Opinion
Civ. No. 98-013, SECTION: E.
February 29, 2000.
MEMORANDUM AND ORDER
This matter is before the Court on the motion of Shane McDaniel to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. Mr. McDaniel is presently confined in the Federal Correctional Institution in Beaumont, Texas, serving a sentence of 87 months.
McDaniel is applying for relief on the following grounds: (1) the Court's adoption of his Base Offense Level was erroneous, as the weight of the drugs was inflated because the weight of marijuana involved in one drug transaction was added twice in totaling the amount of drugs involved in the conspiracy; (2) the two-level enhancement under U.S.S.G. 2D1.1(b)(1), as reflected in the Pre-Sentence investigation Report (PSIR) for "possession" of a dangerous weapon was improper; (3) the two-level increase in his base offense level for having a leader/organizer role was erroneous; and (4) his counsel was ineffective because he failed to file a notice of appeal. The United States opposes this motion because McDaniel made an informed and voluntary waiver of his appellate rights as part of a plea bargain agreement, he is procedurally barred from raising these sentence claims because he failed to take a direct appeal, and the sentencing errors he complains of are not constitutional in nature and thus are not a basis for relief under 28 U.S.C. § 2255.
FACTUAL BACKGROUND
On January 23, 1998, Petitioner was named in a one-count indictment charging him with conspiracy to possess with intent to distribute quantities of cocaine, methamphetamine, and marijuana in violation of 21 U.S.C. § 846. McDaniel's counsel advised the Court that, along with co-defendants Christopher Eaton and Michael Ledoux, petitioner wanted to enter a guilty plea.
On April 22, 1998, Petitioner appeared in District Court at 10:00 am., the time scheduled for the re-arraignment. Initially, Mr. McDaniel expressed hesitation at entering a guilty plea, stating that he did not understand what was going on. (Rec. Doc. No. 41, p. 4). Mr. McDaniel was told by the Court, "[i]f you don't understand [the nature of the proceedings], you shouldn't plead until you do." (Rec. No. 41 at 5) The Court also stated that it "wouldn't accept [McDaniel's] plea if I didn't think you fully understood, because that's . . . one of the questions I'm going to ask you: Do you understand [the plea]?" (Rec. Doc. No. 41, p. 5).
At this point, around 11:15 a.m., the Court was adjourned while petitioner conferred with counsel. Petitioner's counsel again contacted the Court and stated that McDaniel had decided that he did want to plead guilty pursuant to a plea agreement. The Court reconvened at 2:30 p.m., and McDaniel was asked, "[d]o you understand that you still have a right to plead not guilty and if I accept your plea of guilty, you would not be entitled to a trial or an appeal of any kind, because by pleading guilty you're giving up those rights?" (Rec. Doc. No. 41, p. 9). Petitioner replied, "Yes, sir." Id.
McDaniel pled guilty to Count One pursuant to a plea agreement. (Rec. Doc. No. 19). In the plea agreement, petitioner waived his right to appeal, except in certain limited circumstances. During the re-arraignment proceeding, the Court asked Petitioner specifically if he was aware of the existence of the following paragraph in his plea agreement and whether he discussed that paragraph with his attorney:
[Except] as otherwise provided in this paragraph, the Defendant hereby expressly waives the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 on the Defendant. And the Defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255. The Defendant, however, reserves the right to appeal the following: A. Any punishment imposed in excess of the statutory maximum, and B. Any punishment to the extent it constitutes an upward departure from the guidelines.
To which the Petitioner responded, "Yes, sir." Id. (Rec. Doc. No. 41, p. 17). Petitioner and his attorney signed the plea agreement on April 22, 1998, and provided the original to the Court, who filed it in the record.
During the re-arraignment proceeding, a typewritten copy of the factual basis for the charge was furnished to the Court. It was signed by defense counsel and by McDaniel and Eaton. (Rec. Doc. No. 20). During the re-arraignment, the Court asked McDaniel, "Do you understand the Government's evidence and do you agree that that's what you did?." (Rec. Doc. No. 41, p. 18-19). McDaniel replied, "Yes, sir."
