Opinion
16-20654
06-21-2021
UNITED STATES OF AMERICA, Plaintiff, v. PHILLIP LUCKY MCINTYRE, Defendant.
EXHIBIT 1
DEFENDANT'S DRAFT PROPOSED ORDER
ORDER GRANTING IN PART AND DENYING IN PART PHILLIP LUCKY MCINTYRE'S MOTION TO VACATE JUDGMENT UNDER 28 U.S.C. §2255
HON. MARK A. GOLDSMITH, U.S. DISTRICT COURT JUDGE
On September 29, 2016, Defendant and Petitioner Phillip Lucky McIntyre was indicted on one count of sex trafficking of a minor under 18 U.S.C. §1591(a). (Indictment, ECF No. 13, Page ID#22-25). He pled guilty to that one count pursuant to a Plea Agreement in a hearing on May 16, 2017. (Plea Agreement, ECF No. 31, Page ID#93-118; Tr. Plea Hrg., ECF No. 50, Page ID#223-224).
At sentencing, the sentencing guideline range was found to be 135-168 months. (Tr. Sent. Hrg., ECF No. 51, Page ID#231-232). The Court sentenced McIntyre at the highest point of that range to a term of One Hundred Sixty Eight (168) months incarceration to be followed by 5 years of supervised release. (Id., Page ID#248; Judgment, ECF No. 39, Page ID#155-156). There was no direct appeal of McIntyre's sentence.
The subject of the instant proceedings concerns McIntyre's Motion to Vacate his Judgment under 28 U.S.C. §2255. McIntyre filed this Motion pro se on June 4, 2018, raising three Grounds for relief. (Pro Se 2255, ECF No. 46, Page ID#180-182). After the Government responded (Response, ECF No. 59, Page ID#278-293), counsel was appointed for McIntyre and an evidentiary hearing was scheduled. At the scheduled hearing, McIntyre's counsel moved to withdraw, which this Court granted. (Order, ECF No. 63, Page ID#301). New counsel was appointed who moved to amend the pro se §2255 by adding an additional Ground for relief, i.e. Ground Four, which addressed ineffective assistance of counsel in failing to challenge certain special conditions of supervised release. (Motion, ECF No. 66, Page ID#305-317). The Court granted McIntyre the ability to amend and ordered a response by the Government. (Order, ECF No. 69, Page ID#320).
After the Government's Response and McIntyre's Reply, an evidentiary hearing was scheduled for March 27, 2020. (Response, ECF No. 70, Page ID#321-328; Reply, ECF No. 71, Page ID#329-337). However, just before that time, the Eastern District of Michigan courthouses were closed due to the (then) newly burgeoning COVID-19 pandemic and as a result, the hearing was adjourned per E.D. Mich. Admin. Order 20-AO-021. (Text-only Notice of 3/18/20). When the Court began a phased reopening, this case was one of the first scheduled for an inperson proceeding and an evidentiary hearing was held on May 10, 2021.
At the evidentiary hearing, McIntyre's post-Judgment counsel (on McIntyre's behalf) withdrew two of the four Grounds raised in McIntyre's §2255 petition: (a) Ground Two, titled “Actual Innocence”; and (b) Ground Three, titled “Violation of the 10 Amendment & Principles of Federalism”. (Tr. Evid. Hrg., ECF No. 78, Page ID#351). McIntyre's counsel stated that petitioner's focus was “going to be on the sentencing aspect of the ineffectiveness challenge that remains.” (Id.). Accordingly, Grounds Two and Three are denied as moot and the analysis of the Motion's remaining grounds concerning ineffective assistance of counsel (Grounds One and Four) now follows.
Cir. 2012).
I.
