Opinion
NO. 96-232
June 28, 2001
There are three motions by the petitioner before this Court, namely two Motions for Discovery pursuant to his 28 U.S.C. § 2255 Motion to Vacate and a Motion to Vacate conviction and sentence pursuant to 28 U.S.C. § 2255. The Court, having studied the legal memoranda and exhibits submitted by the parties, the record, and the applicable law, is fully advised on the premises and ready to rule.
ORDER AND REASONS
1. BACKGROUND
On January 10, 1996, petitioner Michael Short, along with twelve others, were charged with violations of federal drug trafficking laws, access device fraud, arid money laundering. The charges against Short include, but are not limited to: Count 1, conspiring to distribute heroin and cocaine; Count 2, engaging in a continuing criminal enterprise as the organizer and manager: Count 3, intentionally killing Derrick Hubbard in furtherance of the continuing criminal enterprise; Count 4, causing the killing of Derrick Hubbard through the use of a firearm; Count 5, carrying a firearm in the commission of drug trafficking; Counts 6 and 8, using a telephone in furtherance of the drug conspiracy; Count 7, using the United States Postal Service in furtherance of the drug conspiracy; Count 24, using a modified cellular phone with the intent to defraud; and Count 27, conspiring to commit money laundering. The trial ended June 3, 1997, and the petitioner was convicted by a jury on all counts. Petitioner filed two post-trial motions, Motion for New Trial and Motion for Judgement of Acquittal, both of which were denied. The Fifth Circuit heard oral arguments pertaining to this case in May, 1999. The Court rendered a decision affirming all of the convictions against the petitioner, except for Count 1, which was vacated. The petitioner has now filed a Motion pursuant to 28 U.S.C. § 2255 citing seventeen allegations of error, accompanied by two Motions for Discovery.
II. LAW AND ANALYSIS
A. Evidentiary Hearing
Based upon a review of the entire record, it is the opinion of this Court the motion filed by the Petitioner can be addressed without an evidentiary hearing. An evidentiary hearing is not required on a motion to set aside a judgment of conviction and sentence if it appears conclusively from the record that the petitioner is not entitled to relief. See, Randle v. Scott. 43 F.3d 221, 226 (5th Cir. 1995); United States v. Plewniak, 947 F.2d 1284, 1290 (5th Cir. 1991). The written submissions of the parties and the district court's existing record provide sufficient information to dispose of the instant motion without a hearing. Franklin v. United States, 589 F.2d 192, 193 (5th Cir. 1979).
B. Motions for Discovery
Petitioner, Michael Short, filed two Discovery Motions requesting the production of documents from the U.S. Attorney. In order for a party to be allowed discovery on a Section 2255 motion, the District Court must find good cause. 28 U.S.C. § 2254. A petition for habeas corpus relief must establish a prima facia claim for relief and in order to justify discovery under Rule 6, the factual allegations must be specific, as opposed to merely speculative or conclusory. Simply put, Rule 6 does not allow fishing expeditions. See West v. Johnson, 92 F.3d 1385, 1399-1400 (5th Cir. 1996) (citing Ward v. Whitley, 21 F.3d 1355, 1367 (5th Cir. 1994)).
In his first motion, the Petitioner requests documents relating to the illegally cloned cell phones. Under Rule 6 of Section 2254, discovery will only be permitted if the District Court finds good cause. In the current case, the Petitioner was allowed ample opportunity during trial for cross examination; the issue of the cellular phone numbers was raised extensively to the Appellate Court; and the Court disposed of the issue of the suppression of the cellular phone number previously in United States v. Short, 181 F.3d 620, 623 (5th Cir. 1999). The Motion will therefore, be denied.
Petitioner's second Motion for Discovery requests documents related to F.B.I. Agent Daron Council's investigation, arrest, and prosecution. Petitioner believes the wire taps placed on his phones were the work of government misconduct on the behalf of Agent Council. Petitioner claims that Agent Council was working with a rival drug dealer and only tapped the Petitioner because he would not pay or work with Agent Council.
Petitioner knew all of this alleged information prior to, during, and after the trial, yet he raises the issue for the first time on collateral review. Petitioner cannot raise an issue, constitutional or jurisdictional, for the first time on collateral review without first showing both cause for his procedural default, and actual prejudice resulting from the error." United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994); United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995). Petitioner can not show cause for his failure to raise the issue. He was in possession of the alleged information throughout his whole trial process, yet he said nothing. Therefore, he is barred from pursuit of the allegations surrounding Agent Council and thus, any discovery related thereto.
