Opinion
Case No. 00-40060-03, Case No. 03-3352-RDR
February 13, 2004
MEMORANDUM AND ORDER
This matter is presently before the court upon the defendant's pro se motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. Having carefully reviewed the arguments contained in the defendant's motion, the court is now prepared to rule.
The defendant has filed a motion for discovery. He seeks a variety of materials. After a careful review, the court shall deny this motion. The court is not persuaded that any of these materials are necessary for the instant motion.
On March 27, 2001, the defendant entered a conditional guilty plea to conspiracy to manufacture a mixture containing methamphetamine in violation of 21 U.S.C. § 846. He reserved the right to appeal this court's order denying his motion to suppress. On August 3, 2001, the defendant was sentenced to a term of imprisonment of 96 months to be followed by a three-year term of supervised release. On appeal, the court's order denying the motion to suppress was affirmed. United States v. Tucker, 313 F.3d 1259 (10th Cir. 2002). He filed the instant motion on July 16, 2003.
The charges in this case arose out of a search warrant that was executed on May 11, 2000 at a trailer rented by the defendant in Lawrence, Kansas. Law enforcement officers received information that a possible fugitive, Melissa Paxton, might be at the defendant's trailer. The individual who provided the information also suggested that there might be a methamphetamine lab at that residence. The officers began surveillance of the trailer. During the late evening hours of May 10, 2000, they saw the defendant and Paxton leave the trailer. They followed them to a local Wal-Mart where they observed the two of them purchase several items used in the production of methamphetamine. Officers sought and obtained a search warrant to search the trailer for methamphetamine and the instrumentalities of its manufacture. At 5:10 a.m., officers entered the trailer and executed the search warrant. They found a significant methamphetamine lab in the trailer. Subsequently, in a storage unit rented by Laura Leigh Cornelius, officers found other items associated with the manufacture of methamphetamine. Cornelius later told law enforcement that the methamphetamine manufacturing materials found in the storage unit belonged to the defendant.
The defendant, along with Cornelius and Paxton, was indicted on three counts: conspiracy to manufacture in excess of 500 grams of a mixture or substance containing methamphetamine in violation of 21 U.S.C. § 846; manufacturing in excess of 500 grams of methamphetamine in violation of 21 U.S.C. § 841(a)(1); and possession of a listed chemical, ephedrine, with intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). Cornelius and Paxton entered into plea agreements with the government. As part of the plea agreements, both defendants agreed to testify against the defendant. The trial for the defendant was scheduled for March 27, 2001. On that date, after the court considered some pretrial motions and just prior to jury selection, the court was informed that the defendant had entered into a plea agreement with the government. Thereupon, the court conducted a Rule 11 hearing and the defendant did enter a guilty plea to an information charging conspiracy to manufacture a mixture or substance containing a detectable amount of methamphetamine in violation of 21 U.S.C. § 846.
In the instant motion, the defendant raises the following grounds for relief: (1) he was denied a speedy trial; (2) the court erred in calculating the amount of methamphetamine attributable to him; (3) his plea was involuntary; and (4) he was denied effective assistance of counsel.
In order to obtain relief under § 2255 on the basis of constitutional error, the petitioner must establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). In order to obtain relief on the basis of nonconstitutional error, the petitioner must show a fundamental defect in the proceedings resulting in a complete miscarriage of justice or an error so egregious that it amounted to a violation of due process.Reed v. Farley, 512 U.S. 339, 353-354 (1994).
An evidentiary hearing must be held 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). To be entitled to an evidentiary hearing, the defendant must allege facts which, if proven, would entitle him 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.
A proceeding under § 2255 may not be used to challenge the legality of matters which should have been raised on direct appeal. United States v. Frady, 456 U.S. 152, 165 (1982); U.S. v. Allen, 16 F.3d 377, 378 (10th Cir. 1994). To overcome this procedural bar, the defendant must show cause for his failure to present the claim on direct appeal and prejudice resulting therefrom, or that a fundamental defect occurred which inherently resulted in a complete miscarriage of justice. Coleman v. Thompson, 501 U.S. 722, 750 (1991); Allen, 16 F.3d at 378.
