEFENDANT SHARP: Yes.
Plea Transcript at 10-11 (emphasis added). Movant unequivocally indicated that he was aware that conduct and drug quantities outside of the charge in Count Two could be used as relevant conduct for sentencing purposes. Moreover, Movant's awareness of the potential scope of relevant conduct is also demonstrated by the fact that his counsel objected to the inclusion in the Presentence Report of any conduct that did not occur on the date of the charge in Count Two. Addendum to Presentence Report at 2-3. Defense counsel also pursued this position during the sentencing hearing, further demonstrating that Movant knew that conduct not occurring on the offense date could effect his sentence:
MR. PARISH: And because of that [drug transactions occurring before offense date charged], my instructions for my client are to present the argument that the relevant conduct should be restricted to that which he was actually convicted of, which is Count 2, which is a conspiracy limited to the two individuals for the specific time period. And that, to use the example of Nichols as one example, came long after Nichols, did not involve Nichols, was separate. That's all we're saying.
Sentencing Transcript at 11. These statements establish that Movant's claim that his defense counsel did not discuss the effect and scope of relevant conduct on his sentence is unfounded. Therefore, Movant cannot establish that his defense counsel's performance was deficient. Although not completely clear, it appears Movant is arguing that his defense counsel should have known the Court's ruling on relevant conduct prior to the sentencing hearing. The fact that defense counsel failed to predict what the Court's ruling would be does not render his performance deficient and does not render Movant's plea involuntary. United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993) (holding that defense counsel's failure to predict the inclusion of relevant conduct in defendant's offense level did not rise to the level of ineffective assistance of counsel and did not justify withdrawal of a guilty plea); see also United States v. Barnes, 83 F.3d 934 (7th Cir. 1996) (refusing to allow withdrawal of a guilty plea where defense counsel failed to inform defendant he would be classified as a career offender).
Finally, Movant also alleges that he received ineffective assistance of counsel because his defense counsel failed to request a downward departure based upon U.S.S.G. § 5H1.4. Section 5H1.4 provides in pertinent part: "an extraordinary physical impairment may be a reason to impose a sentence below the applicable guideline range; e.g., in the case of a seriously infirm defendant, home detention may be as efficient as, and less costly than, imprisonment." U.S. SENTENCING GUIDELINES MANUAL § 5H1.4 (2003). Movant suffers from numerous health problems resulting from multiple gunshot wounds. Based upon his physical condition, Movant alleges that defense counsel should have requested a downward departure pursuant to U.S.S.G. § 5H1.4.
As stated previously, Strickland mandates that there is a strong presumption that defense counsel rendered adequate assistance and exercised reasonable judgment in making significant decisions. 466 U.S. at 690. In evaluating the counsel's performance, the Court must focus on the adequacy of his actual performance, not his hindsight potential for improvement. Coe v. Bell, 161 F.3d 320, 342 (6th Cir. 1998). Movant invites the Court to engage in the type of second guessing of defense counsel's decisions expressly prohibited by Strickland and Coe. Moreover, the record indicates that although defense counsel did not request a downward departure based upon U.S.S.G. § 5H1.4, he was quite successful in achieving a lower sentence for Movant through other avenues.
Specifically, defense counsel sought a downward departure for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1, objected to a four level increase in Movant's offense level for being an organizer or leader of a conspiracy over five people, U.S.S.G. § 3B1.1(a), and objected to the addition of two points to Movant's criminal history score. Sentencing Transcript at 11, 15, 21. The Court granted a three level downward departure for acceptance of responsibility, sustained Movant's objection to the four level increase based upon U.S.S.G. § 3B1.1(a), and reduced Movant's criminal history score from seven to five. Sentencing Transcript at 15, 21, 45. Based upon defense counsel's request for a downward departure and objections, the Court calculated Movant's offense level as 35 with a criminal history score at Level III. This placed Movant in the 210 to 262 months sentencing range. Without defense counsel's objections, Movant's offense level would have been 42 with a criminal history score at Level IV, placing him in a sentencing range of 360 months to life imprisonment. Moreover, although defense counsel did not specifically request a downward departure pursuant to U.S.S.G. § 5H1.4, he did bring Movant's health problems to the Court's attention when requesting that Movant be sentenced at the low end of the applicable guideline range. See Sentencing Transcript at 45-46. Based upon defense counsel's request the Court sentenced Movant to 216 months imprisonment and recommended that the Bureau of Prisons conduct a medical evaluation in order to respond to Movant's medical condition. Sentencing Transcript at 55.
The decision to pursue this alternative strategy cannot be called unreasonable, especially when a downward departure pursuant to U.S.S.G. § 5H1.4 is so exceptional. See United States v. Russell, 156 F.3d 687, 694 (6th Cir. 1998) ("[I]t is not enough merely to have a disability to qualify for a downward departure under § 5H1.4. Rather, as the guidelines explicitly state, the physical impairment must truly be 'extraordinary.'"). Indeed the strategy was quite successful in achieving a sentence in a lower sentencing range, and it certainly did not approach the level of constitutional deficiency required for ineffective assistance of counsel. Strickland, 466 U.S. at 687.
Even if Movant could show that defense counsel's failure to request a downward departure based upon U.S.S.G. § 5H1.4 was deficient, he cannot demonstrate that he was prejudiced by such failure. At the time of Movant's sentencing, the Court was fully aware of Movant's medical condition and if a request based on § 5H1.4 had been made it would not have been granted because Movant failed to demonstrate that his condition rose to the extraordinary level required to grant such a departure and failed to show that the Bureau of Prisons could not effectively manage Movant's condition while in prison. See e.g., United States v. Thomas, 49 F.3d 253 (6th Cir. 1995) (affirming district court's denial of downward departure under § 5H1.4 where defendant was infected with HIV); United States v. Krilich, 257 F.3d 689 (7th Cir. 1999) (upholding district court's denial of downward departure under § 5H1.4 where defendant suffered from chronic cardiovascular disease, obstructive pulmonary disease, chronic peripheral vascular disease, and back pain).
Accordingly, the Court holds that Movant has failed to demonstrate a fundamental defect in his conviction or sentence entitling him to relief under § 2255. Movant procedurally defaulted on his Apprendi claim and failed to demonstrate cause or prejudice for the default. Movant also failed to demonstrate that he received ineffective assistance of counsel. Therefore, Movant's motion to vacate, set aside, or correct his sentence is denied. An order will be entered consistent with this opinion.