Opinion
Case No. 97-20005-JAR, 01-3479-JAR
January 8, 2003.
MEMORANDUM AND ORDER DENYING MOTION TO VACATE SENTENCE
This case comes before the court upon Defendant/Petitioner Spencer Jones's pro se Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 (Doc. 189). The Court has thoroughly reviewed the petitioner's pleadings and the record he submitted in support of this motion. For the following reasons, the Court concludes that the petitioner is not entitled to relief and the Court therefore denies the motion to vacate, and dismisses this action.
This matter has been assigned to the undersigned Judge, because the Honorable Dale E. Saffels, who sentenced this defendant, is now deceased.
PROCEDURAL HISTORY
In an Indictment filed on January 21, 1997, petitioner Spencer Jones was charged with two counts of distribution of crack cocaine. While petitioner was on pre-trial release on these charges, an FBI informant purchased crack cocaine from petitioner. In a Second Superseding Indictment filed on June 11, 1997, petitioner was charged with two additional counts, to wit: an additional count of distribution, as well as a count of using or carrying a firearm during the commission of that offense. Petitioner plead guilty to the original two counts of distribution and was sentenced on April 20, 1998 to 324 months of imprisonment. Petitioner appealed that sentence; and the Tenth Circuit vacated the sentence and remanded, because the trial court had failed to make particularized findings regarding petitioner's objections to the pre-sentence report. After another sentencing hearing, the trial court, on October 14, 1999, sentenced petitioner to 210 months of imprisonment. Petitioner appealed this sentence, citing as error, the trial court's application of a two level enhancement for possession of a firearm during the distribution of a controlled substance. The Tenth Circuit affirmed the sentence on August 30, 2000. In an unpublished opinion, the Tenth Circuit found that there was sufficient credible evidence in the record to support the enhancement. Petitioner then filed a petition for writ of certiorari, which the Supreme Court denied on December 4, 2000. More than a year later, petitioner filed this motion to vacate the sentence on December 10, 2001.
Jones v. United States, 168 F.3d 1217 (10th Cir. 1999).
United States v. Jones, NO. 99-3332, 221 F.3d 1353 (10th Cir. Aug. 04, 2000).
United States v. Jones, 531 U.S. 1043, 121 S.Ct. 641, 148 L.Ed.2d 547 (2000).
ANALYSIS
In this motion to vacate sentence pursuant to 28 U.S.C. § 2255, petitioner raises four grounds for relief:
(1) Ineffective assistance of counsel during the sentencing process, in that counsel "failed to seek, obtain, review and use available material for the impeachment of Anthony Reed with reference to the alleged presence of a firearm during and/or in relation to the relevant conduct involved in Mr. Jones' case."
(2) Denial of Due Process, in the prosecution's use of "false evidence to establish the alleged presence of a firearm during and/or in relation to the relevant conduct involved in Mr. Jones' case. New evidence, not available at the time of sentencing, establishes that Anthony Reed falsely stated that a firearm was present during and/or in relation to the relevant conduct involved in Mr. Jones' case."
(3) Ineffective assistance of counsel during the sentencing process that was prejudicial by virtue of counsel's "objectively unreasonable performance . . . during the sentencing process, when counsel unprofessionally failed to move for appropriate downward departure in Mr. Jones' case."
(4) Ineffective assistance of counsel in the sentencing and direct appeal process, in that petitioner was prejudiced "by the cumulative impact of multiple deficiencies or errors by counsel during the sentencing and direct appeal process."
Generally, the court may summarily dismiss a § 2255 petition, if the motion and record conclusively show that the petitioner is not entitled to relief. The motion and record conclusively demonstrate that the petitioner is not entitled to relief in this case because the statute of limitation has run on petitioner's § 2255 motion. Section 2255 of Title 2, United States Code, provides for a one year statute of limitation which begins to run when the judgment of conviction becomes final. In this case, petitioner's conviction became final on December 4, 2000, when the Supreme Court denied his petition for certiorari. Petitioner's motion, filed December 10, 2001, is thus barred. And, petitioner neither urges, nor does the record illustrate, that equitable tolling ought to be applied in this case.
United States v. Marr, 856 F.2d 1471, 1472-723 (10th Cir. 1988).
United States v. Simmonds, 111 F.3d 737, 744 (10th Cir. 1997).
See Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), cert. denied, 531 U.S. 1194 (2001) (equitable tolling is only available "when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control.") See also Miller v. Marr, 141 F.3d 976, 978 (10th Cir. 1998) (refusing to apply equitable tolling because petitioner "provided no specificity regarding the alleged lack of access and the steps he took to diligently pursue his federal claims").
Even if the Court were to consider the claims raised by the defendant, the Court would summarily dismiss them, for the motion and the record fail to demonstrate that he is entitled to relief. Petitioner's third ground for relief is that counsel failed to act with the requisite competence and professionalism in failing to move for "appropriate downward departure." Even construing petitioner's pro se documents liberally, the Court cannot find that petitioner identifies which Sentencing Guidelines he arguably qualified for a downward departure. Moreover, petitioner does not explain why this was not or could not have been resolved on direct appeal. The record reveals that petitioner was represented by counsel Peter Koppe at his first sentencing in 1998; and was represented by counsel Joe Johnson for his direct appeal of the 1998 sentence, his re-sentencing in 1999 and his appeal of the 1999 sentence. The fact that petitioner had different counsel after his first sentencing weighs against any finding that he was precluded by the same counsel's ineffective assistance from raising, on direct appeal, his counsel's failure to move for downward departure.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam).