An ineffective assistance of counsel claim can serve as "cause" to excuse procedural default of other underlying or "stand alone" claims, but only if the defendant can meet the "cause or prejudice" standard required for establishing ineffective assistance of counsel. See Edwards v. Carpenter, 120 S.Ct. 1587, 1591 (2000); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).
The court is not persuaded that the defendant has demonstrated cause and prejudice for any of his claims including his ineffective assistance of counsel claims. Nevertheless, in an effort to construe plaintiff's claims liberally, the court shall proceed to the merits of these claims.
The court notes at the outset that by pleading guilty, the defendant waived all non-jurisdictional challenges to his conviction and his "only avenue for challenging his conviction is to claim that he did not voluntarily or intelligently enter his plea." U.S. v. Wright, 43 F.3d 491, 494 (10th Cir. 1994). Accordingly, the court is left with considering only the defendant's claims of lack of voluntariness of his guilty plea and ineffective assistance of counsel.
The defendant contends that his guilty plea was made under duress. He asserts that he entered a plea because he had been subjected to harsh treatment while he was incarcerated at the Shawnee County Jail. In the instant motion he states: "The threat of being detained any longer in the Shawnee County Jail and terrorised (sic) and traumatised (sic) by more violence made my instinct for survival be the driving force of my plea along with the recommendation of a prison camp, instead of a dangerous prison."
Although a valid guilty plea may not be obtained through coercion or duress, Osborn v. Shillinger, 997 F.2d 1324, 1327 (10th Cir. 1993) (citations omitted), the U.S. Supreme Court's longstanding test for determining the validity of a defendant's guilty plea is simply "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quotation omitted).
The court has thoroughly examined the record of the guilty plea hearing, including the petition that the defendant signed during that hearing. The record fails to reflect any support for the defendant's suggestion that he was under duress. During the guilty plea hearing, the court meticulously questioned the defendant concerning (1) the charge against him; (2) his satisfaction with his counsel; (3) his understanding of the plea agreement; and (4) the voluntariness of the plea. The court further informed the defendant about (1) the details of the plea agreement; (2) the maximum penalties for the offense to which he was pleading guilty; (3) the rights he would relinquish by pleading guilty; (4) the potential application of the sentencing guidelines and how his sentence would be determined; and (5) the essential elements of the crime for which he was charged and the need for the government to prove those elements. The defendant, under oath, acknowledged all of the aforementioned information and indicated that he fully understood what he was doing. He admitted that he was aware of the charge against him and the consequences of a guilty plea. He further indicated that the plea was knowing and voluntary. Finally, he provided an independent basis in fact for the plea. In open court, the defendant made the following statement when asked what he had done in this case: "Agreed with Melissa Paxton to manufacture a substance containing methamphetamine mixture of at least 350 grams but less than 500 grams." He made the same statement in the guilty plea petition filed with the court. In sum, the court does not find any basis for the defendant's contention that his plea was not voluntary.
The defendant's ineffective assistance of counsel claims are not entirely clear. He does assert several instances where he believes that his counsel was ineffective, but he appears to stop short of alleging that he would not have entered a guilty plea in this case but for the ineffectiveness of his counsel. At one point in his motion he states: "I feel that my attorney representation has fallen below an objective standard of responsibility and changed the outcome in my case." In a later argument he states: "[I]f I have been allowed to view this evidence [drug analysis reports], I would of (sic) been able aid in my defense or make plea sooner than my trial day, and I would have been able to make a more reasonable plea based on the facts of the evidence." The court shall construe the defendant's motion liberally and conclude that he is asserting that his counsel provided constitutionally ineffective assistance and, as a result, his guilty plea was unknowing and involuntary.
The defendant contends that his counsel was ineffective in the following ways: (1) failed to meet and confer with him enough; (2) failed to file certain motions; (3) failed to have an independent chemical analysis performed on the drugs; (4) failed to provide discovery materials to him; and (5) failed to adequately investigate the case.
