Opinion
3:17-cr-00435-JO
03-26-2021
UNITED STATES OF AMERICA, Plaintiff, v. JODY TREMAYNE WAFER, Defendant.
OPINION AND ORDER
Robert E. Jones, United States District Judge
Defendant Jody Tremayne Wafer pleaded guilty to conspiracy to distribute marijuana and to use of a firearm in furtherance of a drug trafficking crime. This court sentenced Defendant to no time in prison on the marijuana count and to 84 months in prison on the firearm count.
Defendant, representing himself, now moves to vacate his conviction under 28 U.S.C. § 2255, claiming that he received ineffective assistance of counsel. ECF No. 258. For the following reasons, I deny Defendant's Motion.
LEGAL STANDARDS
I. Motions Under 28 U.S.C. § 2255
Under 28 U.S.C. § 2255, a federal prisoner may file a motion in the court that imposed the sentence to vacate, set aside, or correct the sentence because:
[T]he sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack . . . .28 U.S.C. § 2255(a). To prevail on a motion under § 2255, a defendant must show that an error of constitutional magnitude occurred and that the error had a substantial and injurious effect or influence on the guilty plea or the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).
II. Ineffective Assistance of Counsel
To prevail on a claim for ineffective assistance of counsel, the defendant must show both that his attorney's performance was unreasonable under prevailing professional standards and that the deficient performance prejudiced his defense. See Strickland v. Washington, 466 U.S. 668, 694-95 (1984). If the defendant fails to show either incompetent performance or prejudice, the court “must dismiss the claim.” United States v. Sanchez-Cervantes, 282 F.3d 664, 672 (9th Cir. 2002). “Review of counsel's performance is highly deferential.” United States v. Ferreira-Alameda, 815 F.2d 1251, 1253 (9th Cir. 1986). To establish prejudice, the defendant must show “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694.
DISCUSSION
Defendant contends that his conviction should be vacated because Congress's decision to “proscrib[e] marijuana as a controlled dangerous substance in 1970 was political, arbitrary, unreasonable and unconstitutional contravening Amendments IV and V of the United States Constitution.” Def.'s Mem. 3, ECF No. 259. Defendant further argues that his lawyer was ineffective for failing to challenge marijuana's legal status. Def.'s Mot. 4, ECF No. 258.
I. Strict Scrutiny Review Does Not Apply
Defendant argues that this court should use the strict scrutiny standard of review to evaluate his challenge to the federal prohibition of marijuana. Strict scrutiny review applies to the denial of a fundamental right. See Washington v. Glucksberg, 521 U.S. 702, 721 (1997). The Due Process Clause “specially protects those fundamental rights and liberties which are, objectively, deeply rooted in this Nation's history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if they were sacrifices.” Id. (internal quotation marks and citations omitted). “[T]he right must be carefully stated and narrowly identified before the ensuing analysis can proceed.” Raich v. Gonzales, 500 F.3d 850, 864 (9th Cir. 2007) (Raich II); Glucksberg, 521 U.S. at 721 (requiring “a ‘careful description' of the asserted fundamental liberty interest”).
Here, Defendant contends he has been deprived of his fundamental right to be free from physical restraint. See Chapman v. United States, 500 U.S. 453, 465 (1991) (recognizing fundamental right to liberty “in the sense that the government may not punish” a person “unless and until it proves [the person's] guilt beyond a reasonable doubt at a criminal trial conducted in accordance with the relevant constitutional guarantees”). However, Defendant's description of the fundamental right at stake is too broad. For example, in Raich II, the Ninth Circuit addressed the claim of a plaintiff who sought to use marijuana medicinally, asserting a fundamental right to make medical decisions needed to preserve her bodily integrity, avoid intolerable physical pain, and preserve her life. Id. The court rejected the plaintiff's “carefully crafted” asserted interest because it did not “narrowly and accurately reflect the right that she seeks to vindicate. Conspicuously missing from [the plaintiff's] asserted fundamental right is its centerpiece: that she seeks the right to use marijuana to preserve bodily integrity, avoid pain, and preserve her life.” Id. (original italics) (footnote omitted). Similarly, here Defendant's assertion of the fundamental right to liberty is based on his argument that the federal prohibition of marijuana is “unreasonable and unconstitutional.” Def.'s Reply 2, ECF No. 266. In effect, Defendant asks this court “to determine whether he has a fundamental right to use, sell, or possess marijuana without facing incarceration.” United States v. Green, 14-cr-6038 (EAW), 2016 WL 11483508, at *3 (W.D.N.Y. June 27, 2016) (addressing similar claim). As Defendant acknowledges, “marijuana is not a fundamental right.” Def.'s Reply 2. Courts addressing challenges to the federal prohibition of marijuana have consistently rejected Defendant's characterization of the fundamental right at stake. United States v. Kiffer, 477 F.2d 349, 352-53 (2d Cir. 1973); United States v. Oakland Cannabis Buyers' Co-op, 259 Fed.Appx. 936, 938 (9th Cir. 2007) (rational basis review applies to the defendants' challenge to federal prohibition of medical marijuana).
