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denying defendant's § 2255 after recharacterizing defendant's motion for extension of time as an actual § 2255 motion
Summary of this case from U.S. v. McGoff-LoveladyOpinion
Civil Action No. 99-3137-SAC, Criminal Action No. 92-40042-01-SAC.
February 2, 2001.
MEMORANDUM AND ORDER
Defendant Perl Glen Van Pelt and six co-defendants were convicted on several counts of conspiracy to possess and distribute marijuana, possession with intent to distribute marijuana, and one or more counts of use of firearm in relation to a drug trafficking offense in violation of 18 U.S.C. § 924(c). The procedural history of the case can be found in United States v. Van Pelt, 938 F. Supp. 697 (D.Kan. 1996). On appeal, the Tenth Circuit affirmed all of defendant's drug trafficking convictions, but set aside the § 924(c) convictions in light of the Supreme Court's decision in Bailey v. United States, 516 U.S. 137 (1995). United States v. Wacker, 72 F.3d 1453, 1480 (10th Cir.), cert. denied, 519 U.S. 848 (1996). The United States subsequently dismissed the counts which alleged use of a firearm in violation of § 924(c), and defendant was resentenced. (Dk. 685).
The court imposed on Van Pelt a 264 month sentence on Counts 1, 4, 5 and 11, to be served concurrently, and 120 months sentence on Counts 6, 8, and 13 to be served concurrently. (Dk. 695). Judgment was filed on October 15, 1996. ( Id.) Defendant then appealed from resentencing, and the Tenth Circuit affirmed defendant's sentence. United States v. Van Pelt, 131 F.3d 153, 1997 WL 738600 (10th Cir. Dec. 1, 1997) (Table), cert denied, Van Pelt v. United States, 523 U.S. 1053 (1998).
Defendant has since filed a Motion for Extension of Time, which this court treated as a motion pursuant to 28 U.S.C. § 2255. (Dk. 855). Defendant has filed a memorandum in support of that motion raising a host of issues, and the government has responded. The court has considered all of the arguments advanced by Van Pelt, both individually and for their cumulative effect, and will address herein most of the arguments raised.
Throughout his memorandum, Van Pelt alleges that he cannot properly state his § 2255 claims without the aid of a trial transcript, and thus labels his claims of error as "tentative grounds for relief." (Dk. 863, p. 3). Van Pelt has not made an adequate showing of a particularized need for the transcript. See 28 U.S.C. § 753(f); United States v. Austin, 48 F.3d 1233, 1995 WL 94632 (10th Cir. 1995) (Table). In fact, the claims made in Van Pelt's memorandum are sufficiently specific as to refute Van Pelt's assertion of peculiarized need, and confirm the court's previous finding that no transcript was shown to be needed.
As this court has recently stated:
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). "Consequently, a defendant may not raise claims that were not presented on direct appeal unless he can show cause and prejudice resulting from the error. " United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citing Warner). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." Cook, 45 F.3d at 392 (citing Murray v. Carrier, 477 U.S. 478, 488 (1986)). [2] Conversely, absent special circumstances, "[a] § 2255 may not relitigate issues that were raised and considered on direct appeal." United States v. Perez, 129 F.3d 255, 1997 WL 691075 (2nd Cir. Nov.7, 1997); United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989) (absent an intervening change in the law, issues disposed of on direct appeal will not be considered on a collateral attack by a § 2255 motion); Barton v. United States, 791 F.2d 265, 267 (2nd Cir. 1986) (absent special circumstances a § 2255 is not an avenue for relitigating questions raised and considered both by the trial court and on appeal).United States v. Gooding, 1997 WL 833291 (D.Kan. Dec. 11, 1997).
On Van Pelt's direct appeal, the Tenth Circuit squarely ruled upon several of the issues Van Pelt raises in this motion. Specifically, the Tenth Circuit ruled that the sentencing enhancement based on defendant's role as an organizer and leader of the operation was proper. Wacker, 72 F.3d at 1476. This claim, and others addressed in Van Pelt's direct appeal, will not be readdressed herein.
Ineffective Assistance of Counsel
Van Pelt raises each of his claims of error under the guise of ineffective assistance of counsel, citing numerous issues that were allegedly omitted from pretrial motions, from trial, from direct appeal, or that were not "adequately presented" or "properly argued" to the court.