Findings of Fact
McIntyre has two remaining grounds raised in this §2255 Motion. McIntyre's Ground One claim is based on claims of ineffectiveness, covering allegedly ineffective plea advice and various alleged failures to defend the case or adequately represent McIntyre. (Pro Se 2255, ECF No. 46, Page ID#180, 189194). His Ground Four claim addresses the failure to challenge two special conditions of supervised release ordered in the Judgment (Special Conditions 7 and 8). Specifically, McIntyre challenges the failure of counsel to address the imposition of these conditions which were ordered without certain elements of mens rea, leading to (he claims) strict liability for any violations of these conditions. He argues that the conditions should have been ordered as follows (with McIntyre's proposed mens rea additions in bold and underlined):
7. The defendant shall not associate with minor children he knows are under the age of eighteen (18), except in the presence of a responsible adult who is aware of the nature of your background and current offense, without prior approval of the probation officer. The defendant may have unsupervised contact with his/her own children at the discretion of the probation officer. The defendant shall not frequent places he knows children congregate on a regular basis (such as but not limited to school grounds, playgrounds, child toy stores, video arcades, etc.).
8. The defendant shall not purchase, sell, view, or possess images, in any form of media or live venue that depict pornography, sexually explicit conduct, child erotica, or child nudity. The defendant shall not patronize any place where he knows such material or entertainment is available.” (Motion, ECF No. 66, Page ID#309). The failure of defense counsel to challenge these conditions at sentencing (imposed without mens rea elements), McIntyre argues, was ineffective as it was both objectively unreasonable and prejudicial.(Id., Page ID#310-315; Reply, ECF No. 71, Page ID#330-333).
At the evidentiary hearing in this matter, one witness testified: McIntyre's trial counsel. She recounted the efforts in investigating McIntyre's case and counseling him in his plea decision. (Tr. Evid. Hrg., ECF No. 78, Page ID#352-381). In addition, attached to the Government's Response to McIntyre's pro se §2255 petition, was counsel's affidavit, which further detailed those efforts. (Affidavit, ECF No. 59-1, Page ID#294-296).
Regarding sentencing, counsel testified as to her specific efforts at advocating for a lower sentence for McIntyre. (Tr. Evid. Hrg., ECF No. 78, Page ID#373-376). Counsel acknowledged that there was no accord in the Plea Agreement as to special conditions of supervised release. (Id., Page ID#378). She did not recall whether any were proposed in the Presentence Investigation Report. (Id.). Counsel's position was that objecting to supervised release conditions “takes away from” what is the “main goal” of sentencing, i.e., getting a “lesser sentence”. (Id., Page ID#380-381). The lack of objection, it was stated, was a “strategic” decision. (Id., Page ID#380). McIntyre's trial counsel agreed with the Government that these conditions could potentially be challenged later when on supervised release. (Id., Page ID#381).
McIntyre did not testify at the evidentiary hearing, nor submit additional evidence regarding his §2255 claims. (Tr. Evid. Hrg., ECF No. 78, Page ID#382).
II.
Conclusions of Law
A. Ground One: Ineffective Assistance of Counsel Regarding Guilty Plea and Sentencing
To establish ineffective assistance of counsel, a defendant must show that counsel's performance fell below an objective standard of reasonableness and that 5 the representation so prejudiced defendant as to result in a deprivation of a fair trial. Strickland v. Washington, 466 U.S. 668, 687-688, 690, 104 S.Ct. 2052 (1984). When ineffectiveness claims are raised post-Judgment in the context of a case resolved by plea of guilty, the petitioner must “show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Campbell v. United States, 686 F.3d 353, 357 (6
McIntyre did not submit proofs or testify in support of his claim regarding ineffective assistance of counsel. (Tr. Evid. Hrg., ECF No. 78, Page ID#382). Under Hill, 474 U.S. at 59, he has not shown that “but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” This is enough to deny relief on Ground One as to the ineffectiveness claims going toward McIntyre's conviction. Indeed, by the evidentiary hearing, McIntyre's focus was “on the sentencing aspect of the ineffectiveness challenge. (Tr. Evid. Hrg., ECF No. 78, Page ID#351). Accordingly, relief on Ground One is denied. To the extent that Ground One's ineffectiveness claim concerns sentencing, that claim is addressed in the Court's ruling on Ground Four which follows.
B. Ground Four: Ineffective Assistance of Counsel Regarding Special Conditions of Supervised Release at Sentencing
Unlike the plea-based ineffectiveness claim in Ground One, Ground Four is a strictly legal argument that did not require new evidence or record supplementation. McIntyre argues that Special Conditions of supervised release 7 and 8 contain strict liability provisions that should have been objected to by trial counsel and that this failure to object constituted ineffective assistance. (Judgment, ECF No. 39, Page ID#158). McIntyre argues that he has suffered prejudice because Fifth Amendment Due Process is implicated when there are unconstitutionally vague supervised release conditions. See, e.g., United States v. Shultz, 733 F.3d 616, 622 (6th Cir. 2013) (“Judges imposing supervised release conditions, no less than legislatures passing statutes, must obey the prohibition against vague laws embedded in the Fifth Amendment's Due Process Clause.”).
