Opinion
C.A. No. 2:04-22598-23-PMD, Criminal No. 2:01-388.
November 28, 2005
ORDER
This matter is before the court upon Adolfo Williams's ("Williams") Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. The Government has filed a Response and a Motion for Summary Judgment. For the following reasons, the court denies Williams's § 2255 motion, and grants the Government's Motion for Summary Judgment.
I. BACKGROUND
On May 1, 2001, following an extensive six-month investigation, the United States Attorney's Office Violent Crime Task Force conducted a raid in the America Street and Reid Street area of Charleston. Petitioner Williams was arrested pursuant to this investigation and raid. The investigation uncovered that Williams was a participant in a conspiracy through which over twenty-three kilos of heroin were sold between June of 1999 and April of 2001.
On November 14, 2002, Williams was indicted with a violation of Title 21, United States Code, Section 846 (Conspiracy to Posses with Intent to Distribute and Distribution of Heroin). On December 19, 2002, Williams pled guilty to that indictment ("Plea Agreement"). On August 20, 2003, the court sentenced Williams ("Sentencing Hearing"), pursuant to a sentencing agreement ("Sentencing Agreement"), to a term of 168 months incarceration and five years supervised release. Williams did not file a direct appeal.
On October 25, 2004, Williams filed the instant motion to vacate his sentence pursuant to Title 28, United States Code, Section 2255. He challenged his sentence under Blakely v. Washington, 542 U.S. 296 (2004). The government moved to dismiss on the grounds that Blakely is not retrospective.
On April 25, 2005, Williams filed an amended memorandum in support of the previously filed 2255 motion. Williams now makes two additional claims: (1) that his counsel was ineffective because counsel (a) failed to object to a sentencing enhancement for leadership in the drug conspiracy that was not included in his sentencing agreement and (b) failed to advise him regarding his right to appeal; and (2) that he should be resentenced as a result of the recent decision in United States v. Booker, 125 S. Ct. 738 (2005).
II. STANDARD OF REVIEW
Williams proceeds under 28 U.S.C. § 2255, which provides, in relevant part:
A prisoner in custody under sentence of a court established by Act of Congress 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 . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.28 U.S.C. § 2255. On a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255, the petitioner bears the burden of proving the grounds for collateral attack by a preponderance of the evidence. Miller v. United States, 261 F.2d 546, 547 (4th Cir. 1958). In deciding a § 2255 motion, the court need not hold a hearing if "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The court has thoroughly reviewed the motions, files, and records in this case and finds that no hearing is necessary.
B. Summary Judgment
To grant a motion for summary judgment, this court must find that "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c). The judge is not to weigh the evidence, but rather to determine if there is a genuine issue of fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). If no material factual disputes remain, then summary judgment should be granted against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). All evidence should be viewed in the light most favorable to the non-moving party. See Perini Corp. v. Perini Constr., Inc., 915 F.2d 121, 123-24 (4th Cir. 1990).
III. DISCUSSION
A. Ineffective Assistance of Counsel
In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that a meritorious ineffective assistance claim must demonstrate two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Id. at 687-98. A court's evaluation of counsel's performance under this standard must be "highly deferential," so as not to "second-guess" the performance. Id. at 689. "[A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. (internal quotation marks and citation omitted); see also Fields v. Attorney General of Maryland, 956 F.2d 1290, 1297-99 (4th Cir. 1992); Roach v. Martin, 757 F.2d 1463, 1476 (4th Cir. 1985).
Prior to his Sentencing Hearing, Williams entered a Sentencing Agreement by which he waived his right to contest his sentence in any proceedings under 28 U.S.C. § 2255; however, the Agreement stipulated that "[t]his waiver does not apply to claims of ineffectual assistance of counsel or prosecutorial misconduct." [Sentencing Agreement, ¶ 1.] Williams cites two instances in which his counsel was ineffective: for failing to object to sentencing enhancements which he claims were tantamount to a breach of the Plea Agreement, and for failing to correctly advise him regarding his right to appeal. The court considers each of these claims in turn.