The Sixth Amendment of the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." "An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991) ( citing Gideon v. Wainright, 372 U.S. 335 (1963)). The Sixth Amendment guarantee of effective assistance of counsel "demands that defense counsel exercise the skill, judgment and diligence of a reasonably competent defense attorney." Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (en banc), cert. denied, 445 U.S. 945 (1980).
To establish a claim for ineffective assistance of counsel, a defendant must show that (1) his counsel's performance was constitutionally deficient, and (2) counsel's deficient performance was prejudicial. Strickland [v.Washington], 466 U.S. [668] at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 [(1984)]. Counsel's performance is deficient if the representation "falls below an objective standard of reasonableness." Id. at 690. Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.
Cook, 45 F.3d at 392. "There is a strong presumption that counsel provided effective assistance, and a section 2255 defendant has the burden of proof to overcome that presumption." United States v. Williams, 948 F. Supp. 956, 960 (D.Kan. 1996) (citations omitted), aff'd, 118 F.3d 717 (10th Cir.), cert. denied, Williams v. United States, 522 U.S. 1033 (1997).
"When a defendant alleges his appellate counsel rendered ineffective assistance by failing to raise an issue on appeal, we examine the merits of the omitted issue." Cook, 45 F.3d at 392-93; see United States v. Martin, 107 F.3d 22 (10th Cir. 1997) (Table) ("Cause and prejudice may be established by showing that appellate counsel rendered ineffective assistance in failing to appeal meritorious issues.") Counsel's failure to argue some of the issues presented now does not demonstrate ineffective assistance, as "counsel's failure to advance a meritless argument cannot constitute ineffective assistance of counsel." Rodriguez v. United States, 17 F.3d 225, 226 (8th Cir. 1994).
Firearms Enhancement
Defendant continues to maintain that he should not have received an enhancement for possession of a firearm pursuant to U.S.S.G. § 2D1.1(b)(1). This issue was adequately addressed during the defendant's appeal from resentencing and may not be readdressed now on collateral attack. United States v. Van Pelt, 1997 WL 738600, at *1, n. 2 (D.Kan. Dec. 1, 1997) (specifically rejecting Van Pelt's argument that the facts in the record do not support a sentence enhancement under § 2D1.1(b)(1), and further finding that the enhancement was proper under the factual circumstances of the case). See United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1993).
Michael Lipp's Prior Convictions
Defendant vehemently argues that Michael Lipp's prior convictions were overly prejudicial to him at trial. Defendant submits that his counsel should have raised this issue on appeal and because he did not, the argument supports an ineffective assistance of counsel claim.
Defendant argues that Old Chief v. United States, 519 U.S. 172 (1997), is somehow relevant to his challenge to the admission of his co-defendant's prior convictions. Old Chief held that where a defendant offers to stipulate to his prior record for purpose of establishing a prior felony under Title 18, U.S.C. § 922(g), the government must accept this stipulation and may not present further evidence of defendant's prior criminal history before the jury. See Old Chief, 519 U.S. at 178, citing, United States v. Wacker, 82 F.3d 1453, 1472-73 (10th Cir. 1995). Old Chief was not the law at the time of trial in this case. Thus, defendant's counsel cannot be faulted for failing to argue the issue at trial. See Redding v. United States, 105 F.3d 1254 (8th Cir. 1997). Old Chief's rationale is not retroactive and is thus inapplicable to relief in a § 2255. See In re Green, 144 F.3d 384, 386-87 (6th Cir. 1998).
Further, the Tenth Circuit addressed this issue on Van Pelt's direct appeal. Although it held that the court abused its discretion in admitting the journal entries detailing Lipp's prior felony convictions when Lipp had offered to stipulate to the fact of such convictions, the court found such error harmless in light of the overwhelming evidence of Lipp's guilt. 72 F.3d at 1471-74. Here, Van Pelt has failed to demonstrate that the admission of the specific nature of Lipp's prior convictions had a substantial influence on the outcome of the case against him, as is required. See United States v. Flanagan, 34 F.3d 949, 955 (10th Cir. 1994).