Furthermore, unsupported and unsubstantiated allegations are not sufficient grounds upon which a prima facia case can be established. Petitioner, therefore, would not be entitled to discovery because he did not provide any information or evidence supporting his claims against Agent Council. The second Motion for Discovery is denied.
Short cites seventeen grounds as the basis for his Section 2255 Motion. All but four of these grounds allege ineffective assistance of counsel. These thirteen grounds must be addressed in accordance with the standard set out by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). Each of the other four grounds will be addressed according to seperate applicable standards.
In Strickland v. Washington, the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance ofcounsel: a convicted defendant seeking relief must demonstrate that counsel's performance was deficient and that the deficient performance prejudiced the defense. 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, 20 1-02 (5th Cir. 1983).
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. TheStrickland 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.
Ground I: Petitioner claims that his counsel rendered him ineffective assistance by failing to raise a Fourth Amendment claim for alleged illegal detention. It is the Petitioner's belief that he was illegally detained; and that during this detention, his cell phone number was illegally obtained. In accordance with the first prong of theStrickland standard, the Petitioner must prove that his counsel's performance was deficient. Petitioner can not prove that counsel was deficient because this issue was fully addressed by the Fifth Circuit; who previously rejected the Petitioner's objection to the seizure of the cell phone found in the vehicle. United States v. Short, 181 F.3d at 623. In the present Motion, the Petitioner is trying to reassert an issue already decided, the legality of the information obtained from the phone during his detention. Since the issue was already decided by this Court, the counsel was in no way deficient, and therefore the Motion to Vacate must be denied for failure to satisfy the first prong of the Strickland standard.
Ground II: Petitioner contends that there is an intervening changeRichardson v. United States, 526 U.S. 813, (1999), which could affect his sentence. Petitioner argues that Richardson should be applied retroactively to his case. Petitioner's motion, however, is barred by Section 2255(3), which limits the filing of these motions to one year from the date on which the right asserted was initially recognized by the Supreme Court. United States v. Lopez, 248 F.3d 427 (5th Cir. 2001). The Supreme Court decided Richardson, and thus recognized the new right on June 1, 1999. Petitioner filed his Section 2255 Motion on December 28, 2000, six months after the one year time period had concluded. Petitioner is therefore barred from filing this motion. Ground II is denied.
Ground III: Petitioner argues that his counsel was ineffective for failing to raise the case of Richardson v. United States in his defense. The panel which dealt with the Petitioner's direct appeal inquired extensively as to the impact of Richardson. The panel was aware of the development in Richardson and how it might be applied to the Petitioner's case. They decided adversely to the Petitioner, citing United States v. Linri, 889 F.2d 1369, 1374 (5th Cir. 1989). In order for the Petitioner to establish grounds for ineffective assistance of counsel, he must first prove deficient performance by counsel. Since this issue was dealt with directly on appeal and the Petitioner argues no new grounds of error, counsel fulfilled his duty to the Petitioner. Ground III is denied.
Grounds IV XI: In these two grounds, the Petitioner argues that his Counsel was ineffective for failing to object to the jury instructions given by the Court with regards to his continuing criminal enterprise ("CCE") and money laundering charges. Petitioner claims that the Court in its jury charge impermissibly amended the indictment. The CCE indictment charged Petitioner with "knowingly and intentionally" engaging in CCE and the money laundering indictment charged him with "knowingly and willingly" conducting and/or attempting to conduct financial transactions which involved the proceeds specified illegal activities. Whereas the jury charge given by the Court for each of these two offenses only included the "knowingly" part of the indictment. Petitioner claims this altered the indictment and changed the mens rea necessary for the jury to find in order to convict him.
