Opinion
Criminal Action Number 98-0301, Section "L" (2)
May 15, 2001
ORDER AND REASONS
Before the Court is Petitioner Alvin Hunter's motion for a writ of habeas corpus to vacate, set aside, or reduce his sentence pursuant to Title 28, United States Code, Section 2255. Petitioner claims that his sentence should be vacated on the grounds that he received ineffective assistance of counsel in violation of his Sixth Amendment rights. Petitioner asserts four bases for his ineffective assistance claim: (1) counsel failed to object at sentencing to the lack of evidence that petitioner sold "crack cocaine" rather than cocaine hydrochloride; (2) counsel failed to object to the two point sentencing enhancement for possession of a firearm during the commission of a drug offense; (3) counsel failed to object to the use of money found in a safe deposit box at sentencing because petitioner did not own all of it; (4) counsel failed to investigate why the defendant was not arrested after his first sale of narcotics to undercover law enforcement officers, to discover whether or not the additional purchases were bad faith attempts to increase the charges, and to argue for a reduction of the base offense since the government allowed the defendant to remain at large in order to protect an ongoing undercover operation. For the following reasons, the petitioner's motion is DENTED.
I. BACKGROUND
On September 16, 1998, in Hammond, Louisiana, the Petitioner was contacted by an individual cooperating with law enforcement agents who stated that he wanted to purchase one half-ounce of cocaine base, otherwise known as "crack cocaine." Petitioner received $400 in cash from the cooperating individual in exchange for 10.1 net grams of a substance that tested positive in laboratory analysis for cocaine base. On October 19, 1998, the Petitioner was again contacted by the cooperating individual to purchase cocaine base. The individuals arranged for the sale of two ounces of cocaine base in exchange for $1,500. The substance Petitioner sold the cooperating individual was sent to a laboratory for analysis where it tested positive for cocaine base, and weighed 47.9 net grams.
After the second sale, law enforcement agents took Petitioner into custody and interviewed him. Petitioner was allowed to remain at large under the belief by law enforcement that he was willing to cooperate with them as a cooperating individual himself. Instead, Petitioner fled to Pontchatoula, Louisiana, and was in hiding there for approximately two months before he was arrested by United States Marshals. He was indicted on December 10, 1998. On March 16, 1999, Petitioner plead guilty to a bill of information charging him with two counts of distributing cocaine base to a cooperating individual. According to federal sentencing guidelines, the offense level was raised two points for the possession of a firearm during the commission of a drug offense, and reduced three points for acceptance of responsibility, for a total of thirty-three points in all. Under the plea agreement between the prosecution and Petitioner, Petitioner waived his rights to an appeal or post-judgment relief. Petitioner further agreed to relinquish any claim to $10,100 that was seized from a safety deposit box held jointly in the Petitioner's name and a female's name.
This Court sentenced the Petitioner to 135 months of imprisonment, and five years of supervised release. Petitioner subsequently timely filed this pro se petition for a writ of habeas corpus on the basis that an ineffective assistance of counsel had led him to enter into an unfair plea agreement and had violated his Sixth Amendment rights. Petitioner requests that his sentence be vacated and that this case be remanded for resentencing.
II. ANALYSIS
A petitioner may receive relief under Title 28, United States Code, Section 2255 only for transgressions of his constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would result, if permitted, in a miscarriage of justice. See United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). Specifically, Hunter alleges in his petition that he received an ineffective assistance of counsel, and thereby had his Sixth Amendment rights violated.
As part of his plea agreement, Petitioner expressly waived all rights to an appeal and post-conviction relief of his sentence on any ground, save an upward departure from the sentencing guideline range. Petitioner's waiver of such rights is ineffective only when the waiver was either uninformed or involuntary; ineffective assistance of counsel claims may escape the waiver clause of the plea agreement only if the ineffective assistance taints the plea agreement and the waiver itself. See United States v. Robinson, 187 F.3d 516 (5th Cir. 1999); United States v. Henderson, 72 F.3d 463 (5th Cir. 1995); United States v. Wilkes, 20 F.3d 651 (5th Cir. 1994); Jones v. United States, 167 F.3d 1142 (7th Cir. 1998).