The Factual Basis recites a number of critical facts about McDaniel, all of which he readily agreed that he did during the re-arraignment proceeding. In pertinent part, the Factual Basis provides that co-conspirator Elaine Donaldson was arrested by FBI agents transporting 83 lbs. of marijuana for Shane McDaniel. A Cooperating Witness (CW) stated that he purchased 894.1 grams of marijuana from McDaniel in November, 1997, a transaction recorded on hidden audio tapes. On December 9, 1997, the CW went to McDaniel's residence, and again recorded a conversation between the CW and co-defendant Ledoux. In the conversation, Ledoux stated that he, McDaniel, and Eaton were expecting a load of marijuana, methamphetamine, and cocaine within a week, and they discussed the CW purchasing 20 lbs. of marijuana from McDaniel.
McDaniel was arrested by FBI agents on December 22, 1997, and after waiving his Miranda rights, gave inculpatory statements. He stated that he began selling marijuana when he moved to New Orleans in mid-1996. He advised that his first supplier was Scott Czerwonka, he was next supplied by Iman Hussein and that his current supplier was Adrian Clarke. All of the marijuana which McDaniel sold was imported from Houston, Texas to New Orleans. He advised that he made a living selling marijuana. He admitted that he began selling cocaine during the two weeks prior to his arrest, and that he sold it in quantities of 1/8 ounce to 1/4 ounce per sale.
McDaniel told the agents that he hired co-defendant Christopher Eaton, known as "Wally", as his runner and purchased a Stevens double-barrel 12-gauge shotgun, with a barrel length of less than 18 inches, for Eaton to use when making drug deliveries. It was found by the agents in Eaton's room. McDaniel also stated that he engaged Ledoux to drive him around to make deliveries.
Eaton was arrested on December 22, 1997, and waived his Miranda rights during interrogation. He admitted living with McDaniel since they arrived in New Orleans. He stated McDaniel had a marijuana business since they arrived in New Orleans. Eaton's job was to collect money from people who purchased marijuana and transport marijuana from Houston to New Orleans.
Ledoux was also arrested on December 22, 1998, and he likewise gave statements inculpating himself, McDaniel, and Eaton. He signed a separate Factual Basis underlying his plea, which was consistent with the Factual Basis signed by McDaniel and Eaton (Rec. Doc. No. 21).
On the date of the arrests, a search warrant was executed at 1204 Race Street, McDaniel's residence. Substances seized from the residence included 12 packages of marijuana totaling 141.1 grams, several rocks of cocaine base, or crack, weighing 342 milligrams, one tablet of methylendioxymethamphetamine weighing .3 grams, and 18.2 grams of cocaine. The Factual Basis stated that the amount of controlled substances attributed to Ledoux, a co-conspirator of both McDaniel and Eaton, in connection with this conspiracy is equivalent to 412 kilograms of marijuana.
On June 9, 1998, the Court received a handwritten letter from McDaniel asking that his case be checked into because he had reconsidered signing the plea agreement, and thought that it was a mistake. (Rec. Doc. No. 25) The Court ordered that the letter be treated as objections to the Pre-Sentence Investigation Report and filed into the record. (Rec. Doc. No. 25). It was further ordered that copies of the letter were to be served upon the Assistant United States Attorney and the Assistant Federal Public Defender who were counsel of record, and upon the United States Probation Officer who prepared the Pre-Sentence Investigation Report for response.
In the letter, McDaniel made the statement that "I did deal marajuana [sic], but not near the amount that they are charging me with." He also stated that the F.B.I. "assumed that [he] was a bigger drug dealer than [he] was" and that when the F.B.I. raided his house, they found "a small amount of marajuana [sic], and other narcotics that wasn't [sic] even [his]." He acknowledges having a gun, but states that it was unloaded and that the other gun in the house belonged to other people. He complained about being given points for being a leader, for possessing a gun, and for adding a quantity of marijuana twice. He asked that he be allowed to take his plea back because he felt pressured to sign the plea agreement by his attorney, who he said told him that if he didn't sign the plea agreement, he would anger the judge.