Defendant's Prior Convictions
Defendant continues to complain about the admission of his prior criminal record at trial. Defendant's prior convictions for marijuana trafficking were properly admitted under Fed.R.Evid. 404(b), as the Tenth Circuit found on direct appeal. See Wacker, 72 F.3d at 1468-69, and cannot be raised now.
Amount of Marijuana Attributable to the Defendant .
Defendant argues that this court improperly calculated his sentence regarding the amount of marijuana involved in the conspiracy. This issue was already addressed by the court during the first sentencing and was renewed and addressed during the resentencing. (Dk. 588 at 35; Dk. 717 at 9.) This court made particular findings as to the amount of marijuana involved. Those findings were not challenged by this defendant on appeal and are now waived. See United States v. Frady, 456 U.S. 152, 164 (1982). Further, the amount of marijuana was challenged on appeal by Van Pelt's co-defendants, Leroy Allen Cooley and Edith Wacker. Each was denied relief based upon this court's correct findings at sentencing. Wacker, 72 F.3d at 1477-78, 1478 n. 20. Therefore, the likelihood of a different outcome on appeal had Van Pelt raised this issue in the first instance is minimal, at best.
The Sentencing Enhancement Pursuant to § 851 Was Proper .
Defendant challenges the enhancement for a second narcotics violation under 21 U.S.C. § 851. Defendant claims that his prior convictions did not support the enhancement, and that his counsel did not raise the issue prior to sentencing.
Defendant errs in asserting that his counsel did not argue or contest the issue. A motion was filed prior to sentencing asking the court not to impose the enhancement. (Dk. 512). This court specifically addressed and denied defendant's motion prior to sentencing. (Dk. 588 at 32-33.) Defendant did not raise this issue on appeal and is barred from raising the issue now. Frady, 456 U.S. at 164.
Additionally, defendant's claim amounts to a factual challenge of his prior convictions. Van Pelt could not and still cannot make such a challenge. Section 841(e) states:
No person who stands convicted of an offense under this part may challenge the validity of any prior conviction alleged under this section which occurred more than five years before the date of the information alleging such prior conviction.
Van Pelt's convictions were in 1976 and 1983. Therefore, Van Pelt, as pointed out by his counsel, was statutorily barred from challenging the factual basis or validity of those convictions.
Disparity of Sentencing
Defendant argues that the 700 pounds of marijuana that were burned by Lewis and John Wacker should not have been counted toward his sentence because Lewis and John Wacker were acquitted of the charges related to that event.
Van Pelt, however, was charged with and convicted of the 700 pound possession. Thus, this amount of marijuana necessarily had to be factored into his sentence as it was the basis for his conviction on Count 4. The 700 pounds of marijuana, while calculated in the entire amount of marijuana as it related to the conspiracy, were not used in determining the offense level under Section 2D.1, however.
Finally, defendant's argument that there was an "unfair disparity" between his sentence and the Wacker brothers' sentence is unavailing. Alleged sentence disparities among co-defendants who "played a significantly different role in the offense" do not justify a departure based upon an unfair disparity. See United States v. Contreras, 180 F.3d 12204 (10th Cir. June 17, 1999). As stated above, Van Pelt was an organizer or leader in the offense. The Wacker brothers were not. Van Pelt was found guilty of possession of 700 pounds of marijuana. The Wacker brothers were not. Accordingly, no reason has been shown to grant relief to Van Pelt based upon the fact that his sentence is greater than the sentences received by the Wacker brothers.
Testimony of Witnesses who Plea Bargained .
Defendant alleges that United States v. Singleton, 144 F.3d 1343 (10th Cir. 1998), prohibits the government from promising leniency to a witness in return for the witness's testimony against another. See 18 U.S.C. § 201(c)(2) (prohibiting the giving, offering, or promising anything of value to a witness for or because of his testimony.)
The Singleton case relied upon by defendant is not good law, and was not at the time of defendant's trial. The Tenth Circuit vacated that case within ten days after it was issued. The Tenth Circuit subsequently held en banc that Section 201 does not apply to the government when an accomplice testifies at trial pursuant to a plea agreement. United States v. Singleton, 165 F.3d 1297 (10th Cir.), cert denied, 527 U.S. 1024 (1999).
