Opinion
NO. 3-99-CR-0234-H(11), NO. 3-01-CV-2684-H
November 26, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and an order of reference from the United States District Court for the Northern District of Texas. The findings, conclusions and recommendation of the United States Magistrate Judge follow:
PROCEDURAL BACKGROUND
Movant pled guilty to one count of conspiracy to possess with intent to distribute marijuana in violation of 21 U.S.C. § 846. Punishment was assessed at 188 months confinement, followed by supervised release for a period of five years. Movant appealed. The Fifth Circuit affirmed in an unpublished opinion. United States v. Childress, No. 00-10296 (5th Cir. Dec. 13, 2000). He then filed this motion seeking post-conviction relief under 28 U.S.C. § 2255.
ISSUES RAISED
Movant attacks his conviction and sentence in seven grounds for relief He contends that: (1) his sentence violates due process in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) the statutes under which he was convicted are facially unconstitutional, (3) the indictment failed to adequately allege all elements of the offense; (4) his sentence exceeds the maximum sentence he could receive under Apprendi; (5) the district court erred in finding the applicable drug quantity; (6) the government breached his plea agreement; and (7) he received ineffective assistance of counsel.
CAUSE AND PREJUDICE STANDARD
Post-conviction relief under section 2255 does not provide redress for every instance of error that may occur in a federal criminal proceeding. United States v. Perez, 952 F.2d 908, 909 (5th Cir. 1992). Instead, the statute affords judicial review of constitutional claims which could not have been raised on direct appeal and would, if ignored, result in a complete miscarriage of justice. Id. at 909; United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). The movant may overcome this procedural bar by a showing of cause excusing the default, and actual prejudice resulting from the errors. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). The ineffective assistance of counsel can meet the cause and prejudice requirement for overcoming procedural default. United States v. Kallestad, 236 F.3d 225, 227 (5th Cir. 2000).
Movant's first six grounds for relief are allegations that could have been raised on direct appeal. Thus, they are procedurally barred unless he can establish cause and prejudice for his default. Movant explains that the first and fifth allegations were not raised before due to the ineffectiveness of counsel. (Motion at 20, 46, 48). This is sufficient to overcome the procedural bar as to those two claims. Kallestad, 236 F.3d at 227.
APPRENDI VIOLATION
Movant first argues that his sentence violates due process in light of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Specifically, he contends that because his indictment failed to allege a drug quantity, his sentence could not exceed the minimum statutory sentence without a jury finding the drug quantity beyond a reasonable doubt. Movant maintains that his sentence should not have exceeded the five years provided for in the "default provision" found in 21 U.S.C. § 841 (b)(1)(D).
The government maintains that this claim is barred under the doctrine announced in Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989) which prohibits application of new constitutional rules of criminal procedure to cases that become final before the new rule is established. See United States v. Brown, 305 F.3d 304, 310 (5th Cir. 2002). The decision in Brown is, however, inapplicable here because movant's direct appeal was still pending at the time Apprendi was decided.
In Apprendi the Supreme Court held that, "other than a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2362-63. Drug quantity is considered an Apprendi fact which must be alleged in the indictment and proved to the jury beyond a reasonable doubt if the government seeks enhanced penalties under § 841(b)(1)(A) or (b)(1)(B). United States v. Randle, 304 F.3d 373, 376 (5th Cir. 2002).
A review of the indictment reveals no specific allegation of drug quantity. Rather, the indictment contains only a reference to section 841(b)(1)(A). (Superseding Indict. at p 2). Counsel did not object to this omission to the trial court, undoubtedly because Apprendi had not yet been decided. Accordingly, had he raised this claim on appeal, the standard of review would have been plain error United States v. Cotton,__ U.S. __ 122 5 Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (applying plain error review to Apprendi attack on indictment raised for the first time on appeal). In evaluating plain error in this situation, the Supreme Court "makes it very clear that appellate courts must assess the evidence of drug quantity to determine whether the error 'seriously affect[ed] the integrity, fairness, or public reputation of judicial proceedings."' United States v. Baptiste, __ F.3d 2002 WL 31178217 at *2 (5th Cir. Oct. 2, 2002) (quoting Cotton, 122 S.Ct. at 1785).