In support of his argument, McIntyre points to somewhat recent amendments to U.S.S.G. §5D1.3(c) which addressed certain standard conditions of supervised release lacking in mens rea. These newer Standard Conditions became effective in the November 1, 2016 Guidelines, prior to McIntyre's sentencing on September 25, 2017. (See U.S.S.G. Supp. to Appx. C, Amend. 803 (2016)). For example, as to the provision concerning “Association with Criminals”, the Guideline supplement states the following reason for the Amendment:
“Eighth, the amendment revises and clarifies the conditions mandating that the defendant not associate with persons engaged in criminal activity or persons convicted of a felony unless granted permission to do so by the probation officer, §§5B1.3(c)(9) and 5D1.3(c)(9). As amended, the condition requires that the defendant must not ‘communicate or interact with' any person whom the defendant ‘knows' to be engaged in ‘criminal activity' and prohibits the defendant from communicating or interacting with those whom the defendant ‘knows' to have been ‘convicted of a felony' without advance permission of the probation officer.
These revisions address concerns expressed by the Seventh Circuit that the condition is vague and lacks a mens rea requirement. See United States v. Kappes, 782 F.3d 828, 848-49 (7th Cir. 2015); see also United States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010) (upholding the condition by interpreting it to have an implicit mens rea requirement). The revision adds an express mental state requirement and replaces the term ‘associate' with more definite language.”(U.S.S.G. Supp. to Appx. C, Amend. 803 (2016) p. 171) (emphasis added).
In the same amendment, the “frequent[ing]” places (where controlled substances are illegally sold) standard condition (analogous to the “frequent[ing] and patroniz[ing]” conditions herein) was eliminated. (U.S.S.G. Supp. to Appx. C, Amend. 803 (2016) p. 173) (emphasis added).
As noted by the Sentencing Commission, the Seventh Circuit had previously reversed where the special condition prohibiting “association” with someone convicted of a felony both lacked mens rea and was “fatally vague”. United States v. Kappes, 782 F.3d 828, 848-849 (7th Cir. 2015), quoting United States v. Thompson, 777 F.3d 368, 376-377 (7th Cir. 2015). Other Circuits have also reversed supervised release conditions on similar Due Process grounds based on vagueness and/or strict liability. See, e.g., United States v. Washington, 893 F.3d 1076, 1081-1082 (8th Cir. 2018) (“association” with gang condition); United States v. Hall, 912 F.3d 1224, 1226-1227 (9th Cir. 2019).
Here, McIntyre's Special Conditions 7 and 8, while not addressed specifically in the Sentencing Guideline Amendments, are similar in that they impose strict liability for “associat[ing]” with minors or “frequent[ing]” an indefinite listing of places that minors “congregate” without any proof required of his knowledge or intent. Similarly, he is strictly liable for “patroniz[ing]” places where prohibited material is “available” without the Government again being required to show subjective intent to violate condition. (Judgment, ECF No. 39, Page ID#158). The failure to object to these release conditions was both objectively unreasonable and prejudicial to McIntyre. These conditions are of a mandatory nature and could have been challenged, as they are imposed in the Judgment, rather than conditions McIntyre may only potentially be subject to on supervised release. The prejudice to McIntyre is not hypothetical. In light of the all of the above, this decision to decline to challenge these specific conditions was not strategic. (Tr. Evid. Hrg., ECF No. 78, Page ID#380).
In addition, while testimony at the evidentiary hearing addressed whether or not these conditions were appropriately ordered in connection with McIntyre's offense of conviction, that was not the core of McIntyre's argument. (Tr. Evid. Hrg., ECF No. 78, Page ID#379-380; Response, ECF No. 70, Page ID#326). He has not challenged the imposition of these conditions in toto, but rather the lack of mens rea contained within them leading to constitutionally erroneous strict liability for violations. Indeed he proposed alternative versions which retain the conditions, but add mens rea. (Motion, ECF No. 66, Page ID#309).