Defendant further alleges that while Ms. Carla Wacker was being detained pending her testimony at trial, the government deposited $1,500 in her account. To the extent that the defendant argues that Ms. Wacker's testimony was purchased with the alleged money in her account, the trial record does not support such a claim. Defendant has offered no support for its allegations that any money was paid to Ms. Wacker for anything by the government.
Other Ineffective Assistance of Counsel Claims
Van Pelt has raised a litany of additional issues, specified as ineffective assistance of counsel claims. (Dk. 863, p. 12-14.) The court addresses these below, parroting the alphabetical designations made by Van Pelt in his brief.
A. Search Warrants
Defendant complains that his counsel failed to attack the search warrants and affidavits in his case. The court presumes that Van Pelt means the search warrants executed at his trailer on September 19, 1990. (See Dk. 395 at 63.) However, the defendant has not argued nor stated any reason why a suppression motion would have been successful had his counsel raised it prior to trial. See United States v. Owens, 882 F.2d 1493, 1498 (10th Cir. 1989). In order to prevail on this claim, defendant needs to demonstrate how the affidavits were deficient. Owens, 882 F.2d at 1498. Van Pelt's bald assertion without any factual or legal support is inadequate.
Defendant's counsel adequately cross-examined the case agent regarding this issue, specifically attacking the search of defendant's residence. Defendant's counsel made further cross-examination of the agent relating to the search at the Perry residence. This cross-examination of the agent who participated in the search was sufficient to present a defense to the charges in the indictment. See United States v. Chavez-Marquez, 66 F.3d 259, 263 (10th Cir. 1995).
B. Lack of Handwriting Analysis
Defendant next argues that his counsel was ineffective for failing to analyze the handwriting of Edith Wacker as it related to the drug ledger she kept. Counsel effectively cross-examined all witnesses at trial including the witnesses who specifically testified about the drug ledger and its contents. Any further analysis by an expert would have been merely cumulative or unnecessary given the evidence of guilt presented. See Cooks v. Ward, 165 F.3d 1283, 1293 (10th Cir. 1998).
D. and P. Failure to Interview Witnesses
Defendant next alleges that counsel was ineffective in failing to interview government witnesses prior to trial. This argument, like that above, provides no basis for relief because Van Pelt's counsel effectively cross-examined many government witnesses, including Carla Wacker, during trial. As such, any alleged failure to interview witnesses prior to trial certainly was not fatal to defendant and was sufficient to provide him an adequate defense. See United States v. Chavez-Marquez, 66 F.3d 259, 263 (10th Cir. 1995).
E. No Expert to Examine the Location
Defendant claims ineffective assistance of counsel for not hiring an expert to examine the burn site and opine that there was no evidence of the alleged burning. An expert to examine a "burn site" would not have materially assisted the defendant because the properly admitted statements of Van Pelt's co-defendants confirmed that the burning had occurred. Whether a particular site was or was not burned on a given date is not the kind of subject for which expert testimony is either required or helpful. Instead, this subject was properly within the province of the fact witnesses called to testify at trial. Sufficient evidence existed to prove that 700 pounds of marijuana were burned by John and Lewis Wacker. Van Pelt was free to dispute that fact at trial without expert testimony.
F. Discovery
Defendant alleges that the importance of the omnibus agreement was never explained to him, and that the omnibus agreement denied him access to reports which would have been helpful or essential to his defense. At the court's request, copies of all reports and non-drug evidence in this matter were deposited at C.C.A. where the defendant was incarcerated pretrial. Defendant thus had access to the reports and non-drug evidence he desired, and could have seen them in a private area by merely making an appointment to do so with C.C.A. staff members.
G. and U. Lack of Time Counsel Spent With Van Pelt
Defendant alleges that his counsel spent insufficient time with him in preparation for trial, and as a result, was ineffective at trial. The court takes judicial notice of counsel's performance at the trial of this matter. Mr. Betts was neither among the best nor the worst of the criminal defense attorneys who have appeared before this court. Although ideally Mr. Betts could perhaps have spent more time with the defendant in preparation for trial, this could be said about every case. His representation of the defendant at trial was adequate.