On June 15, 1998, an unopposed Motion to Continue Sentencing Hearing and to Enlarge the Time Period in Which to File Objections to the Pre-Sentence Investigation Report was filed by McDaniel. (Rec. Doc. No. 26) This motion was granted and the sentencing originally scheduled for July 1, 1998 was continued until September 23, 1998 in order to give the parties time in which to file objections to the Pre-Sentence Investigation Report ("PSIR"). The Court already treated McDaniel's letter as objections to the PSIR, and in that letter, Petitioner raises each of the issues raised here, except ineffective assistance of counsel in failing to file a notice of appeal.
On September 3, 1998, Petitioner filed a Motion for the Withdrawal of his Guilty Plea. (Rec. Doc. No. 32) This motion was filed by McDaniel's counsel, Assistant Federal Public Defendant Robert Barnard, on McDaniel's behalf. In the motion, McDaniel asserts that he is entitled to withdraw his guilty plea because he is not guilty of the crime for which he is being punished, i.e., one in which he is a leader or dealt in quantities of marijuana exceeding 400 kilograms, but is guilty of a lesser crime, i.e., involving smaller amounts of drugs.
In response to this motion, the Court ordered that a hearing be held on October 7, 1998 and that Petitioner obtain and furnish the Court the transcript of the re-arraignment hearing held April 23, 1998. Also, the sentencing scheduled for September 23, 1998 was postponed and re-set for October 23, 1998 in the event of denial of the motion.
On September 11, 1998, another handwritten letter was submitted to the Court from Petitioner. (Rec. No. 34) In this letter Petitioner noted that although he had made a motion to withdraw his guilty plea, he was not claiming to be innocent. (Rec. No. 34) Once again Petitioner's main contention was that there was an incorrect counting of the amount of marijuana contained in the Pre-Sentence Investigation Report.
On October 5, 1998, McDaniel filed a supplemental objection to the guideline calculation. He again raises the issue that 83 lbs. of marijuana has been counted twice and that if 83 lbs. is deducted from the overall drug count, it will be reduced to under 400 kilograms. This would place him in the next lower offense level.
On October 7, 1998, a hearing was held on Petitioner's Motion to Withdraw Guilty Plea. At this hearing the Court noted that this motion actually seemed to be in the nature of an objection to the sentencing guidelines calculation. (Transcript, Rec. Doc. No. 50, p. 4). Petitioner himself reinforced this notion when he stated that he did not want to go to trial to prove his innocence, but rather to prove what he had done and what he had not done. (Rec. No. Doc. 50, p. 7).
During this hearing, the Court advised the defendant that if he were allowed to withdraw his guilty plea, he would no longer be entitled to points for acceptance of responsibility, in the event of a conviction. The Court provided both the individual defendants and their counsel an opportunity to speak at the hearing. McDaniel addressed the Court directly, as he did on the previous occasions when he appeared in court. He remarked that he was not there "to make the Court mad or go against the system or anything like that." The Court replied, "I'm not getting mad." Barnard, McDaniel's attorney then advised McDaniel, "Judge Livaudais doesn't get mad, so don't worry about it." (Rec. Doc. No. 7). The Court then postponed the hearing on the motion to withdraw the guilty plea to allow the defendant to produce some witnesses or some evidence to allow a decision to be made on whether to allow the withdrawal of the guilty plea, and if that was denied, on the content of the pre-sentence report and the guidelines.
On October 21, 1998 Petitioner, acting through counsel, renewed his motion to set bond in the form of a Motion to Reconsider Order of Detention. A hearing was held in front of United States Magistrate Judge Louis Moore, Jr. on October 26, 1998 where Petitioner's motion was denied.
On October 30, 1998, Petitioner, acting through counsel, filed a Motion to Dismiss his Motion to Withdraw his Guilty Plea. (Rec. No. 56) In this motion Petitioner stated that he had concluded, after conferring with counsel, that it was in his best interest to maintain his guilty plea. The motion to dismiss the motion to withdraw the guilty plea was granted.