In order to determine if the Petitioner had ineffective counsel, we must again look to the Strickland test. The first prong of which is deficient performance by counsel. In order for the petitioner to succeed on his objections to either one of the jury charges, he must prove that the divergence reflects more than a harmless error (i.e., the variance is fatal). United States v. Salvatore, 110 F.3d 1131, 1145 (5th Cir. 1997). Because, unless the defendant can demonstrate substantial prejudice, courts will rarely reverse a conviction on the basis of variance. United States v. Dean, 59 F.3d 1479, 1490 (5th Cir. 1995). The Fifth Amendment's grand jury guarantee is not violated as long as the proof upon which the convictions are based corresponds to an offense that was clearly set out in the indictment. United States v. Miller, 471 U.S. 130, 135 (1985). In the current case, Petitioner acknowledges that all statutorily required elements of both counts 4 and 11 were properly presented to the jury and stated in the indictment. Petitioner was tried on an indictment that clearly set out the offenses for which he was ultimately convicted.
Petitioner relies heavily on Stirone v. United States, a case clearly different from the one at hand. In Stirone, the offense proved at trial was not fully contained in the indictment, for trial evidence had amended the indictment by broadening the possible basis for conviction from that which appeared in the indictment. Stirone v. United States, 361 U.S. 212 (1960). Stirone is thus wholly unlike the case at hand, because the indictment in this case, adequately notified the Petitioner of all essential elements of all charged offenses. The indictment contained all necessary information for the Petitioner to protect all of his interests.
Thus, since the Petitioner could not have, and can not win on his objections to the jury charge, it is obvious that he did indeed receive effective assistance from his counsel. Therefore, both Grounds IV and XI are denied.
Ground V: The Petitioner argues a jurisdictionally defective indictment and/or ineffective assistance of counsel for failure to object to the allegedly open-ended, defective indictment. The petitioner claims that the time frame of the indictment was too broad for him to establish an effective defense. This issue is identical to the issue the Petitioner tried to raise on appeal. The Fifth Circuit denied the motion explaining that Short raised the issue for the first time on appeal and did not assert specific prejudice or a miscarriage of justice resulting from the alleged defect in the indictment. United States v. Short, 181 F.3d at 627. An issue decided on direct appeal need not be reconsidered in a motion to vacate, set aside, or correct a sentence. Vemell v. United States, 559 F.2d 963, 964 (5th Cir. 1977). Therefore, Ground V will be denied.
Ground VI: Petitioner again attacks the validity of the indictment, claiming it was defective because it failed to name the five supervisees in the continuing criminal enterprise. On appeal, the Petitioner argued a very similar issue, claiming he was unable to properly defend himself at trial without the identities of the individuals. The Fifth Circuit concluded this argument was without merit. United States v. Short, 181 F.3d at 627. Petitioner argues that the five supervisees were an element of the crime. A position that was implicitly rejected by the Fifth Circuit by holding that the jury did not have to make a finding as to the identities of the five supervisees. Id. at 623-624. Once again, an issue decided on direct appeal need not be reconsidered in a motion to vacate, set aside, or correct a sentence.Vemell v. United States, 559 F.2d at 964. Petitioner cannot show that he was factually misled or that he suffered other specified prejudice by the fact that the individuals were not named. Therefore, Ground VI will also be denied.
Ground VII: Petitioner contends that if count two is vacated, then counts three and four must also be vacated, because if he is not found guilty of continuing criminal enterprise, how can he be found guilty of performing acts in furtherance of continuing criminal enterprise. Count two was not vacated, therefore the Petitioner has no grounds upon which to object to counts three and four. Ground VII is denied.
Ground VIII: Petitioner argues that counts three and four should be vacated because his attorney did not object to the testimony ofa witness, Gregory Cook, as inflammatory and prejudicial. In order for counsel to be found ineffective under Strickland the Petitioner must first prove that counsel's performance was deficient. The testimony referred to by the Petitioner does not mention his name, nor does it suggest any type of relationship between the deceased and the Petitioner, nor did the government argue any type of relationship between the deaths and the Petitioner. There was no reason for Petitioner's counsel to object to that line of questioning because it was in no way prejudicial to the Petitioner. Counsel was not deficient and therefore Ground VUI must be denied for failure to pass Strickland.
Grounds IX XIII: Petitioner argues in Ground IX that his counsel was ineffective for failing to object to counts 3 and 4 of the indictment as being multiplicious and in Ground xm for failing to object to counts 1, 6, 7, and 8 as being multiplicious. In order to determine if the counts listed in each of Grounds IX and XIII are a single or multiple crimes, the Court must look to the pertiment rule.
