Opinion
Criminal Action No.: 8:11-cr-02356-JMC-10
12-04-2014
Tarence Jamar Henderson, Petitioner, v. United States of America, Respondent.
ORDER AND OPINION
This matter is before the court on Petitioner Tarence Jamar Henderson's ("Petitioner") Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. (ECF No. 708.) Respondent United States of America filed a response in opposition to Petitioner's motion and contemporaneously moved for summary judgment. (ECF No. 720.)
After reviewing the parties' respective memoranda and the record of the underlying proceedings, the court determines that an evidentiary hearing is unnecessary. For the reasons set forth herein, the court DENIES Petitioner's § 2255 motion and GRANTS summary judgment in favor of the Government.
I. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
On December 13, 2011, Petitioner and several co-defendants were indicted by the Grand Jury on numerous charges. (ECF No. 3.) On March 20, 2012, pursuant to a written plea agreement (ECF No. 312), Petitioner pled guilty to Count 1 - conspiracy to distribute 5 kilograms or more of cocaine and 28 grams or more of cocaine base in violation of 21 U.S.C. §§841(a)(1), (b)(1)(A) and (b)(1)(B) and 846. (ECF No. 325.) In exchange for Petitioner's guilty plea and his efforts to cooperate, the Government agreed to move for the dismissal of the remaining charges of the indictment as set forth in the plea agreement. (Id.) On November 20, 2012, Petitioner was sentenced to one hundred twenty one (121) months imprisonment followed by a term of supervised release of five (5) years. (ECF No. 560.) On November 27, 2012, the judgment was entered. (ECF No. 579.)
Respondent dismissed the following counts: 21 U.S.C. § 846 conspiracy to distribute 5 kilograms or more of cocaine and 28 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) and (b)(1)(B) (December 2011) (1); 21 U.S.C. § 846 distribution of 5 kilograms or more of cocaine and 280 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A) (1s); 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) distribution of a quantity of cocaine (March 28, 2011) (11); 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) distribution of a quantity of cocaine (11s), controlled substance- sell, distribute, or dispense of cocaine (11ss); 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) distribution of 500 grams or more of cocaine (April 6, 2011) (12); 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B) distribution of 500 grams or more of cocaine (12s); 21 U.S.C. § 841(a)(1) controlled substance- sell, distribute, or dispense of 500 grams or more of cocaine (12ss); 18 U.S.C. § 924(c)(1)(A) carried a firearm in a drug trafficking crime (April 6, 2011) (13); and 18 U.S.C. § 924(c)(1)(A) carried a firearm in furtherance of a drug trafficking crime (13s); 18 U.S.C. § 924 (c)(1)(A) penalties for firearms (13ss).
Petitioner did not appeal his conviction and sentence. However, on July 12, 2013, Petitioner filed a Motion to Reconsider his sentence. (ECF No. 675.) The Government filed a response on July 25, 2013. (ECF No. 677.) By order dated November 5, 2013, the court treated Petitioner's motion as a request for the court to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (ECF No. 701). Petitioner was ordered to amend his motion for relief within 20 days.
On November 22, 2013, Petitioner timely filed this motion pursuant to 28 U.S.C. § 2255 (ECF No. 708.) Respondent filed a response to the motion and a motion for summary judgment on February 20, 2014. (ECF No. 720.)
Petitioner now presents 4 grounds for relief in a Motion to Vacate, Set Aside, or Correct his sentence pursuant to 28 U.S.C. § 2255. In his motion, Petitioner contends that he received ineffective assistance of counsel at sentencing, the Government acted in bad faith in failing to file a § 5K1.1 Departure Motion, Petitioner's consecutive minimum penalties violates double jeopardy, and the Government failed to provide evidence establishing federal jurisdiction.
II. LEGAL STANDARD AND ANALYSIS
A prisoner in federal custody under sentence of a federal court may petition the court that imposed the sentence to vacate, set aside, or correct the sentence. See 28 U.S.C. § 2255. The prisoner may be entitled to relief upon a showing that: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose such sentence; (3) the sentence was in excess of the maximum authorized by law, and (4) the sentence is otherwise subject to collateral attack. Id. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving his grounds for collateral attack by a preponderance of the evidence. White v. United States, 352 F. Supp. 2d 684, 686 (E.D. Va. 2004) (citing Miller v. United States, 261 F.2d 546 (4th Cir. 1958)). In ruling on a § 2255 motion, the court may dismiss the motion without a hearing where it conclusively shows from the motion, any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief. 28 U.S.C. § 2255(b) (noting that a hearing is not required on a § 2255 motion if the record of the case conclusively shows that petitioner is entitled to no relief).