On November 12, 1998, Petitioner appeared in District Court for purposes of sentencing as to Count One of the indictment. The Court considered a number of objections by defendant to the PSIR. The Probation Officer issued an addendum and a supplemental addendum to the PSIR, considering the objections raised by the defendant. As to McDaniel's objection to the Offense Conduct, the supplemental addendum provides, in relevant part:
Counsel objects to the various quantities of marijuana attributed to Shane McDaniel. He asserts that when all of the amounts are totaled, it comes to barely over 400 kilograms. Counsel asserts that due to the speculative nature of the drug quantities, lenity dictates that an amount under 400 kilograms be used.
Revision: The 400 kilograms of marijuana used to calculate the defendant's guideline is a conservative estimate of the drugs distributed by him. Notably, Michael Ledoux [co-conspirator of McDaniel and Eaton] has agreed to be sentenced based on a quantity of 412 kilograms of marijuana. There is no doubt that McDaniel was more heavily involved in the distribution of marijuana than Michael Ledoux. Further, McDaniel acknowledged the accuracy of the factual basis at the time of his plea which totaled quantities of marijuana to in excess of 400 kilograms. Notably, the quantities of cocaine and methamaphetamine distributed by McDaniel were not quantified in determining the defendant's base offense level. Michael Ledoux estimated McDaniel's cocaine sales at least a kilogram but probably more. Should the cocaine and methamphetamine be quantified, counsel's argument regarding the rule of lenity would be undermined. Accordingly, in light of the fact that McDaniel agreed to a quantity of marijuana in excess of 400 kilograms in the factual basis, and the fact that the figure represents a conservative estimate of the quantity of drugs involved, the 400 kilogram quantity is appropriately used.
Supplemental Addendum, p. 22 [emphasis added].
McDaniel also objected to the two-level enhancement for possession of a firearm, In the Supplemental Addendum, the Probation Officer reports that:
Application Note 3 to [United States Sentencing Guidelines] § 2D1.1 provides that the [two-level enhancement] adjustment should be applied if the weapon was present, unless it is clearly improbably that the weapon was connected with the offense. Additionally, the Application Note provides that the enhancement for weapon possession reflects the increased danger of violence when drug traffickers possess weapons. There is a large body of case law which holds that when a weapon was possessed by a co-defendant, the enhancement may be applied if the possession was reasonably foreseeable to the defendant in connection with the jointly undertaken criminal activity. . . . United States v. Aguilera-Zapata, 901 F.2d 1209, 1212-13 (5th Cir. 1990).
In the case at bar, it is inconceivable that McDaniel was not aware that weapons were possessed by his co-defendants in furtherance of drug trafficking activity. . . . Notably, McDaniel purchased the sawed-off shotgun for Christopher Eaton. Additionally, Eaton possessed a pistol which was secured in his waistband when he began fleeing from the agents at the time the search warrant was executed. Most telling, Eaton gave a post-arrest statement wherein he reported that his role in McDaniel's operation was to collect money from the people who bought the marijuana or, in other words, an enforcer for the organization. In light of the foregoing facts, the two-level enhancement for possession of a firearm is properly assessed.
Supplemental Addendum, p. 23.
McDaniel also objected to the enhancement he received for his role as a leader in the conspiracy to distribute controlled substances was made. He was initially given a four level enhancement for heading up an organization with five or more participants, but the Court ultimately reduced this to a two-level enhancement for leading a two person organization. The Supplemental Addendum to the PSIR notes that McDaniel exercised a leadership role over Elaine Donaldson, a courier, Christopher Eaton, a runner, money collector, and enforcer, and Michael Ledoux, a driver who made drug deliveries. Both Eaton and Ledoux pled guilty to this conspiracy count, along with McDaniel. Application Note 2 to U.S.S.G. § 3B1.1 provides that to qualify for a leadership enhancement, the defendant must have been the organizer, leader, manager, or supervisor of one or more other participants.