Petitioner has not asserted any claims in his petition that his waiver of appeal was either uninformed or involuntary. Petitioner has not asserted that the instances of counsel's conduct in question caused him to be prejudiced during the negotiations of the waiver itself. At sentencing Petitioner indicated to the Court that he had received a copy of the presentence investigation report and that he understood all of the elements of the plea agreement. Counsel, therefore, did not provide ineffective assistance by not raising claims that were "knowingly and voluntarily waived in the process of plea bargaining." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). Because Petitioner's waiver of his rights to appeal and post-conviction relief are valid and enforceable, Petitioner's claims for post-conviction relief are barred and must be denied. See United States v. Melancon, 972 F.2d 566, 567 (5th Cir. 1992).
Even if Petitioner's ineffective assistance of counsel claims were not barred by the existence of the waiver, the Petitioner's claims would all fail on the merits. To prevail on a claim for ineffective assistance of counsel, Hunter must show both that 1) his attorney failed to perform according to reasonable professional standards and 2) that these failures caused him prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Strickland and its progeny, Petitioner's claim shall be dismissed unless he succeeds in establishing both deficient performance and actual prejudice. See Id. at 697.
In gauging the deficient performance prong of the Strickland test, "it is necessary to `judge . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.'" Lockhart v. Fretwell, 506 U.S. 364, 371 (1993) (citing Strickland, 466 U.S. at 690). The analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. See Strickland, 466 U.S. at 688-89. The petitioner carries the burden of proving that his counsel's conduct was outside of a wide range of reasonable professional assistance. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986) (citations omitted), cert. denied, 479 U.S. 1021 (1986). An attorney's performance enjoys a strong presumption of adequacy and is to be considered deficient only if it is objectively unreasonable and below the minimum constitutional guarantee of the Sixth Amendment. See United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), cert. denied, 516 U.S. 1165 (1996) (quoting United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995)); United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994).
To satisfy the actual prejudice prong of the Strickland test Petitioner must show that there is a reasonable probability that, but for counsel's deficient performance, the result in the case would have been different. See United States v. Seyfert, 67 F.3d 544, 548 (5th Cir. 1995), citations omitted.
Hunter argues that he was prejudiced by his counsel's failure to object to certain facts presented by the prosecution which were relied on by the court in determining the length of his sentence. The conduct of Petitioner's attorney, James Holt, does not constitute a deficient performance under the Strickland test. Petitioner claims that counsel failed to object at sentencing to a lack of evidence that the Petitioner sold cocaine base as opposed to some other substance. However, there was no reasonable basis for counsel to so object. The identity of the substance as cocaine base, or "crack cocaine," was stipulated to by the Petitioner. Not objecting to a fact that has been stipulated to in a plea agreement is not an ineffective assistance of counsel. See United States v. Vasquez, 194 F.3d 1321, 1999 WL 795266, *1 (10th Cir. 1999) (unpublished opinion); United States v. Brown, 65 F. Supp.2d 321, 323 (E.D.Pa. 1999). Further, Petitioner's claim does not meet the prejudice prong of Strickland. Petitioner has not shown that there is a reasonable probability that "but for" his counsel's error the result would have been different, as there was no evidence or argument at that time that the substance he sold was in fact not crack cocaine.