In the First Ground, Petitioner alleges that his Counsel provided ineffective assistance in several instances: Counsel "failed to make any arguments or objections to the calculations in the PSR," Counsel did not object or make any arguments against "the imposition of a statutory minimum sentence of 120 months imprisonment," and "counsel failed to make an argument indicating that a § 5K1.1 motion was promised and that Respondent had failed to file such a motion." (ECF No. 708 at 4.) To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate: (1) that the representation of counsel fell below an objective standard of reasonableness; and (2) that the petitioner was prejudiced by counsel's deficiencies to the extent that she was denied a fair trial. See Strickland v. Washington, 466 U.S. 668, 687-92 (1984). The 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." Id. at 694. The court reviews "the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Id. at 690.
An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. United States v. Morrison, 449 U.S. 361, 364-65 (1981). The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding. Strickland, 466 U.S. at 691-92. Accordingly, any deficiencies in counsel's performance must be prejudicial to the defense in order to constitute ineffective assistance under the Constitution. Strickland, 466 U.S. at 692.
It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding because almost every act or omission of counsel would meet that test. United States v. Valenzuela-Bernal, 458 U.S. 858, 866-67 (1982). However, the Court has noted that not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceeding. Strickland, 466 U.S. at 693.
In this case, there is no evidence in the record that indicates that Petitioner's Counsel provided ineffective assistance. There are no valid arguments or objections to be raised to a correctly calculated PSR or minimum sentence range. As the record reflects, Petitioner had no objections to the PSR and confirmed with this court that he understood that he faced a minimum sentence of ten years. (ECF No. 707 at 2-5.) Petitioner has failed to carry the burden of establishing any breach and his statements under oath during the guilty plea and sentencing hearings directly contradict the position he attempts to advance now. At sentencing, Petitioner confirmed with the court that he had the opportunity to go over the PSR with his attorney and he had no objections to the report. (ECF No. 707 at 2.) In addition, the court confirmed that Petitioner understood his base offense level, his two-level enhancement for possessing a dangerous weapon while in possession of this quantity of drugs, less acceptance of responsibility reductions, and his total offense level. (Id. at 3.) Petitioner also confirmed that he understood that he faced a minimum sentence of 10 years, was not eligible for probation, and had an advisory guideline range of 121 months to 151 months. (Id. at 3-4.) The court had an extended discussion of his criminal history category. (Id. at 8-10.) Thus, Petitioner is procedurally barred from raising this claim now. The court finds that the PSR and the statutory minimum sentence of 120 months imprisonment were correctly calculated and Petitioner's counsel had no reason to object to them.
Petitioner asserts that his Counsel promised him that the Government would file a § 5K1.1 motion to reduce Petitioner's sentence to between 5 and 7 years and that his Counsel failed to object when the Government did not file the motion. However, nothing within the plea agreement or that is on the record indicates any such promise was ever made to Petitioner by his Counsel. As has already been well established, Petitioner had ample opportunity to make it known on the record if he was not getting what had been promised to him in the plea agreement, but in every instance Petitioner confirmed that he was aware of his minimum sentence and did not object. (ECF No. 707 at 2-5.) Because no evidence exists that Petitioner's Counsel promised a reduction in sentence to between 5 and 7 years and Petitioner's own statements on the record directly contradict the notion that any such promise was ever made, the court finds that Petitioner's Counsel did not err by declining to object to the Government's failure to file a § 5K1.1 motion to reduce Petitioner's sentence.
Additionally, Petitioner does not show how his Counsel's actions were unreasonable or how he was prejudiced by any of Counsel's actions. In contrast to Petitioner's claims, the record reveals that Petitioner's Counsel performed admirably for his client-securing concessions from the Government in the form of dismissing charges that would have added consecutive time to Petitioner's sentence, by advancing several arguments in mitigation to the Court at sentencing, and even securing a self-surrender for his client. On November 20, 2012, Petitioner's Counsel raised a number of arguments on his behalf during the sentencing hearing. Petitioner's Counsel noted that Petitioner was a low-level member of the conspiracy. (ECF No. 707 at 7.) He highlighted Petitioner's educational background and his minimal criminal history. (Id.) He also asked that the court consider the drug treatment program for Petitioner as well as additional vocational training. (Id.) Moreover, he made the court aware that Petitioner has 3 children, had remained gainfully employed since his arrest, had passed all three drug tests administered to him, and had no violations while on bond. (Id.) In arguing for a minimum sentence, Petitioner's Counsel told the court that Petitioner cooperated with law enforcement, noting that Petitioner signed a proffer agreement pre-indictment, and that he always been cooperative doing what Counsel and the Government asked of him. (Id. at 8). Therefore, the court finds that Petitioner's Counsel provided effective assistance to his client.