H and T. Suppression Motion
Defendant alleges that his counsel failed to adequately or properly attack the search of a vehicle. Defendant joined the Motion to Suppress a vehicle search filed by his co-defendant and wife, Susan Boyle. (Dks. 43 and 113.) The motion was denied by this court on January 13, 1993. (Dk. 162.) At trial, defendant's counsel renewed the motion to suppress advocated by his co-defendant. That motion attacked the search on various grounds. This court denied relief based upon a finding that the officers had probable cause to search the vehicle, which finding was affirmed on direct appeal. See Wacker, 72 F.3d at 1470-1471. Because probable cause existed, no warrant was required before the search of the vehicle. See United States v. Gama-Bastidas, 142 F.3d 1233, 1239 (10th Cir. 1998). No different result would have been reached had defendant had filed a separate motion to suppress.
I. and J. Carla Wacker
Defendant raises additional issues regarding Ms. Carla Wacker. These have been encompassed above, and no error has been shown, given the fact that Ms. Wacker was extensively cross-examined by defendant's counsel.
L. No James hearing
Defendant asserts his counsel failed to request a hearing regarding the admissibility of his co-conspirator statements.
The Tenth Circuit has recently stated:
Under Tenth Circuit law, the district court may satisfy the prerequisites for admission of a co-conspirator statement through either of two means: by holding a James hearing or by provisionally admitting the statement "with the caveat that . . . the party offering [it] must prove the existence of the predicate conspiracy through trial testimony or other evidence." [citation omitted] In either case, the court may consider the hearsay statement itself as well as independent factors, in determining whether the government has established a conspiracy by a preponderance of the evidence. See Fed.R.Evid. 801(d)(2); see also United States v. Bourjaily, 483 U.S. 171, 181, 107 S.Ct. 2775, 97, L.Ed.2d 144 (1987).United States v. Gonzalez-Montoya, 161 F.3d 643, 648 (10th Cir. 1998). The court followed the Tenth Circuit's method of admitting co-conspirator statements and made the appropriate findings prior to submitting the case to the jury. As such, the admission of the statements was proper.
M. X. and Y. Pre-Sentence Report
Defendant argues that his counsel was ineffective in failing to correct alleged false information contained in the Pre-Sentence Report. Defendant has not alleged to this court which statement or information in the report was false, and the court has no independent knowledge of any such falsity.
Counsel for Van Pelt did file a lengthy set of objections to the report, which the court ruled upon. Further, defendant was in open court when he heard his attorney's arguments on the objections and was given the opportunity to respond and comment to this court. Defendant was given an opportunity to speak in his own behalf, and did so at the time of sentencing, but did not mention any specific fact in the Pre-Sentence Report which was allegedly false or needed correction. Thus, defendant was given a meaningful opportunity to correct any false information in the Pre-Sentence Report.
N. Communication Between Boyles and Van Pelt
Defendant alleges that he had no meaningful opportunity to communicate with co-defendant Boyle prior to trial and in preparation for his defense. Defendant has not stated how his alleged inability to communicate with a co-defendant in the manner he desired impacted on his relationship with counsel, or is in any way relevant to a determination regarding counsel's effectiveness.
C.C.A., where Boyle and this defendant were held pretrial, appropriately houses male and female inmates separately. The Magistrate Judge ordered that Boyle and Van Pelt communicate only with counsel present. Although defendant's contact with Boyle was necessarily limited in length by the nature of the housing arrangements and the court order, nothing but defendant's own inhibitions curtailed the content of his communications with Boyle during the times they were together.
S. Failure to File a Timely Notice of Appeal
Defendant correctly asserts that his counsel failed to file a timely notice of appeal. However, this court found excusable neglect and allowed defendant's direct appeal to proceed. (Dk. 538.) Accordingly, defendant suffered no prejudice from the late filing of notice of appeal.
V. Failure to Inform Van Pelt of His Right to Testify
At trial, before the defendant rested its case, the court inquired, through counsel, whether defendant wished to testify on his own behalf. Defendant personally stated that it was his choice and that he was not going to testify in his own behalf. Defendant knew, from the court's inquiry, if not from his own counsel's own advice, that he had a right to testify in his own behalf, and that the decision whether to do so or not was his to make. No prejudice to defendant's rights has occurred.
IT IS THEREFORE ORDERED THAT defendant's motion pursuant to 28 U.S.C. § 2255 (Dk. 855) is denied.