Opinion
Criminal No. 01-33 ADM/ESS, Civil No. 04-86 ADM
March 23, 2004
Wilbert Anderson, pro se, for Plaintiff
Chris S. Wilton, Minneapolis, MN, on behalf of Plaintiff
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Judge on Petitioner Wilbert Anderson's ("Petitioner" or "Anderson") Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 [Crim. Docket No. 48; Civ. Docket No. 1]. Petitioner seeks an evidentiary hearing to address the issues raised in his petition. Respondent United States of America ("Respondent") moves to dismiss Petitioner's Motion, or in the alternative, deny the Motion on the merits [Crim. Docket No. 55]. Additionally, Petitioner requests that his § 2255 Motion be held in abeyance pending the United States Supreme Court's decision inBlakely v. Washington 47 P.3d 149 (Wash.Ct.App. 2003),cert. granted. 124 S.Ct. 429 (Oct. 20, 2003) (No. 02-1632).See Petitioner's Motion to Hold in Abeyance Movant's 28 U.S.C. § 2255 Motion [Crim. Docket No. 50]. For the following reasons, Petitioner's Motions are denied and Respondent's Motion to Dismiss is granted.
II. BACKGROUND
On July 17, 2001, Petitioner pled guilty to possessing a stolen firearm in violation of 18 U.S.C. § 922(j) and 924(a)(2), and agreed to waive his right to collaterally challenge his sentence under 28 U.S.C. § 2255, provided that he was sentenced within the guideline range. Plea Agreement ¶¶ 1, 11 [Crim. Docket No. 29]. The maximum statutory penalty for possession of a stolen firearm under 18 U.S.C. § 922(j) and 924(a)(2) is 120 months. See 18 U.S.C. § 924(a)(2). According to the presentence report issued on September 14, 2001, Petitioner's criminal history category was five, with a guideline range of 92-115 months. The presentence report also recommended adjusting Petitioner's sentence upward under guideline § 2K2.1(b)(5), which requires a four level enhancement if the defendant used or possessed a firearm in connection with another felony. See U.S. Sentencing Guidelines Manual § 2K2.1(b)(5). The enhancement applied to Anderson's sentence because he shot at the legs of his girlfriend, LaTanya Evans ("Evans"). Transcript of Sentencing Hr'g at 13 [Crim. Docket No. 40].Anderson's objections to the enhancement were considered at the sentencing hearing on November 2, 2001. Id. at 3-5. The government offered the testimony of two Minneapolis police officers who investigated the underlying felony committed by Petitioner. Id. at 6, 28. The government also submitted 911 tapes and tapes of police interviews of Evans. Id. at 9-13, 15-16, 28-29, 35. Petitioner called only one witness, Sean I. Wells. Id. at 44. Based on the testimony and the exhibits, this Court ruled that § 2K2.1(b)(5) applied and sentenced Petitioner to 98 months. Id. at 78.
Petitioner appealed his sentence and argued that according to the Supreme Court's decision in Apprendi v. New Jersey, 30 U.S. 466 (2000), the government must prove beyond a reasonable doubt that Anderson committed another felony offense in order to apply a four level sentencing enhancement under § 2K2.1(b)(5). United States v. Anderson, 45 Fed. Appx. 549 (8th Cir. 2002). The Eighth Circuit rejected Petitioner's arguments and affirmed his sentence, holding that Apprendi did not apply because the enhancement did not increase Petitioner's sentence above the statutory maximum. Id. at 551. Petitioner filed a § 2255 habeas motion to vacate his sentence on January 12, 2004.
III. DISCUSSION
Under 28 U.S.C. § 2255, Petitioner must show that he is entitled to relief by demonstrating that his sentence was imposed "in violation of the Constitution or the laws of the United States," or that the sentence was "in excess of the maximum allowed by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255.
A. Waiver
Respondent contends that Petitioner waived his right to collaterally attack his sentence when he knowingly and voluntarily entered into a plea agreement which limited his ability to appeal. Petitioner agreed to waive his right to collaterally challenge his sentence if he was sentenced within the guideline range of 92-115 months. Plea Agreement ¶ 11. Because this Court imposed a 98 month prison term, the waiver is enforceable so long as Petitioner entered into the plea agreement knowingly and voluntarily. See DeRoo v. United States, 223 F.3d 919, 923 (8th Cir. 2000); United States v. Morrison, 171 F.3d 567, 568 (8th Cir. 1999). Petitioner does not assert that he entered an unknowing or involuntary plea. Therefore, based on Petitioner's knowing waiver in the plea agreement, he is foreclosed from § 2255 relief.
