Opinion
Civil Case No. 03-3441-SAC, Criminal Case No. 02-40041-01-SAC.
December 2, 2004
MEMORANDUM AND ORDER
The case comes before the court on the defendant's motion to vacate, set aside or correct sentence under 28 U.S.C. § 2255 arguing that the court did not establish a sufficient factual basis for his guilty plea to count four, that his trial counsel was ineffective in advising him to plead guilty to count four, and that he is actually innocent of count four. (Dk. 26). Count four charged the defendant with conspiracy to commit interference with commerce by robbery in violation of 18 U.S.C. § 371. The defendant premises all of his arguments on the proposition that his robbery of another person's home out of which drugs were being sold did not interfere with interstate commerce. The government has filed a response opposing the defendant's motion. (Dk. 28). Having reviewed the matters asserted and researched the relevant law governing these matters, the court issues the following as its decision on the defendant's motion.
PROCEDURAL HISTORY
In March of 2002, the grand jury returned a four-count sealed indictment against the defendant Jason D. Fields. The four counts stem from the defendant's involvement in a robbery of a pawn shop on October 12, 2001, and a robbery of a residence on October 14, 2001, occupied by persons involved in drug trafficking. Count one charged the defendant with committing the pawn shop robbery that affected interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951, and count two charged the defendant with possessing, using, carrying, and brandishing a firearm during and in relation to the pawn shop robbery, a crime of violence, in violation of 18 U.S.C. § 924(c). Count three charged the defendant with conspiracy to rob occupants at a drug house thought to be involved in the sale of marijuana, a business operating in and affecting interstate commerce, in violation of the Hobbs Act, 18 U.S.C. § 1951, and count four charged the defendant with personally and through the actions of his co-conspirators of possessing, using, carrying, brandishing, and discharging a firearm during and in relation to the conspiracy to rob persons involved in the sale of drugs, a crime of violence, in violation of 18 U.S.C. § 924(c).
Pursuant to a plea agreement, the defendant admitted his guilt to counts one and four of the indictment and entered a plea of guilty to those counts on August 1, 2002. In exchange for the defendant's plea, the government agreed, in part, to dismiss counts two and three and to recommend the three-level adjustment for acceptance of responsibility. At the time of the plea, the defendant waived the reading of the indictment, said he was satisfied with his attorney's representation of him, indicated he understood the terms of the plea agreement, and admitted he was pleading guilty of his own free will and because he was guilty of the crimes charged. During the change of plea hearing, the government also represented the facts it could prove with respect to count four, and defense counsel agreed the government could offer that evidence and the defendant admitted the evidence that could be offered was true.
On November 5, 2002, the court sentenced the defendant to 51 months on count one and 120 months on count four to be served consecutively to count one. The judgment was filed on November 19, 2002. The defendant took no appeal from his conviction or sentence. The defendant filed his § 2255 motion less than a year later.
GENERAL § 2255 STANDARDS
A district court may grant relief under § 2255 if it determines that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack." 28 U.S.C. § 2255. "Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996); see also United States v. Frady, 456 U.S. 152, 167-68 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996) (citations omitted), cert. denied, 519 U.S. 1134 (1997).
The court must hold an evidentiary hearing on a § 2255 motion "unless the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255; United States v. Galloway, 56 F.3d 1239, 1240 n. 1 (10th Cir. 1995). The burden is with the defendant to allege facts which, if proven, would entitle him or her to relief. See Hatch v. Oklahoma, 58 F.3d 1447, 1471 (10th Cir. 1995), cert. denied, 517 U.S. 1235 (1996). "[T]he allegations must be specific and particularized, not general or conclusory." Id. The court finds that a hearing on the defendant's motion is not necessary because the materials already in the record conclusively show that the defendant is not entitled to relief on his claims.
INEFFECTIVE ASSISTANCE OF COUNSEL
"An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) ("We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.") To show deficient performance, the defendant must show that his counsel's performance was "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997). To show prejudice, the defendant must establish that, but for counsel's unprofessional errors, there was a reasonable probability that the outcome of his conviction and/or sentencing would have been different. Id. at 1245; see Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:
There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). A court can jump to the prejudice prong without first determining whether counsel's performance was deficient:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.Strickland, 466 U.S. at 697.
ANALYSIS AND CONCLUSION
Because the defendant pled guilty and took no direct appeal, the court first must decide if he can demonstrate the cause and prejudice or fundamental miscarriage of justice required to overcome the procedural bar for defaulted claims. If he cannot overcome the procedural bar, then the court may not reach the merits of the claim that his plea was unknowing and involuntary. United States v. Frady, 456 U.S. 152, 165 (1982). As stated above, a meritorious claim of ineffective assistance of counsel constitutes cause and prejudice that overcomes the procedural bar.