The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is to determine whether each provision requires proof of a fact which the other does not. United States v. Galvan, 949 F.2d 777, 78 1-782 (5th Cir. 1991) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).United States v. Henderson, 19 F.3d 917, 925 (5th Cir. 1994).
In order for the jury to convict the Petitioner of count 3, this Court charged that they must find: (1) that he was engaged in and working in furtherance of a continuing criminal enterprise, and (2) while engaged in the continuing criminal enterprise relating to the distribution of heroin, he caused the intentional killing of Derrick Hubbard. Whereas in count 4, this Court charged that the jury, in order to convict the Petitioner, must find that: (1) the petitioner was carrying the gun which was used to kill Hubbard in relation to a conspiracy to distribute heroin and in furtherance of a continuing criminal enterprise, (2) that he caused the death of Derrick Hubbard through the use of the firearm, and (3) the murder was premeditated. Count 4 requires the proof of various additional elements not included in count 3, such as premeditation. Therefore, the elements of proof are different under the Blockburger test resulting in two separate crimes. Ground IX will therefore be denied.
With regards to Ground XIII, Petitioner in his Section 2255 motion originally alleged that counts 6, 7, and 8 were multiplictious with count 1, however in his reply to the government's response he changes his argument to claim that counts 6, 7, and 8 are multiplictious with each other. Out of an abundance of caution, the Court will address both of these scenarios. Count 1 charged the petitioner with conspiracy and counts 6, 7, and 8 charged him with the crimes that facilitated the conspiracy. "[U]nder the Blockburger test, the offenses of conspiracy to commit a crime and the crime itself are separate offenses. Iannelli v. United States, 420 U.S. 770 (1975)." United States v. Kalish, 734 F.2d 194, 198 (5th Cir. 1984). The current case is similar to the Kalish case in that neither case involves two conspiracy charges; they simply concern a conspiracy prosecution followed by a charge for the underlying substantive offenses. Id. at 198. The first scenario, therefore, must be dismissed.
In the second possible scenario to Ground XIII, the petitioner contends that counts 6, 7, and 8 are multiplictious with each other. Count 6 charged that on or about July 14, 1996, in the Eastern District of Louisiana the Petitioner used a telephone in furtherance of a conspiracy to distribute heroin, a violation of Title 21, United States Code, Sections 841, 843, and 846. Count 7 charged that on or about July 30, 1996, in the Eastern District of Louisiana the Petitioner used the United States Postal Service in furtherance of a conspiracy to distribute heroin, a violation of Title 21, United States Code, Sections 841, 843, and 846. Count 8 charged that on or about August 1, 1996, in the Eastern District of Louisiana the Petitioner used a telephone in furtherance of a conspiracy to distribute heroin, a violation of Title 21, United States Code, Sections 841, 843, and 846. These are three distinctly separate acts that occurred on three different occasions. Sentences are multiplictious only if the same act results in multiple punishments for multiple counts under the same criminal provision. United States v. Henderson 19 F.3d at 924. The Petitioner did receive multiple punishments for crimes that fell under the same criminal provisions, but this occurred as a result of multiple acts by the Petitioner. "The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately."Blockburger v. United States, 248 U.S. 299, 304 (1932). It is clearly stated in Title 21, United States Code, Sections 841, 843, and 846 that each individual act is prohibited. The second scenario under Ground XIII is also merit less, therefore Ground XIII is denied.
Ground X: Petitioner alleges government misconduct on the part of F.B.I. Agent Daron Council. Petitioner claims that Agent Council was involved in illegal drug activity with a rival drug gang prior to the Petitioner's arrest and that Agent Council tried to blackmail the Petitioner into cooperation. Petitioner believes that for these reasons the Title III wire tap was illegal and should be suppressed.
Petitioner was the only one aware of these alleged offenses by Agent Council, yet he did not raise the issue at trial or on appeal; he instead waited to raise the issue in this Motion. Petitioner cannot "raise an issue [constitutional or jurisdictional in nature] for the first time on collateral review without showing both "cause' for his procedural default and "actual prejudice' resulting from the error." United States v. Segler, 37 F.3d at 1133 (citing United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991)). Petitioner can show no cause for failing to raise this issue. He alone possessed the knowledge; he possessed it prior to trial and appeal; and he has presented no evidence to support his accusations. Petitioner is therefore barred from raising this issue in this Motion. Ground X is denied.