B. Merits of § 2255 Claim
Assuming arguendo that Petitioner may seek collateral relief, his § 2255 claim lacks merit. First, Petitioner argues that the facts supporting the district court's approval of a level four enhancement should have been proven beyond a reasonable doubt underApprendi. However, because the Eighth Circuit rejected this argument on direct appeal, Petitioner cannot relitigate the issue through a § 2255 action unless the law has subsequently changed. See United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001) (holding that issues raised and decided on direct appeal ordinarily cannot be relitigated in a § 2255 motion); see also English v. United States, 998 F.2d 609, 613 (8th Cir. 1993) (allowing an exception to this rule where there has been an intervening change in the law).
Petitioner asserts that the Supreme Court's anticipated decision inBlakely could change the law and possibly affect disposition of his Apprendi claim. See Blakely, 47 P.3d 149,cert. granted. 124 S.Ct. 429 (Oct. 20, 2003) (No. 02-1632). The Supreme Court granted certiorari in Blakely to determine whether facts supporting an upward departure must be proved according to the procedures outlined in Apprendi, where the defendant is sentenced above the recommended sentencing range but under the statutory maximum. See 20 No. 23 West's Criminal Law News 63, Nov. 2003 (20 NO. 23 CRIMLWNEWS 63). The Court's determination in Blakely will not impact Petitioner's Apprendi claim, however, because his 98-month sentence was within the 92-115 month range recommended by the sentencing guidelines, and did not exceed the maximum penalty of 120 months. Therefore, Petitioner's Motion to hold his § 2255 Motion in Abeyance is denied, and the Court declines to revisit hisApprendi claim.
Petitioner's second argument is that he received ineffective assistance of counsel because his attorney failed to interview Evans or have her testify at the sentencing hearing. Petitioner claims that Evans would have testified that she was taking medication for a "psychiatric illness," which could have led to the conclusion that she exaggerated the events of October 26, 2000, which led to Petitioner's sentencing enhancement.
To succeed in his claim of ineffective assistance of counsel in violation of the Sixth Amendment, Petitioner must establish both deficient representation and actual prejudice to his defense.Strickland v. Washington 466 U.S. 668, 687 (1984); United States v. Robinson, 301 F.3d 923, 925 (8th Cir. 2002). This standard presents a "heavy burden," requiring Petitioner to prove that his counsel "failed to exercise the customary skills and diligence that a reasonably competent attorney would [have] exhibited under similar circumstances."United States v. Apfel 97 F.3d 1074, 1076 (8th Cir. 1996) (citation omitted). Prejudice is shown when there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Judicial scrutiny of counsel's performance is highly deferential and the defendant must overcome the presumption that the challenged action of counsel may be construed as "sound trial strategy." Strickland, 466 U.S. at 689 (citing Michel v. Louisiana. 350 U.S. 91, 101 (1955)).
Petitioner fails to meet the rigid Strickland standard. Even assuming that Anderson's counsel erred in failing to interview Evans or call her to testify, Anderson has not shown that these alleged mistakes in any way prejudiced his defense. Consequently, Anderson fails to state a claim for ineffective assistance of counsel or show that relief is warranted under § 2255. Additionally, Petitioner has not established the necessity of an evidentiary hearing because he does not allege disputed facts, which if proved would entitle him to habeas relief.See Newton v. Kemna, 354 F.3d 776 (8th Cir. 2003). Therefore, his request for an evidentiary hearing is also denied.
IV. CONCLUSION
Based upon the foregoing, and all of the files, records, and proceedings herein, IT IS HEREBY ORDERED that:1. Petitioner's Motion to Vacate, Set Aside, or Correct Sentence [Civ. Docket No. 1; Crim. Docket No. 48] is DENIED,
2. Petitioner's Request for an evidentiary hearing is DENIED,
3. Petitioner's Motion to Hold in Abeyance Movant's 28 U.S.C. § 2255 Motion [Crim. Docket No. 50] is DENIED,
4. Respondent's Motion to Dismiss [Crim. Docket No. 55] is GRANTED,
5. Petitioner's Motion for Extension of Time to File a Traverse to Government's Motion to Dismiss [Crim. Docket No. 56] is DENIED.