United States v. Perez, 129 F.3d 255 (2d Cir. 1997), cert. denied, 525 U.S. 953 (1998) (absent special circumstances, "§ 2255 may not relitigate issues that were raised and considered on direct appeal."); United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (an intervening change in law is one such special circumstance.)
The other three grounds raised by petitioner are equally without merit. Petitioner claims that the two level enhancement for possession of a firearm should not have been applied, and that the evidence it was based on, the testimony of informant Anthony Reed ("Reed"), was false. First, petitioner received a two level enhancement, bringing his offense level to 34 and a criminal history category of four. This left his sentencing range as 210-262 months; defendant received 210 months. Assuming arguendo, that petitioner did not receive the enhancement, he would have had an offense level of 32 and a criminal history of four; this allows a sentencing range of 168-210 months. Thus, even if the two level enhancement had not been applied, it was still possible for petitioner to receive a 210 month sentence.
Petitioner argues that he was prejudiced in two respects: the ineffective assistance of counsel in failing to impeach Reed with evidence that Reed had similarly lied about another defendant's possession of a weapon; and the government's violation of due process in failing to disclose to petitioner and his counsel that Reed had lied or fabricated evidence about another defendant's possession of a weapon, so that counsel could use such information to impeach Reed.
By alleging that the prosecution failed to disclose exculpatory evidence, petitioner raises a serious allegation; for failure to disclose Brady information, is violative of due process. A petitioner can obtain relief under § 2255 on the basis of an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict, or sentence. A petitioner can also obtain relief on the basis of non-constitutional error, by showing a fundamental defect in the proceedings that resulted in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process.
Ballinger v. Kerby, 3 F.3d 1371, 1376 (10th Cir. 1993).
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).
Reed v. Farley, 512 U.S. 339, 353-354 (1994).
Nothing in the record supports petitioner's serious allegations. He makes a bald assertion that the record in United States v. Wendell Anderson, 97-20041, demonstrates that Reed attempted to implicate defendant Anderson by falsely stating that Anderson had possession of a firearm during a drug transaction. This, petitioner argues, was exculpatory evidence, that he only recently discovered, and that the prosecution should have disclosed to him. This failure to disclose, petitioner argues, denied him due process and materially prejudiced him. Had his counsel been aware of this, the court would have declined to find that the preponderance of evidence supported a two level enhancement.
Petitioner's argument fails for two reasons. First, petitioner points to nothing in the record that establishes that Reed fabricated evidence in the Anderson case. The Court reviewed the docket sheet of the Anderson case, which is appended to the record offered by petitioner, and finds nothing that suggests a hearing or reconsideration of sentencing on the basis of allegedly fabricated evidence. Anderson pleaded guilty, was sentenced, and appealed the sentence; but subsequently the appeal was dismissed. Later, the United States filed under seal, a motion for reduction of sentence, which suggests that Anderson was cooperating with the United States in some manner. All of these events occurred between 1997 and May 3, 1999. Nothing in the Anderson record demonstrates that there was a dispute concerning the veracity of Reed in connection with a sentencing issue.
More importantly, assuming arguendo, that Reed falsely implicated Anderson for possession of a gun, that fact would not have made a material difference in petitioner's sentencing. In this case, petitioner's counsel argued that Reed was not credible; but, as the trial court found and the Tenth Circuit affirmed, there was independent and contemporaneous evidence, and the preponderance of the evidence, showed that petitioner was in possession of a firearm during a drug distribution. The FBI made a controlled purchase of crack cocaine from petitioner; Reed, acting as an informant, purchased the cocaine from petitioner. During their audiotape recorded transaction, petitioner entered Reed's car and petitioner told Reed to hold his "strap." Petitioner left the car to obtain the cocaine, and while Reed waited alone in the car, Reed stated that petitioner had left his gun. Reed then gave a detailed description of the gun, including the serial numbers. Although agents did not arrest petitioner on that day and although they did not recover the gun, they corroborated through a search by serial number, that Reed's description of the manufacturer, model and caliber of the gun matched the gun bearing that serial number. Moreover, because this was a "controlled" purchase of cocaine, the FBI agents had searched Reed's vehicle and person before the buy and determined that there was neither cocaine nor weapons in Reed's possession prior to the transaction.
During the sentencing hearing, petitioner testified that he had told Reed to hold his strap, but petitioner claimed that "strap" meant beer. In addition, petitioner's counsel impeached Reed's credibility, by establishing that Reed was a paid FBI informant. But, the court concluded that the preponderance of the evidence was that petitioner possessed a gun during this transaction, relying on petitioner's admission, the independent corroboration of Reed's description of the gun, and the testimony of an FBI agent, that in his experience in working drug and street offenses, "strap" meant gun. Because the preponderance of the evidence established that petitioner had possession of a gun, and because the preponderance of the evidence was not dependent on the credibility of Reed, to the extent that the prosecution failed to disclose evidence useful to impeach Reed, this failure was not prejudicial. And, to the extent that petitioner's counsel was rendered ineffective by not having such impeachment material, these errors were not prejudicial to petitioner, such that counsel's performance was not ineffective as defined in Strickland v. Washington.
466 U.S. 668, 687, 690 (1984) (holding that to establish a claim for ineffective assistance of counsel, a defendant must show that his counsel's performance fell below an objective standard of reasonableness, and that but for his counsel's errors, the result of the proceeding would have been different).
Because defendant's motion and the files and records of his case conclusively show that he is entitled to no relief, the Court denies his request for a hearing.
United States v. Estrada, 849 F.2d 1304, 1306 (10th Cir. 1988).
IT IS THEREFORE ORDERED that the Motion to Vacate Sentence Pursuant to 28 U.S.C. § 2255 is DENIED.