At the sentencing hearing held November 12, 1998, counsel for McDaniel moved to withdraw all objections to the guideline calculations, except for an objection to a two level enhancement for leadership. This, along with his three level reduction for acceptance of responsibility and a two level, instead of a four level, enhancement for a leadership role, resulted in a guideline range of 87 months to 108 months. In considering this objection, the Court heard evidence as to Petitioner's role in this crime. This evidence consisted of the stipulation of the prosecution and defendant McDaniel as to the testimony of Elaine McDonald. The parties stipulated that if she were to be called to testify, would have testified that "on or about April 23rd of 1997, at Mr. McDaniel's direction she traveled to Houston, Texas, to pick up 83 pounds of marijuana." (Transcript, Rec. Doc. No. 83, p. 3) The stipulated testimony of Ms. McDonald would have also established that "the marijuana was to be brought back to New Orleans to be given to McDaniel, and she was to be paid for this trip by Mr. McDaniel." (Transcript, Rec. Doc. No. 83, p. 4). The Government also proffered the proposed testimony of co-defendant Michael Ledoux, who would have testified that "he was part of a marijuana distribution organization headed by Mr. McDaniel, and as directed by Mr. McDaniel, [Ledoux] found marijuana customers for McDaniel, collected money for him at Mr. McDaniel's direction, and drove Mr. McDaniel around to do errands in connection with the operation of the marijuana organization." (Transcript, Rec. Doc. No. 83, p. 4). Neither the defendant, who was present in the courtroom, nor his counsel, objected to the proffer, and indeed counsel accepted it upon questioning by the Court.
Ms. McDonald was in the courtroom and available to testify at the hearing.
The Court afforded McDaniel an opportunity to speak, which he did. Both he and his counsel advised the court specifically that they did not object to the amount of drugs in the guidelines calculation. (Transcript, Rec. Doc. No. 83, p. 6).
After consideration of the objections, the Court overruled Petitioner's objection, adopted the probation officer's recommended findings of fact as to which there was no objection, and as to controverted findings of fact, resolved the disputes as stated in the supplemental addendum to the PSIR. The Court accepted the reduction of the leadership role from a four level enhancement to a two level enhancement. This operated to reduce McDaniel's guideline range from 108 to 135 months to 87 to 108 months. The Court sentenced McDaniel to 87 months in the custody of the Bureau of Prisons, the lowest sentence in that range, along with a 5 year supervised release term, a fine of $5,000.00 and a $100.00 special assessment.
The Petitioner has remained in custody since his arrest, and is now serving his sentence at the Federal Correctional Complex in Beaumont, Texas. He did not file a notice of appeal.
DISCUSSION
Petitioner brings this motion for sentence reduction pursuant to 28 U.S.C. § 2255, which provides that "[a] prisoner in custody under sentence of a court . . . claiming the right to be released upon the ground that the 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, may move the court which imposed the sentence to vacate, set aside or correct the sentence." This motion is timely as it was filed within one year of the date on which his judgment of conviction became final. This is McDaniel's first request for habeas relief under 28 U.S.C. § 2255.
McDaniel argues that errors were committed in the application of the United States Sentencing Guidelines because he alleges that the Base Offense Level was improperly computed because the weight of one drug transaction in the conspiracy was counted twice, his offense level was erroneously enhanced by two points for having a leadership role, and another erroneously enhancement occurred when two points were added for possession of a dangerous weapon. In addition, Petitioner argues that his counsel was constitutionally ineffective.
As to the claims of error in the application of the Sentencing Guidelines, McDaniel is procedurally barred from raising these claims because he has failed to make a direct appeal. As recognized by the Fifth Circuit in United States v. Vaughn, 955 F.2d 367 (5th Cir. 1992):
Relief under 28 U.S.C.A. § 2255 is reserved for transgression of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice. U.S. v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding. Id. Vaughn was sentenced within the Guideline range and did not appeal the sentence. A district court's technical application of the Guidelines does not give rise to a constitutional issue. U.S. v. Lopez, 923 F.2d 47, 50 (5th Cir.), cert. denied, 111 S.Ct. 2032 (1991).