"The benchmark for judging any claim of ineffectiveness must be whether the counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). To obtain relief on an ineffective assistance of counsel claim, a defendant must satisfy a two-pronged test. First, he "must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688. Second, he must show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694. To meet the first prong, a defendant must show that defense counsel's performance was neither reasonable under prevailing professional norms nor sound trial strategy. To meet the second prong, petitioner must show a reasonable probability that, but for the deficiencies in counsel's conduct, the result of the case would have been different. A probability is reasonable if it is sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694. The court "may address the performance and prejudice components in any order, but need not address both if [the defendant] fails to make a sufficient showing of one." Cooks v. Ward, 165 F.3d 1283, 1292-93 (10th Cir. 1998), cert. denied, 120 S.Ct. 94 (1999); see also Davis v. Executive Director of Dept. of Corrections, 100 F.3d 750, 760 (10th Cir. 1996) (noting that court can proceed directly to prejudice without addressing performance), cert. denied, 520 U.S. 1215 (1997). When a guilty plea is being challenged, the establishment of prejudice requires "show[ing] 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 v. Lockhart, 474 U.S. 52, 59 (1985).
There is a strong presumption that counsel provided effective assistance of counsel, and the defendant has the burden of proof to overcome that presumption. U.S. v. Cronic, 466 U.S. 648, 658 (1984). "Judicial scrutiny of counsel's performance must be highly deferential." Strickland, 466 U.S. at 689. The reasonable-ness of the counsel's performance must be evaluated at the time of the alleged error. Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). "For counsel's [decision] to rise to the level of constitutional ineffectiveness, the decision . . . must have been `completely unreasonable, not merely wrong, so that it bears no relationship to a possible defense strategy.'" Hatch, 58 F.3d at 1459 (quoting U.S. v. Ortiz Oliveras, 717 F.2d 1, 4 (1st Cir. 1983)). Neither hindsight nor success is the measure of the reasonableness of counsel's challenged conduct. Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997).
The court is not persuaded that the plea was the result of ineffective assistance of counsel. During the plea proceeding, the defendant readily admitted that he was "fully satisfied with the representation and advice given" by his counsel. The defendant's current statements are self-serving and are not supported by any credible evidence. See Parke v. Raley, 506 U.S. 20, 37 (1992) (noting court was not convinced by defendant's self-serving assertion that he could not remember whether he was advised of his constitutional rights). The truth and accuracy of the defendant's statements made in court under oath are "conclusive in the absence of a believable reason justifying" their rejection. U.S. v. Bambulas, 571 F.2d 525, 526 (10th Cir. 1978).
Moreover, the record suggests that defendant's counsel ably handled the case. Defendant's counsel, an experienced criminal defense attorney, was able to secure a plea agreement that was extremely favorable. The plea agreement demonstrated a thorough understanding of the applicable facts and law in this case. The plea agreement provided that, at sentencing, the government would (1) dismiss the charges contained in the indictment and not file any additional criminal charges arising from the activities that formed the basis of the indictment; (2) recommend the maximum for acceptance of responsibility; (3) agree that 350 to 500 grams of methamphetamine was the amount to be attributed to the defendant for the purposes of relevant conduct; (4) not recommend a fine; (5) not take a position on the defendant being designated by the Federal Bureau of Prisons to a minimum security facility; (6) take no position on the defendant receiving substance abuse treatment while incarcerated; and (7) not ask for a term of imprisonment longer than 96 months. The plea agreement was meticulously detailed and provided for a favorable outcome under difficult circumstances. Several provisions of the agreement were particularly remarkable. First, defense counsel was able to obtain an agreement from the government not to oppose a three-level reduction for acceptance of responsibility, even though the plea proceeding occurred after the government had prepared for trial. Second, he skillfully secured an agreement for a conditional plea that allowed the defendant to appeal the court's suppression order, an order that all parties understood decided difficult and somewhat unusual issues. Third, he was able to obtain an agreement that dismissed the indictment and allowed the defendant to plead to an information that avoided a mandatory minimum sentence. Without the plea agreement, the defendant would have received at least a term of imprisonment of 120 months, the applicable mandatory minimum sentence, if he had been found guilty of the charges asserted in the indictment. This result appeared likely given the evidence against the defendant, including the testimony of both co-defendants. After a thorough review of the background, the court is not persuaded that the defendant has or can demonstrate that his counsel was ineffective.