In his reply brief at 2-3, Defendant quotes the following statement from the Kiffer opinion: “in the absence of compelling justification, the police power does not extend so far as to permit the Government to protect an individual against himself and that the concern for public health and safety is relevant only insofar as the actions of one individual may threaten the well-being of others.” 477 F.2d at 354. But the Kiffer opinion prefaces the quoted statement with the phrase, “An argument might perhaps be made, ” so the quoted statement is not the court's holding. Id. The Kiffer opinion distinguished between the federal prohibition on personal possession and use of marijuana, which was not at issue, versus the prohibition on the commercial distribution of marijuana to others, which was at issue. 477 F.2d at 355. Similarly, here the issue is the validity of the federal prohibition of possession of marijuana with intent to distribute, not the prohibition on the personal use or possession of marijuana.
II. Defendant's Challenge Fails Under Rational Basis Review
Because there is no fundamental right to distribute marijuana, this court applies the rational basis standard of review, which requires that courts uphold a statutory classification “‘if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.'” Oakland Cannabis Buyers' Co-op, 259 Fed.Appx. at 938 (quoting FCC v. Beach Commc'ns, Inc., 508 U.S. 312, 320 (1993)). Under rational basis review, the Ninth Circuit has rejected due process challenges to the federal prohibition of marijuana. United States v. Christie, 825 F.3d 1048, 1066 (9th Cir. 2016) (rejecting Fifth Amendment due process challenge) (citing United States v. Miroyan, 577 F.2d 489, 495 (9th Cir. 1978) (rejecting challenge to federal classification of marijuana), partially overruled on other grounds as recognized by United States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir. 2012)); Sacramento Nonprofit Collective v. Holder, 552 Fed.Appx. 680, 683 (9th Cir. 2014); see also Kiffer, 477 F.2d at 355 (rejecting argument that “Congress acted irrationally in prohibiting the commercial distribution of marihuana”). In Christie, the Ninth Circuit explained that “while it may be true that marijuana's legal status continues to evolve, as does its standing in the medical and scientific communities, those developments do not come close to demonstrating that changes since 1978 have left Miroyan's ‘central holding obsolete.'” Id. (quoting Planned Parenthood v. Casey, 505 U.S. 833, 860 (1992)); see also James v. City of Costa Mesa, 700 F.3d 394, 405 (9th Cir. 2012) (“Local decriminalization notwithstanding, the unambiguous federal prohibitions on medical marijuana . . . continue to apply”) (original italics)). Defendant's due process challenge to the federal prohibition of marijuana therefore fails. Similarly, to the extent Defendant relies on the right to equal protection, that challenge also fails. See Chapman, 500 U.S. at 465 (“an argument based on equal protection essentially duplicates an argument based on due process”).
Because a challenge to the federal prohibition of marijuana distribution would have been futile, Defendant cannot show that he was prejudiced by his counsel's failure to raise the issue. Were this court to hold otherwise, defense counsel would be required to raise every conceivable issue despite controlling precedent to the contrary. Gov't Resp. 6, ECF No. 264.
Defendant argues that he was deprived of a property interest without due process. Because marijuana is contraband per se under federal law, Defendant has no cognizable property interest at stake. See Gonzales v. Raich, 545 U.S. 1, 27 (2005) (“The [Controlled Substances Act] designates marijuana as contraband for any purpose.”); United States v. Jeffers, 342 U.S. 48, 54 (1951) (the defendant not entitled to return of illegally seized contraband).
Defendant also argues that he is a political prisoner and that he cannot be convicted of a victimless crime. These arguments have no basis in law or fact.
Here, “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(b). I therefore deny an evidentiary hearing.
CONCLUSION
Defendant's Motion to Vacate, Set Aside or Correct his Sentence under 28 U.S.C. § 2255, ECF No. 258, is DENIED.
IT IS SO ORDERED.