Vaughn's claim is not cognizable under the limited scope of relief available under 28 U.S.C.A. § 2255 because it is not of constitutional dimension, could have been raised on direct appeal, and there has been no showing as to why it was not.955 F.2d at 368. See also, United States v. Payne, 99 F.3d 1273, 1282 (5th Cir. 1996). This Court likewise finds that petitioner's alleged sentencing errors to not be constitutional in dimension. McDaniel did not appeal, as he waived his right to appeal except in very limited circumstances, none of which were applicable here. The Supreme Court and the Fifth Circuit have emphasized repeatedly that "a collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991), cert. denied, 502 U.S. 1076 (1992) (citing United States v. Frady, 456 U.S. 152, 165 (1982)). After conviction and exhaustion or waiver of any right to appeal, the Court is entitled to presume that "the defendant stands fairly and finally convicted." Shaid, 937 F.2d at 231-231; Frady, 456 U.S. at 164. A defendant may then challenge his conviction or sentence only on issues of constitutional or jurisdictional magnitude. Shaid, 937 F.2d at 232; Hill v. United States, 368 U.S. 424, 428 (1962). Even then, a defendant "may not raise an issue for the first time on collateral review without showing both `cause' for his procedural default, and `actual prejudice' resulting from the error." Shaid, 937 F.2d at 232 (citing Frady, 456 U.S. at 166). "A defendant must meet this cause and actual prejudice test even when he challenges a fundamental constitutional error." Id. at 232 (citing Murray v. Carrier, 477 U.S. 478, 493 (1986)). Where the error alleged by the defendant is not of constitutional or jurisdictional magnitude, the defendant must show that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice. Id. at 232 n. 7 (citing United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981)). Although a departure from the cause and actual prejudice test might be warranted in cases in which a constitutional violation has probably resulted in the conviction of one who is actually innocent, this is not such a case. Id. at 232; Murray, 477 U.S. at 496.
Petitioner agreed in his plea agreement to waive the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742. Additionally, the Petitioner agreed not to contest his sentence in any post conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255. If Petitioner's appeal waiver was constitutional, he will be barred from raising these issues here.
A defendant may waive his right to appeal as part of a plea agreement with the Government, however, this waiver must be informed and voluntary. United States v. Robinson, 187 F.3d 516, 517 (5th Cir. 1999). In order for a waiver of one's right to appeal to be found Constitutional, there must be an explanation of the waiver of appeal provision and a discussion of the plea agreement. Id. A discussion of the waiver of the right to appeal was held with Mr. McDaniel in open court. Specifically, Mr. McDaniel was asked if he understood that by entering a plea agreement he would be giving up his right to a trial or appeal of any kind, to which he answered "yes." McDaniel, who appeared before the Court on a number of occasions throughout these proceedings, was frequently outspoken and displayed no hesitancy in confronting the Court directly with any questions or concerns he had about the proceedings. The very first time he appeared before the Court, he refused to enter a guilty plea, although he was scheduled to do so at that time, because he was unsure about doing so. The Court finds that Petitioner McDaniel would certainly not have entered a guilty plea or waived his right to appeal unless he believed it to be in his best interest. Any protestations that he felt coerced into doing so by the Court or by his counsel, for fear of angering the Court, simply have no evidentiary support, and such arguments are indeed belied by the record. The Court finds that Petitioner's waiver of his right to appeal was knowing and voluntary.
The Court must also note, however, that even if McDaniel had appealed, he would likely not have prevailed on his claims of sentencing errors in this record. As can be surmised from the exhaustive recitation of the facts in this somewhat torturous path to a guilty plea and sentencing, McDaniel always acknowledged his guilt of conspiring to possess with intent to distribute the specified controlled substances. While he may argue with the amounts and his role as a leader, the record establishes that the calculation of the drug quantities involved and his role as a two-level leader were well supported by McDaniel's own statements, the statements and proffered testimony of witnesses and co-conspirators, and the physical evidence. The enhancement for possession of a gun was appropriate based upon his own statement that he purchased a sawed-off shotgun for co-defendant Eaton for use in his drug distribution business. The conclusions reached by the United States Probation Officer in the PSIR and the Supplemental Addendum, as adopted by the Court, were amply supported by the record. The Court finds that any appeal of these alleged errors by McDaniel would not have been fruitful.