1. Counsel's Failure to Object to Sentencing Enhancements.
Williams claims that his sentence was enhanced for his leadership role in the drug conspiracy in violation of the terms of his Plea Agreement. [Amended Complaint at 4-5.] He further asserts that counsel's failure to object at the Sentencing Hearing to this enhancement constitutes ineffectiveness of counsel. Williams's leadership role as described in the pre-sentence report immediately subjected him to a much higher sentencing level. U.S.S.G. § 3B1.1 ("Based on the defendant's role in the offense, increase the offense level as follows: (a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels.") Williams argues that there is a reasonable probability that the failure to make this objection had a prejudicial effect on his sentence. Further, because the failure to make this objection amounts to ineffective assistance of counsel such that he was denied his Sixth Amendment rights, the court should correct his conviction under 28 U.S.C. § 2255. Upon review of both the Plea Agreement, the Sentencing Agreement and the transcript of the Sentencing Hearing, the court finds that these contentions are wholly without merit.
This assertion is meritless. The Plea Agreement, entered December 19, 2002, stipulates that "Attorneys for the Government agree that any self-incriminating information provided by the Defendant, ADOLFO WILLIAMS, as a result of the cooperation required by the terms of this Agreement, although available to the court, will not be used against the Defendant, ADOLFO WILLIAMS, in determining the Defendant's applicable guideline range for sentencing pursuant to the U.S. Sentencing Commission Guidelines. The provisions of this paragraph shall not be applied to restrict any such information known to the Attorneys for the Government prior to the date of this Agreement." Williams asserts that the Government learned of his leadership from his own self-incriminating testimony and therefore this information should not have been used to enhance his sentence. However, the Government learned of Williams' role in the conspiracy during the investigation of the case. [Gov't Mot. for Sum. Judgment at 6.] See United States v. Hyppolite, 65 F.3d 1151, 1159 (4th Cir. 1995) (holding that the testimony of a credible government witness is sufficient to support a leadership role enhancement). Williams has offered no evidence refuting that the Government's knowledge of his leadership in the conspiracy was garnered prior to the Plea Agreement. As such, the pre-sentence report's recommendation of enhancement based on Williams's leadership role is not a violation of his Plea Agreement.
As stated in the analysis above, the Strickland test requires that a meritorious ineffective assistance claim demonstrate two things: first, that counsel's performance was deficient and, second, that counsel's deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-98. In the Sentencing Agreement, Williams explicitly stipulated and agreed that he "waives and withdraws all sentencing motions and objections to the Pre-Sentence Report." [Sentencing Agreement, ¶ 5.] As such, any attempt by counsel to object to the pre-sentence report at the Sentencing Hearing would have been in violation of the terms of his Sentencing Agreement. As such, counsel's failure to object to this enhancement at the Sentencing Hearing was not a deficient performance, nor was it prejudicial.
Williams further argues that his counsel prejudicially erred in counseling him to sign the Sentencing Agreement, thus denying him his right to object at Sentencing. Williams contends that "counsels advised that he sign the sentence agreement [that] goes against the best interests of his client." [Pet. Reply at 4.] This argument is not tenable, however, in light of the leniency of sentencing Williams received. Under the Sentencing Agreement, Williams agreed to waive his rights to direct appeal and his right to object to the factual statements of the pre-sentence report; in exchange, the Government agreed to make a motion for a two level downward departure under U.S.S.G. § 5K1.1 and to not seek a two level enhancement for a firearm. [Tr. Sentencing Hearing at 4.] In all, the government agreed to a total diminishment of four levels in return for Williams's cooperation. In addition, Williams was sentenced at the very bottom of the applicable level under the Guidelines thanks to the good lawyering of his counsel. The court even noted, "And I'm going to add, for your benefit, that while you are not waiving your right under 2255 or a habeas for raising the issue of ineffective counsel, it would be a ridiculous motion to make after the deal that your lawyers have worked out with the Government to get you to this point." Given the level of deference the court gives to counsel's performance, the court cannot say that counsel's representation was deficient, especially where their advice and advocacy resulted in a significant reduction in Williams's sentence.
