Opinion
File No. 1:00-CV-895, (Crim. No. 1:96-CR-150-02)
February 2, 2001
MEMORANDUM OPINION AND ORDER
This is a pro se habeas corpus action in which Petitioner Marlon Wilson alleges that he received ineffective assistance of counsel. Petitioner has made a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence.
In March 1997 Petitioner Marlon Wilson was found guilty by jury verdict of Conspiracy to Distribute Cocaine in violation of 21 U.S.C. § 846 and 841(a). On June 19, 1997, Petitioner was sentenced to 360 months incarceration. Petitioner filed a notice of appeal from the sentencing, alleging that the sentencing court erred in classifying Petitioner as a career offender pursuant to U.S.S.G. § 4(B)(1). 1. See United States v. Wilson, 168 F.(3)d 916 (6th Cir. 1999).
On remand, this Court on May 5, 1999, sentenced Petitioner to 188 months incarceration. Petitioner appealed that sentence to the Sixth Circuit, contending that this Court: (1) was not limited by the scope of the remand order, (2) should have granted him a downward departure, and (3) erred in calculating the drug quantity. The Sixth Circuit affirmed this Court. See United States v. Wilson, 202 F.3d 271 (6th Cir. 1999). Wilson now brings this motion alleging his Sixth Amendment right to effective representation of counsel has been violated.
A prisoner who moves to vacate or reduce his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution of the United States, that the court was without jurisdiction to impose the sentence, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. A Petitioner will prevail only if he shows a "fundamental defect which inherently results in a complete miscarriage of justice." Hill v. United States, 368 U.S. 424, 428 (1968).
Petitioner contends that counsel was ineffective for failure to present to this Court mitigating factors and other sentencing alternatives. See Petitioner's Motion, at 4. To show he was denied effective assistance of counsel Petitioner must show, first, that counsel's performance fell below the objective standard of reasonableness and so prejudiced defendant that he was denied a fair trial; and second, that a reasonable probability exists that but for counsel's conduct, the result would have been different. Strickland v. Washington, 466 U.S. 668 (1984). Petitioner must overcome the presumption that an attorney is competent (see United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995)); the presumption that counsel's behavior lies within a broad range of reasonable professional assistance (see OHara v. Wigginton, 24 F.3d 823 (6th Cir. 1994)); and the presumption that under the circumstances, the challenged action might be sound trial strategy (see Strickland, 466 U.S. at 689).
Judicial scrutiny of counsel's performance must be highly deferential. Courts presume that an attorney is competent and the burden rests upon the defendant to show a constitutional violation. See United States v. Pierce, 62 F.3d 818, 833 (6th Cir. 1995).
First, Petitioner claims counsel was ineffective for his failure to introduce documentation of Petitioner's separation from Petitioner's wife in late 1995. See Petitioner's Motion, at 7. But evidence supporting the separation was already in the record, and even if found to be true by the jury, it would not exculpate Petitioner.
The indictment against Petitioner charged a conspiracy from 1993 through 1996. Testimony indicating the existence of the conspiracy centered principally in 1994 and 1995. It was not until October of 1995 that Petitioner's wife obtained a Personal Protection Order against Petitioner. Petitioner was arrested in July of 1996, following the July 2, 1996, search of the family home by police. Trial testimony indicated that Petitioner and his wife engaged in dealing cocaine together until the couple "split up" in October of 1995. Thus the jury heard testimony that the couple had separated in October of 1995. Even if further evidence could have been offered documenting the separation, it would not negate testimony regarding the earlier period covered by the indictment.
Second, Petitioner asserts that counsel was ineffective for failing to move for a downward departure under § 5K2.0. See Petitioner's Motion, at 6. This is a red herring.
Nothing in the record or proffered by petitioner supports such a motion, and therefore counsel cannot have been ineffective in not making the motion.
Third, Petitioner contends that counsel refused to submit to this Court a memorandum Petitioner purchased from National Legal Professional Associates (NLPA). Petitioner asserts that the NLPA document would have resulted in a downward departure. The NLPA is not licensed to practice law in Michigan or admitted before this Court. Therefore this Court can not accept any materials from NLPA. Furthermore, whether to incorporate NLPA's document substance into counsel's arguments during sentencing is a choice of strategy well within the purview of counsel. See Strickland, at 689.
Fourth, Petitioner contends that he should have been granted a downward adjustment in the sentencing guidelines because he played a "minor" or "minimal" role in the conspiracy, and that counsel failed to present such evidence from the record. See Petitioner's Motion, at 6. This is a bare assertion unsupported by the record. No evidence arguably supports such a determination from the trial record, or otherwise.
Despite Petitioner's assertions, the record indicates that trial counsel's performance did not fall below the objective standard of reasonableness and so prejudice Petitioner that he was denied a fair trial. Moreover, even if trial counsel had done all that Petitioner asserts he failed to do, the record indicates that it is reasonably probable that the result would have been no different.
Fifth, Petitioner also asserts that attributing 16.5 kilograms of cocaine to Petitioner during the conspiracy was too high, unjustly resulting in a higher sentence. After reviewing the record, this Court concludes that the amount attributed is supported by the record. Moreover, the Sixth Circuit Court of Appeals addressed this issue and affirmed this Court's attribution of 16.5 kilograms to Petitioner in the course of the conspiracy. See United States v. Wilson, 168 F.3d 916, 925 (6th Cir. 1999).
A review of the record in consideration of Petitioner's arguments indicate that Petitioner has failed to show, on any of the grounds offered, a fundamental defect which inherently results in a complete miscarriage of justice. Accordingly,
IT IS HEREBY ORDERED that Petitioners' Motion to Vacate, Set Aside, or Correct the Sentence pursuant to 28 U.S.C. § 2255 (Docket # 1) is DENIED.