In Ground Two, Petitioner claims that the Government acted in bad faith by failing to file a § 5K1.1 motion to reduce Petitioner's sentence to between 5 and 7 years. However, Petitioner has not advanced any arguments that he was entitled to a lower sentence based on his cooperation with the Government. Petitioner did not file a direct appeal in this case. The court finds Petitioner had the ability to directly appeal this case and he was aware of this right, but he did not raise the breach of his plea agreement or prosecutorial misconduct on direct appeal. During the guilty plea hearing, the court specifically referenced prosecutorial misconduct as being outside of the appellate waiver. (ECF No. 706 at 37-38.) The Government also summarized this waiver and exceptions contained in Petitioner's plea agreement. (Id. at 52-3; ECF No. 312 at 9-10.) The court again referenced the appellate waiver at the sentencing hearing. (ECF No. 707 at 12.)
The court also finds Petitioner's claims are inconsistent with his own sworn statements during his guilty plea. On March 20, 2012, Petitioner confirmed to this court that his plea was voluntary and was not a result of force or coercion. (ECF No. 706 at 53-4.) During the hearing, Petitioner also confirmed that outside of the plea agreement no other promises had been made to him with respect to sentencing. (Id. at 54.)
Plea agreements are contractual in nature and are interpreted according to general contract principles. United States v. Dawson, 587 F. 3d 640, 645 (4th Cir. 2009) (stating "a central tenet of contract law is that no party is obligated to provide more than is specified in the agreement itself. Accordingly, in enforcing plea agreements, the government is held only to those promises that it actually made and the Government's duty in carrying out its obligations under a plea agreement is no greater than that of fidelity to the agreement."). In the plea agreement, Petitioner's cooperation with the Government did not entitle him to a Motion for a Reduced Sentence by the Government. Petitioner's cooperation had to be "deemed by the Government as providing substantial assistance in the investigation or prosecution of another person." (ECF 312 at 7.) The Government's decision to file or not to file the § 5K1.1 motion was not based on whether the Petitioner cooperated with the Government. It was based on whether the Government in its sole discretion believed Petitioner's assistance was substantial.
Moreover, Petitioner bears the burden of demonstrating the underlying facts that establish the breach of the plea agreement by a preponderance of the evidence. United States v. Lewis, 476 F.3d 369, 387 (5th Cir. 2007). Additionally, Petitioner received the low end of his advisory guideline range, which was one month north of his statutory minimum. Furthermore, pursuant to his plea agreement (ECF No. 312 at 4), The Government moved to dismiss the remaining counts of the second superseding indictment. Therefore, the court finds the Government did not act in bad faith and did not breach its plea agreement with Petitioner.
Petitioner argues that his consecutive minimum penalties violates double jeopardy and Alleyne v. United States in Ground Three, but does not provide supporting facts. (ECF No. 708 at 7.) In Ground Four, Petitioner argues that the Government failed to provide evidence establishing federal jurisdiction, but does not provide supporting facts. (ECF No. 708 at 8.) Generally, courts have held that "conclusory allegations alone, without supporting factual averments, are insufficient to state a valid claim under § 2255." United States v. Moya, 676 F.3d 1211, 1213 (10th Cir. 2012) (citing United States v. Fisher, 38 F.3d 1144, 1147 (10th Cir. 1994)); see also United States v. Roane, 378 F.3d 382, 400-01 (4th Cir. 2004) (stating the conclusory and unsupported statements insufficient for habeas relief); Lynn v. United States, 365 F.3d 1225, 1238 (11th Cir. 2004) (holding that a § 2255 motion failed on the merits when the motion was supported by affidavits containing "nothing more than conclusory allegations"). The court finds that Petitioner's lack of any factual support for these allegations makes both Grounds Three and Four insufficient claims pursuant to § 2255. (ECF No. 721 at 25.) Moreover, Alleyne v. United States does not apply to this case because Petitioner chose to plea instead of go to trial. Also Petitioner's sentence was decreased rather than increased with the dismissal of the remaining charges.
The defendant was convicted of robbery affecting commerce and use of firearm during and in relation to a crime of violence. Alleyne v. United States, 133 S. Ct. 2151 (2013). He was sentenced to 130 months imprisonment. Id. Overruling Harris v. United States, 536 U.S. 545 (2002), the Supreme Court held that any fact that increases the mandatory minimum sentence for a crime is an "element" of the crime, not a "sentencing factor," that must be submitted to the jury. Id. More specifically, the Court found that a fact-finder must determine whether the defendant had brandished, as opposed to merely carrying, firearm in connection with crime of violence, because it would elevate mandatory minimum term for firearms offense from 5 to 7 years, and was an element of a separate, aggravated offense. Id.
--------
III. CONCLUSION
For the foregoing reasons, the court DENIES Petitioner Tarence Jamar Henderson's Motion to Vacate, Set Aside, or Correct a Sentence by a Person in Federal Custody (ECF No. 708) and GRANTS Respondent United States of America's Motion for Summary Judgment. (ECF No. 720.)
IT IS SO ORDERED.
/s/
United States District Judge
Columbia, South Carolina
December 4, 2014