The defendant asserts his trial counsel was ineffective. The Tenth Circuit looks to the standard in Hill v. Lockhart for deciding when a guilty plea is invalid because of ineffective assistance of counsel:
The Court held that a prisoner challenging a guilty plea because of ineffective assistance satisfies the prejudice inquiry by showing that the constitutionally ineffective performance "affected the outcome of the plea process. In other words . . . 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 (emphasis added). However, the Court went on to note that courts applying this standard will often review the strength of the prosecutor's case as the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial. See id. at 59-60.Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140 (2002). From the law established in Hill, the Tenth Circuit has fashioned the following rules of procedure:
This court has therefore held that a petitioner's "mere allegation" that he would have insisted on trial but for his counsel's errors, although necessary, is ultimately insufficient to entitle him to relief. See United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Rather, we look to the factual circumstances surrounding the plea to determine whether the petitioner would have proceeded to trial. See id,; United States v. Wright, 43 F.3d 491, 498 (10th Cir. 1994); Lasiter v. Thomas, 89 F.3d 699, 703-04 (10th Cir. 1996).Miller, 262 F.3d at 1072. Besides this prejudice prong, the defendant must prove also that the advice of his counsel "was not within the range of competence demanded of attorneys in criminal cases." United States v. Carr, 80 F.3d 413, 416 (10th Cir. 1996) (citation omitted). Specifically, "a plea may be involuntary if the attorney materially misinforms the defendant of the consequences of the plea." Id. at 418 (quotation omitted).
There is no evidence that the defense counsel's failure to seek a bill of particulars or his advice to plead guilty to count four fell below the range of reasonable competence. As stated earlier, the common thread to all the defendant's contentions is that robbing a person who sells drugs does not satisfy the element of interfering with interstate commerce. "The plain language of the Hobbs Act does not require that a robbery have a substantial effect on interstate commerce. The statute reaches robberies that in any way or degree obstruct, delay, or affect commerce." United States v. Curtis, 344 F.3d 1057, 1070 (10th Cir. 2003) (quotation and citation omitted), cert. denied, 124 S. Ct. 1165 (2004). It is enough for a conviction that the evidence "show only a potential or de minimis effect on interstate commerce." Id. "The Hobbs Act does not require that the commerce affected be legal commerce." United States v. Gueary, 2002 WL 1334867, at *3 (D. Kan. May 22, 2002) (citations omitted). The intended robbery of drugs or money from a drug dealer is treated as the robbery of a business, United States v. Moore, 363 F.3d 631, 636 (7th Cir.), cert. denied, 125 S. Ct. 160 (2004); United States v. Rodriguez, 360 F.3d 949, 955-56 (9th Cir.), cert. denied, 125 S. Ct. 210 (2004); and is part of a relevant class of acts sufficiently broad to impact interstate commerce, United States v. Williams, 342 F.3d 350, 354 (4th Cir. 2003), cert. denied, 124 S. Ct. 1189 (2004); United States v. Marrero, 299 F.3d 653, 655 (7th Cir. 2002), cert. denied, 537 U.S. 1145 (2003). Because drug dealing "is an inherently economic enterprise that affects interstate commerce," robbing a drug dealer is "the kind of act which satisfies the `affecting commerce' element of the Hobbs Act." United States v. Williams, 342 F.3d at 355; see United States v. Rodriguez, 360 F.3d at 956 (drug trafficking is "a field that Congress specifically regulates under its Commerce Clause authority, and which the courts have consistently upheld." (citing in part United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995))).
Count four of the indictment incorporated the Hobbs Act charge alleged in count three which includes the allegation that the victims were "involved in the sale of illegal drugs, particularly marijuana, a business that operates in interstate commerce and which is engaged in interstate commerce and an industry which affects interstate commerce." (Dk. 1). The indictment sufficiently alleged the interstate commerce element. See United States v. Gueary, 2002 Wl 1334867, at *3 (D. Kan. May 22, 2002). Considering the above case law on this element, as well as the plain allegations of the indictment, the defendant could not reasonably argue that he needed a bill of particulars to avoid surprise over the substantive facts to the interstate commerce element in counts three and four.
There is nothing to suggest that defense counsel's advice to enter a plea on count four was outside the range of competence demanded of attorneys in criminal cases. The defendant does not assert or show that the counsel materially misinformed him about the consequences of his plea or about the law governing count four. Based on the well-established law cited above that drug trafficking affects interstate commerce and that robbing a drug dealer satisfies the interstate commerce element under the Hobbs Act, the court finds no error in defense counsel advising a guilty plea to count four. In the government's proffer at the change of plea hearing, the government represented that it could prove the defendant believed the victims of the robbery were involved in the sale of illegal drugs, particularly marijuana, "a business that operates in interstate commerce and which is engaged in interstate commerce and an industry which affects interstate commerce." The government further represented that the defendant and his coconspirators entered the residence armed with weapons and threatened to harm the occupants unless they turned over drugs and money. The defendant and his coconspirators had taken several bags of marijuana when one of the occupants began firing a weapon and drove them out of the house. When the court asked the defendant if the government's proffer was true, the defendant answered, "yes." The court accepts the truth and accuracy of the defendant's sworn statements at the change of plea hearing as "conclusive in the absence of a believable reason justifying" their rejection. United States v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978). There are no believable reasons here for rejecting those sworn statements. The defendant is without a basis in law or fact for claiming he is innocent of count four because his robbery did not impact interstate commerce.
Nor does the defendant come forth with any proof of prejudice in this case. There is nothing in the movant's filings from which to infer a reasonable probability that, but for counsel's alleged errors, the defendant would not have pleaded guilty and would have insisted on going to trial. As outlined in the government's brief, the plea agreement negotiated by the defense counsel substantially benefitted the defendant, as a second § 924(c) conviction would have resulted in a mandatory sentence of twenty-five years. (Dk. 28, p. 2). Having failed to show cause for his procedural default, prejudice resulting from the alleged error, or any fundamental miscarriage of justice, the defendant is barred from testing the legality of matters that should have been raised on direct appeal.
IT IS THEREFORE ORDERED that defendant's motion to vacate and correct sentence under 28 U.S.C. § 2255 (Dk. 26) is denied.