Opinion
Cr. File No. 98-222(5) (MJD/JGL), Civ. No. 02-4158 (MJD)
April 28, 2003
Petitioner on his own behalf.
Michael L. Cheever, Assistant United States Attorney, for and on behalf of Respondent.
ORDER
The above-entitled matter came before the Honorable Michael J. Davis on a Petition to correct, set aside or vacate Petitioner's conviction and sentence pursuant to 28 U.S.C. § 2255.
Background
The Petitioner was charged in three counts of a nine count Indictment filed on August 5, 1998. In Count One, Petitioner was charged with conspiracy to distribute in excess of 1 Kilogram of Methamphetamine and in excess of 5 Kilograms of cocaine from September 1992 through July 8, 1998. Count Seven charged Petitioner with attempt to possess with the intent to distribute 55.8 grams of cocaine October 15, 1997, and in Count Nine, Petitioner was charged with money laundering.
On June 22, 1999, a jury returned a verdict of guilty against the Petitioner on all three counts. At sentencing, the applicable guideline range was determined to be Level 30/Criminal History Category II, resulting in a guideline range of 108-135 months imprisonment. Petitioner was thereafter sentenced to a term of imprisonment of 108 months, followed by five years supervised release. Petitioner's conviction and sentence were affirmed on appeal. United States v. Sherman et al., 262 F.3d 784 (8th Cir.), rehearing and rehearing en banc denied (Oct 09, 2001).
Now before the Court is a petition to correct, set aside or vacate the Petitioner's convictions and sentence pursuant to 28 U.S.C. § 2255. Petitioner asserts that he was denied effective assistance of counsel when Petitioner rejected a plea offer from the government based on improper advice from counsel and when counsel failed to investigate sources of Western Union wire transfers. For the reasons discussed below, the Court finds that the petition must be dismissed.
Standard
A petition filed pursuant to 28 U.S.C. § 2255 is not a substitute for a direct appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Collateral relief under 2255 may be available for claims not raised on direct appeal, if: 1) such claims involve jurisdictional or constitutional issues, or involve a fundamental defect which inherently results in a complete miscarriage of justice; and 2) the Petitioner shows cause for the procedural default and resulting prejudice. Bedford v. United States, 975 F.2d 310, 313 (7th Cir. 1992).
A. Ineffective Assistance of Counsel at Trial
To succeed on a claim of ineffective assistance of counsel, a petitioner has the burden of showing that counsel's performance fell below an objective standard of reasonableness. Strickland v. Washington, 466 U.S. 668 (1984). Under the Strickland test, the Petitioner must demonstrate that: 1) counsel made errors so serious that counsel was not functioning as the Acounsel guaranteed by the Sixth Amendment; and 2) counsel's deficient performance prejudiced the defense. Id. at 687. To show prejudice, Petitioner must demonstrate that Athere is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 694. There is a strong presumption that, considering all of the circumstances, counsel's performance was competent. As such, a court must give deference to counsel's decisions regarding trial strategy and tactics. Id. at 689.
1. Improper Advice Regarding Plea Offer
Petitioner was initially appointed a public defender. The public defender filed a number of motions on Petitioner's behalf and informed Petitioner that the government wanted to talk about a possible plea agreement. Petitioner told counsel that he wanted to think about entering into a plea, but alleges that at his next meeting with the public defender, he told Petitioner that another of his clients had just been sentenced to twenty-five years. Petitioner alleges he was Adazed by this information, and that a family member recommended he retain another defense lawyer. Thereafter, Petitioner's family retained private counsel.
Petitioner alleges that he told his new counsel about the possible plea agreement, and that counsel told him not to speak with the government until he was on the case. As trial approached, Petitioner alleges that he asked counsel about the status of plea negotiations, and that counsel informed him that the government was only offering sixteen years.
Petitioner alleges that counsel never described the plea process with him, and that he never had an opportunity to review the plea offer. He further alleges that counsel didn't mention a potential plea until after many of his co-defendants had entered into plea agreements; diminishing the value of Petitioner's cooperation which effected the plea offer he would receive from the government. Petitioner alleges that had he been informed of the plea process in a timely manner, he could have been in a position to receive a lower sentence.
This claim, however, is based on speculation. Petitioner has put forth no evidence that had he been advised of the plea negotiation process at an earlier time, a plea agreement would have been reached that would have allowed for a lower sentence. In fact, the government denies such a plea agreement would have been reached. Rather, the government asserts that the only plea agreement offered to Petitioner contemplated a guideline range of 121-151 months. As Petitioner was eventually sentenced to a term of 108 months, he cannot show that he was prejudiced by not entering into such a plea agreement.
2. Failure to Investigate Western Union Wire Transfers
Petitioner was found guilty of Count Nine of the Indictment which charged Petitioner with aiding and abetting money laundering. In calculating the appropriate offense level for the money laundering count, the Court found that Petitioner had sent, or directed others to send, Western Union wire transfers totaling $122,600, using Petitioner's name or the alias Mike Wilson. Petitioner now alleges that the wire transfers sent under the name Mike Wilson should not be attributed to him. In support, he points out that the government exhibits show certain of the wire transfers list an address that is not Petitioner's address, but is actually close to the home of the father of one of the government's witnesses.
This evidence alone, however, is not sufficient to grant the requested relief. The evidence presented at trial clearly supports this Court's previous finding that the wire transfers in the name of Mike Wilson were properly attributed to Petitioner. Petitioner even admitted to using the alias Mike Wilson when sending wire transfers.
But even if the Court were to attribute to Petitioner only those wire transfers sent under Petitioner's name, Petitioner cannot show that his sentence would be different. Because the money laundering count was grouped with the drug counts, the offense level is determined by the highest offense level produced by any one of the counts in the group. Thus, even if the offense level for the money laundering count was reduced, the offense level would nonetheless be driven by the drug counts, resulting in the same sentencing range.
Petitioner argues, however, that the Court's finding with respect to the money laundering counts was the basis of the Court's determination as to the amount of drugs attributable to Petitioner. However, as is clear from this Court's statement of reasons, the calculation of drug amounts attributable to Petitioner was based on Petitioner's confession and the evidence presented at trial.
3. Motion for Appointment of Counsel and for Discovery
Finally, Petitioner has moved the Court for appointment of counsel and the opportunity to conduct further discovery. Based on the above, the Court finds no need for counsel or discovery in this case.
IT IS HEREBY ORDERED that Petitioner's motion pursuant to 28 U.S.C. § 2255 to Vacate, Set Aside or Correct his Sentence [Docket No. 514] is DENIED. Petitioner's Request for Discovery and Appointment of Counsel [Docket Nos. 515 and 516] are DENIED.