Finally, Petitioner raises an ineffective assistance of counsel argument. In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel: a convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. If a court finds that petitioner has made an insufficient showing as to either one of the two prongs of inquiry, i.e., deficient performance or actual prejudice, it may dispose of the claim without addressing the other prong. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069.
Under 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, 113 S.Ct. 838, 844, 122 L.Ed.2d 180 (1993) (citing Strickland, 466 U.S. at 690, 104 S.Ct. at 2066). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." U.S. v. Walker, 68 F.3d 931, 934 (5th Cir.), ( quoting U.S. v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995),cert. denied, 516 U.S. 1165, 116 S.Ct. 1056, 134 L.Ed.2d 201 (1996). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. U.S. v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994) citing Strickland, 466 U.S. at 686, 104 S.Ct. at 2063. Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. Strickland, 466 U.S. at 688-89, 104 S.Ct. at 2065. Petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance."Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir.) (citations omitted), cert. denied, 479 U.S. 1021, 107 S.Ct. 678, 93 L.Ed.2d 728 (1986); Hayes v. Maggio, 699 F.2d 198, 201-02 (5th Cir. 1983).
Petitioner's main contention here is that his counselor failed to perfect his Constitutional right to appeal his sentence. However, in actuality, it was Petitioner himself who agreed to waive his right to appeal his sentence except under limited circumstances. Therefore, this would not constitute error on behalf of Petitioner's counsel. In addition, Petitioner acknowledges that his counsel had filed objections to the PSIR challenging the double-counting of the marijuana, the enhancement for possession of a gun and for a leadership role. The record establishes that McDaniel was ably assisted by counsel throughout these proceedings.
To prove prejudice under the Strickland standard, petitioner "must show that there is 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, 104 S.Ct. at 2068. The Strickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
The Fifth Circuit has distinguished shoddy representation of counsel from no defense at all. Childress v. Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997). A critical question in assessing a Sixth Amendment right to counsel claim is whether the accused asserts that he received incompetent counsel or no counsel at all. Id. at 1230. The cases establish that a constructive denial of counsel occurs when a criminal defendant must navigate a critical stage of the proceedings against him without the aid of "an attorney dedicated to the protection of his client's rights under our adversarial system of justice." Id. at 1229 (quotingUnited States v. Swanson, 943 F.2d 1070, 1075 (9th Cir. 1991)). A constructive denial of counsel obviously falls short of the minimum requirements of the Sixth Amendment. Childress, at 1231 n. 14.
As previously noted, the Court finds that the grounds McDaniel asserts here as unconstitutional errors on the part of his counsel, including his failure to file a notice of appeal, are without merit. McDaniel waived his right to appeal his sentence, except in very limited circumstances, none of which were present. The Government would have certainly raised defendant's waiver on appeal, if indeed he had attempted to pursue an appeal. The record supports the application of the Sentencing Guidelines and frankly shows that McDaniel's counsel was able to secure for him a reduced leadership role enhancement from four points to two points, and to re-secure for him a three level reduction for acceptance of responsibility, even after McDaniel attempted to withdraw his guilty plea. The guideline ranges were reduced significantly as a result of his efforts, and McDaniel received a sentence at the very lowest end of the reduced guideline range. Therefore, the Court finds that the Petitioner has failed to meet either the cause or prejudice prong of the Strickland standard, and for these reasons, his motion under § 2255 for habeas relief must fail.
Accordingly, for the above and foregoing reasons,
IT IS SO ORDERED that the motion of defendant Shane McDaniel, to correct sentence under 28 U.S.C. § 2255 be and is hereby DENIED. Judgment shall be entered in accordance herewith.
New Orleans, Louisiana this 28 day of February, 2000.