Under the Guidelines, and taking all facts as described in the Sentencing Agreement, the court could have sentenced Williams to a term of imprisonment from 168 months to 210 months.
Further, even if Williams's counsel did mislead him as to the import of the Sentencing Agreement, if a sentencing court properly informs a defendant of the potential sentence he faces, prejudice cannot be established through any misinformation his attorney is alleged to have provided. United States v. Foster, 68 F.3d 86, 88 (4th Cir. 1995). At the Sentencing Hearing, the court and the Government thoroughly reviewed all relevant elements of the Sentencing Agreement with Williams and he stated that he understood and assented to them. [Tr. Sentencing Hearing at 3-6.] The court explained to Williams the significance of his Sentencing Agreement, including the importance of the pre-sentence reports description of his leadership role in the conspiracy, which results in a minimum term of imprisonment of 168 months. [Tr. Sentencing Hearing at 6.] The court then ruled "that the Agreement is appropriate, and the parties understand it, and it has been freely and voluntarily agreed to." [Tr. Sentencing Hearing at 6.]. As such, even if his attorneys did not adequately explain the significance of the Sentencing Agreement, Williams was properly informed by the court. Considering the facts in the light most favorable to Williams, as is appropriate in considering a motion for summary judgment, Williams cannot establish that he was prejudiced by his counsel's recommendation that he enter the Sentencing Agreement. Accordingly, Williams's claim of ineffective assistance of council must be denied.
2. Counsel's Failure to Advise Regarding Right to Appeal.
Williams contends that he "was advised wrongly by his counsel not to file a direct appeal" and his reliance on this advise robbed him of his right to appeal. [Amended Complaint at 16-17.] This claim is without merit. In his Sentencing Agreement, Williams agreed to waive his right to appeal in exchange for a departure of four sentencing levels. At his Sentencing Hearing, the court explained, "The right to appeal is a very substantial right. You understand that you have waived it?" Williams replied in the affirmative. [Tr. Sentencing Hearing at 25.] As such, the court holds that Williams's waiver of his right to file a direct appeal was knowing and intelligent and therefore effective. It was not error for Petitioner's counsel to advise him that he was unable to file a direct appeal.
B. Booker/Blakely
Williams also argues that the court should remand his case for resentencing in light of Booker because the sentencing court erred in applying the Guidelines in a mandatory fashion. See United States v. Booker, 125 S.Ct. 738, 775 (2005). However, in his Sentencing Agreement, Williams "waive[d] the right to contest either the conviction or the sentence in any direct appeal or other post-conviction action, including any proceeding under 28 U.S.C. § 2255." [Sentencing Agreement, ¶ 1.] The Fourth Circuit has held that the "subsequent development in the law announced by United States v. Booker decision making sentencing guidelines advisory rather than mandatory [does] not invalidate a defendant's . . . waiver in plea agreement of right to appeal sentence." U.S. v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005); see U.S. v. Rios-Zamora, 2005 WL 2995592, *4 (10th Cir. 2005) (holding that Booker does not disrupt a knowing and intelligent waiver of appellate rights where its enforcement does not result in miscarriage of justice). In this case, the court finds that Williams's waiver in his pre- Booker Sentencing Agreement was knowing and intelligent. [Tr. Sentencing Hearing at 5 and 25.] Thus, Williams is unable to raise this Booker challenge because his explicit waiver of his right to appeal precludes his claim.
IV. CONCLUSION
It is, therefore, ORDERED, for the foregoing reasons that Williams's § 2255 petition is DENIED.
AND IT IS SO ORDERED.