Finally, the court does not find that the defendant has demonstrated sufficient evidence of prejudice. The defendant has suggested that his counsel failed to file certain pretrial motions, but he has failed to demonstrate that any of the motions would have been successful. The defendant also contends that his counsel failed to meet with him on enough occasions and also failed to provide him with necessary discovery. The defendant has failed to indicate how his case would have turned out any differently with any additional meetings with his counsel or with additional information. The defendant has noted that he has received some information concerning the drug analyses that were conducted by the Drug Enforcement Agency (DEA) in this case and has asserted that this information fails to support the statements that were contained in his presentence report. The defendant has failed to provide this report to the court in support of his motion. The court has reviewed the DEA reports that were used for the presentence report and finds that they coincide with the information contained in the presentence report.
The defendant has suggested that his counsel should have filed a motion to dismiss based upon lack of probable cause and a motion to dismiss based upon a violation of the Speedy Trial Act. Both motions would have been unsuccessful. An indictment constitutes a determination of probable cause. U.S. v. Stricklin, 932 F.2d 1353, 1354 (10th Cir. 1991). Accordingly, any motion to dismiss based upon a lack of probable cause would have been denied.
The defendant has also suggested that his counsel failed to adequately investigate his case and was not properly informed of the applicable facts. The court again finds that the defendant has failed to properly support either of these assertions. The defendant has suggested that his counsel could have learned of some additional impeachment evidence concerning Paxton. The defendant, however, has failed to suggest how this information would have affected his decision to plead guilty. See U.S. v. Otero, 848 F.2d 835, 838 (7th Cir. 1988) (rejecting an ineffective assistance claim where the defendant failed to demonstrate prejudice resulting from his attorney's failure to investigate potential impeachment evidence).
In sum, the court shall deny the defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
IT IS THEREFORE ORDERED that defendant's motion for discovery (Doc. # 204) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 (Doc. # 193) be hereby denied.
IT IS SO ORDERED.
Moreover, there was no violation of the Speedy Trial Act. Under the Speedy Trial Act, a defendant must be brought to trial within seventy days after the latter of the filing of an indictment or an appearance by the defendant before a judicial officer. 18 U.S.C. § 3161(c)(1). Certain defined periods of delay are automatically excluded from the calculation of the seventy-day time limit. 18 U.S.C. § 3161(h)(1)-(7). The Act mandates dismissal of the indictment upon defendant's motion if the seventy-day period is exceeded. 18 U.S.C. § 3162(a)(2).
In this case, the speedy trial clock began running on June 7, 2000, the date of the indictment. The seventy-day period actually began on June 8, 2000, since the date of the indictment is not counted. U.S. v. Johnson, 12 F.3d 1540, 1544 n. 1 (10th Cir. 1993). The trial was scheduled for March 27, 2001, and the defendant entered a guilty plea on that date. The period between June 7, 2000 and March 27, 2001 consists of 293 days. Accordingly, in order to avoid a Speedy Trial Act violation, there must be 223 days of excludable time.
The court has examined the docket sheet and we have easily discovered in excess of 223 days. The following time period is excludable because pretrial motions were pending: July 5, 2000 to September 1, 2000 (59 days). 18 U.S.C. § 3161(h)(1)(F). The time period from September 19, 2000 to March 27, 2001 (190 days) is excludable because the trial of the case was continued upon the motions of the parties, and the court found that the ends of justice served by the continuance outweighed the best interest of the public and the defendant in a speedy trial. 18 U.S.C. § 3161(h)(8)(A). Thus, the court has found at least 249 days of excludable time. In reaching this figure, we note that there are other periods of excludable time, but we find it unnecessary to continue our study since we find no Speedy Trial Act violation.