Ground XII: Petitioner argues that he is not a career offender as defined in U.S.S.G. § 4B 1.1 and that his counsel was ineffective for letting him be sentenced as such. Sentencing Guideline Section 4B 1.1 reads as follows:
A defendant is a career offender if(1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction, (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense, and (3) the defendant has at least two prior felony convictions of either a crime of violence or controlled substance offense. If the offense level for a career criminal from the table below is greater than the offense level otherwise applicable, the offense level from the table below shall apply. A career offender's criminal history category in every case shall be Category VI.
U.S.S.G. § 4B1.1
The Petitioner was approximately twenty-eight years old at the time he committed the present offenses, which are considered to be crimes of violence and/or controlled substance offenses. Additionally, the Petitioner's presentense report does recognize three separate state court convictions: one misdemeanor and two felonies that were convictions for violent crimes and/or controlled substance offenses. Petitioner tries to assert that his two felony convictions were for the same crime, but it is evident through the different arrest dates and case numbers that they consist of two separate offenses. The fact that the two cases were heard on the same day is irrelevant; just because two cases are disposed of simultaneously does not make them related. Petitioner meets all requirements set out in Section 4B 1.1 and therefore was correctly sentenced as a career offender. Ground XII is denied.
Ground XIV: Petitioner objects to the order of a fine and restitution without a specific finding by this Court as to Petitioner's ability to pay, alleging abuse of discretion by this Court or counsel's ineffectiveness, and prays for the fine and/or restitution to be vacated. The purpose of a Section 2255 motion is to provide prisoners who claim a right to be released from custody an avenue to challenge their sentences. United States v. Segler, 37 F.3d at 1136. Accord United States v. Gaudet, 81 F.3d 585, 592 (5th Cir. 1996). Monetary fines do not put sufficient restraint on the liberty of individuals to meet the requirements of Section 2255. Id. Section 2255 motions do not allow the inclusion of fine and/or restitution issues. Therefore, Ground XIV will be denied.
Ground XV: Petitioner contends that all of trial counselor's errors in aggregate rendered the Petitioner's jury trial fundamentally unfair. There is, however, no need to explore the outer parameters of the prejudicial circumstances of this case, which do not individually constitute error. United States v. Wynne, 993 F.2d 760, 768 (10th Cir. 1993). "Cumulative error analysis evaluates the effect only of errors, not the cumulative effect of nonerrors." Id. Every Ground on which Petitioner claimed ineffective assistance by counsel has been denied, therefore it is clear in this case that the defendant was not subjected to a fundamentally unfair trial. Ground XV is den.ied.
Ground XVI: Petitioner contends that because his appellate counsel failed to raise all issues cited in this Section 2255 motion at the appellate level, he was rendered ineffective assistance of counsel. According to the second prong of the Strickland test, the Petitioner must show prejudice in order to triumph in a Section 2255 Motion. In other words, in order to prevail on an ineffective assistance of counsel claim Petitioner must demonstrate that a reasonable probability existed that the result on an appeal ofthese "errors" would have been successful.Strickland v. Washington, 466 U.S. at 668. Each and every Ground has been denied, demonstrating that all of these claims were meritless. If none of these Grounds are successful now, then obviously they wouldn't have been successful on appeal, therefore Ground XVI will also be denied.
Ground XVII: Petitioner contends that he was denied his Sixth Amendment Right to effective assistance of counsel on Grounds I, III, IV, V, VIII, IX, and XI-XVI. Each one of these Grounds has failed to pass the standards set out in Strickland. If each Ground has fallen below the objective standard of reasonableness individually, it would make no sense for them to pass collectively. Petitioner has failed to show that counsel's performance was so deficient that he was not functioning as Petitioner's counsel. Id. Additionally, Petitioner has failed to prove that he was deprived of a fair trial. Id. Ground XVII is therefore also denied.
Accordingly, IT IS ORDERED that both of Petitioner's Motions for 2255 Discovery be DENIED. IT IS FURTHER ORDERED that all seventeen Grounds upon which the Petitioner has based his Sectipn 2255 Motion are denied, thus the Section 2255 Motion is also DENIED. New Orleans, Louisiana, this day of June, 2001.