Similarly, counsel's alleged failure to object to Hunter's two point sentence enhancement for possession of a firearm during the commission of a drug offense fails to satisfy either prong of the Strickland test. Whether or not a firearm enhancement applies is an issue of fact. See United States v. Navarro, 169 F.3d 228, 234 (5th Cir. 1999). Generally a firearm enhancement should be applied in sentencing "unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1(b)(1) Note 3. In this case, there were witnesses for the prosecution who could testify to Petitioner's possession of a firearm during the commission of drug activities, and a firearm was found in the possession of the Petitioner at the time of his arrest. See PSR at 5. In the face of such evidence it was not unreasonable for counsel not to object to the two point firearm enhancement. See United States v. Meyers, 150 F.3d 459, 465 (5th Cir. 1998) (decision of court to adopt the PSR for firearm enhancement will not be overturned where there is a clear factual basis for the enhancement, despite defendant's objections). See also Hall v. United States, 30 F. Supp.2d 883, 894 (E.D.Va. 1998) (holding defendant's counsel not ineffective for failing to object to two point firearm enhancement when testimony existed that defendant held guns at residence, and presentence investigation report indicated defendant carried firearms). Lacking any evidence to prove the weapon was not connected to the offense, counsel had no basis upon which to object.
Additionally, the second prong of the Strickland test is not met by Petitioner in this case because the sentence he received, 135 months, could have still been applied under the sentencing guidelines without the two point enhancement. Thus, it could not be said that there is a reasonable probability that the result in Petitioner's case would have been different but for his counsels alleged error. See United States v. Seyfert, 67 F.3d 544, 548 (5th Cir. 1995) (citations omitted).
Counsel's failure to object to the use of money found in a safe deposit box in the PSR as evidence of continuing drug activities on the part of the Petitioner, does not rise to the level of ineffective assistance of counsel. Under the deficient assistance prong, Petitioner failed to provide a reasonable basis upon which his counsel could have relied to object to the use of the money. Petitioner did not establish another's ownership of the funds, or that the funds came from a source other than his drug trafficking. Without such a basis, counsel's conduct was reasonable under the circumstances. See United States v. Sanders, 74 F. Supp.2d 677 (S.D. Miss. 1999) (failing to press a frivolous point is not ineffective representation on counsel's part).
Counsel's conduct in regards to the found money does not meet the prejudice prong of the Strickland test as the money in question was not the sole determinative evidence of the Petitioner's repeated drug trafficking activities. The prosecution was in possession of other evidence of Petitioner's prior trafficking activities; the money in question was cumulative evidence of that point. Petitioner's sentencing and plea agreement, therefore, would not have been different "but for" his counsel's failure to object to the use of the money in question. Counsel's failure to object to the use of money found in a safe deposit box under the name of the Petitioner, as evidence of continuing drug activities on the part of the Petitioner and as proceeds from the sale of illegal drugs, did not prejudice his client under the Strickland test, and was not ineffective assistance of counsel. See United States v. Sayfert, 67 F.3d 544, 548 (5th Cir. 1995) (citations omitted).
Petitioner's final claim states that his counsel failed to investigate why the defendant was not arrested immediately after his first sale of narcotics to undercover law enforcement officers, failed to discover whether or not the additional purchases were bad faith attempts to increase the charges, and failed to argue for a reduction of the base offense since the government allowed the defendant to remain at large in order to protect an ongoing undercover operation. Because, Petitioner entered into a plea agreement regarding this matter and stipulated to the amount and kind of drugs that he sold, counsel is not required to object or argue against information that his client has knowingly and voluntarily stipulated to in order to be considered constitutionally adequate. Such an objection would be frivolous and might work against his client's best interest of securing a plea agreement. See United States v. Sanders, 74 F. Supp.2d 677 (S.D. Miss. 1999). Petitioner has not carried his burden of proof or overcome the strong presumption that his trial counsel acted outside of a wide range of reasonable professional assistance, failing the deficiency prong of the Strickland test. See Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986) (citations omitted). Petitioner has not shown a reasonable probability that but for counsel's actions the result of his plea agreement would have been different, and therefore his claim also fails the prejudice part of the Stirckland test. See United States v. Sayfert, 67 F.3d 544, 548 (5th Cir. 1995) (citations omitted).
The record reveals no errors that counsel made that could be considered examples of deficient representation or that prejudiced Petitioner. The Court, therefore finds that Petitioner Alvin Hunter was represented by his counsel, James Holt, in accordance with the constitutional protections guaranteed by the Sixth Amendment.
III. CONCLUSION
For the foregoing reasons, Petitioner's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255 is DENTED WITH PREJUDICE.