The recent unpublished opinion in United States v. De Leon, 810 Fed.Appx. 384 (6th Cir. 2020), does not change this conclusion. The denial of the plain error challenge to imposition of the “frequenting” condition in De Leon, 810 Fed.Appx. at 389, was based on an apparent Circuit split of cases no longer current since both were decided prior to the November, 2016 effective date of the sentencing guideline amendments addressing the strict liability provisions. See United States v. Munoz, 812 F.3d 809, 823 (10th Cir. 2016) (February 9, 2016); United States v. Phillips, 704 F.3d 754, 767-768 (9th Cir. 2012). And, since Phillips and the Guideline Amendments were issued, the Ninth Circuit has acknowledged that this same “frequent[ing] places” condition is now erroneously imposed in light of the 2016 Guideline Amendments. United States v. Dominguez, 816 Fed.Appx. 78, 8182 (9th Cir. 2020); see also United States v. Smith, 695 Fed.Appx. 854, 858 (6th Cir. 2017) (argument on special condition rendered moot by changes in standard conditions due to guideline amendments).
While the Sixth Circuit has previously affirmed special conditions banning associations with minors, and frequenting places where minors congregate or prohibited material is available, these cases were issued prior to the 2016 guideline Amendments to incorporate mens rea elements into certain standard conditions. See United States v. Shultz, 733 F.3d 616, 619-625 (6th Cir. 2013); United States v. Zobel, 696 F.3d 558, 575 (6th Cir. 2012).
For these reasons, counsel's failure to object to the imposition of the challenged conditions was both objectively unreasonable and prejudicial to McIntyre. Accordingly, the Court grants relief to McIntyre on Ground Four. And, because these conditions of supervised release are part of a sentencing court's analysis under 18 U.S.C. §3553(a), plenary resentencing is the relief ordered. See 18 U.S.C. §3583(d)(1)-(3).
For these reasons, the Motion is granted in part based on the claim raised in Ground Four. McIntyre's conviction under Count One remains in place, but his sentence is vacated and he shall be resentenced de novo.
III.
Certificate of Appealability as to Ground One
Even though the Court is granting the Motion in part (as to Ground Four), since it is denying relief on Ground One, it must address whether it will grant a Certificate of Appealability (“COA”) as to that Ground. Rules Governing Section 2255 Proceedings Rule 11(a) (“.. .The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant... If the court issues a certificate, the court must state the specific issue or issues that satisfy the showing required by 28 U.S.C. § 2253(c)(2).”). A petitioner can receive a Certificate of Appealability if there is a “substantial showing of the denial of a constitutional right.” 28 U.S.C. §2253(c)(2).
For a COA to be granted when a district court denies a claim on procedural grounds, the petitioner must show “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595 (2000). When the claim is denied on constitutional grounds, the COA standard in 28 U.S.C. §2253(c)(2) is met when “jurists of reason could disagree with the district court's resolution of [petitioner's] constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029 (2003). The Supreme Court noted in Miller-El that the standard for issuing a “COA does not require a showing that the appeal will succeed” under the rule of Slack. Miller-El, 537 U.S. at 337 citing Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595 (2000).
The Court declines to issue a certificate of appealability as to Ground One. McIntyre did not present proofs at the evidentiary hearing related to his plea and conviction since he was focused on the sentencing aspect of his §2255 claims. (Tr. Evid. Hrg., ECF No. 78, Page ID#351, 382). His claim in Ground One, accordingly, did not “show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. For the reasons discussed above, jurists of reason would not “disagree with” or find “debatable” the Court's denial of the Motion in part as to Ground One. To the extent this Ground also addresses sentencing-based claims of ineffectiveness, (Pro See 2255, ECF No. 46, Page ID#180, 192), those have been resolved in the Court's ruling on Ground Four of the Motion. For these reasons, a Certificate of Appealability is denied as to Ground One.
Conclusion
For the foregoing reasons, the Motion to Vacate Judgment under 28 U.S.C. §2255 is granted in part and denied in part. McIntyre's conviction under Count One remains, but his sentence is vacated. He shall be resentenced.
SO ORDERED.