The court is aware that the Fifth Circuit has held that a failure to allege a drug quantity in the indictment, despite a citation to the enhanced penalty section, was plain error. United States v. Vasquez-Zamora, 253 F.3d 211, 214 (5th Cir. 2001). The Fifth Circuit has recently acknowledged that the Supreme Court's subsequent decision in Cotton effectively abrogated that decision. See United States v. Longoria, 298 F.3d 367, 373-74 (5th Cir. 2002) (en banc).
At sentencing, Customs Service Agent Debbie Note testified that movant was one of the main people in a drug conspiracy involving seventeen participants. (Sentencing Tr. at 7-8). Specifically, movant was involved as a large purchaser from co-defendant Sye Alonzo Lauderdale. ( Id. at 8). Lauderdale told Note that he sold 150 to 200 pounds per month of marijuana to movant over the course of four years. ( Id. at 9). Note therefore approximated the total quantity as 1800 pounds per year for four years. ( Id. at 10, 12). According to Note, another co-defendant, George Henderson, admitted being involved with 4, 000 pounds of marijuana in his guilty plea. ( Id. at 11).
Movant also testified at sentencing. He admitted purchasing an average of 37.5 pounds of marijuana per month from July 1997 through January 1998. ( Id. at 23), Movant further stated that, according to his drug ledgers, he purchased approximately 125 pounds per month from January 1998 until his arrest. ( Id. at 24). He therefore calculated his total involvement at 2011 pounds of marijuana. ( Id. at 24).
Based on the testimony at sentencing, the trial judge found the preponderance of the evidence supported the government's approximation of the drug quantity involved. ( Id. at 31). Accordingly, he sentenced movant to 188 months imprisonment, based upon a drug quantity of 4, 000 pounds (1, 814.4 kilograms) of marijuana. ( Id. at 45; Presentence Report ¶ 35).
Clearly, there was sufficient evidence in the form of testimony from Agent Note to support the trial court's finding of over 1, 000 kilograms of marijuana. See United States v. Cooper, 274 F.3d 230, 240 (5th Cir. 2001) (finding testimony of government agent sufficient evidence to support drug quantity attributed to defendant); United States v. Alford, 142 F.3d 825, 832 (5th Cir. 1998) (district court may consider estimates of drug quantity for sentencing purposes). That drug quantity supports a sentence ranging from ten years to life imprisonment. See 21 U.S.C. § 841 (b)(1)(A). Even absent such testimony, movant himself admitted to involvement in a quantity of drugs exceeding 2, 000 pounds. That quantity is sufficient to support a sentence ranging from five to forty years confinement. Id § 841(b)(1)(B). This Court therefore concludes that an appellate court would not have found plain error under Apprendi in the imposition of movant's sentence. Accordingly, this ground for relief should be denied.
DRUG QUANTITY
Movant next claims that the district court erred in finding the applicable drug quantity. The Court has already concluded that there was sufficient evidence presented to support the drug quantity finding. This claim should be denied.
INEFFECTIVE ASSISTANCE OF COUNSEL
Movant attacks the effectiveness of his counsel on several grounds. Specifically, he claims that counsel: (1) spent very little time with him; (2) did not object to the government's failure to file a motion for downward departure based on substantial assistance; (3) failed to adequately argue the issue of drug quantity; (4) did not seek his input on appropriate appellate issues or keep him informed of the status of his appeal; (5) failed to advise him regarding his right to file a petition for writ of certiorari; and (6) did not diligently pursue a Rule 35(b) reduction.
A. Applicable Law
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case reasonably effective assistance of counsel. U.S. CONST. amend VI; Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 1716, 64 L.Ed.2d 333 (1980). In order to obtain post-conviction relief due to ineffective assistance of counsel, a defendant must satisfy the two-prong test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The defendant must first demonstrate that counsel's performance fell below an objective standard of reasonable professional service. Id, 104 S.Ct. at 2064. He then must show that this deficient performance prejudiced the defense such that the outcome of the trial would have been different. Id There is a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance. Romero v. Lynaugh, 884 F.2d 871, 876 (5th Cir. 1989), cert. denied, 110 S.Ct. 1311 (1990). A defendant must affirmatively show how the actions of his attorney deprived him of a fair trial. Czere v. Butler, 833 F.2d 59, 63-64 (5th Cir. 1987).
B. Discussion
Movant first complains that counsel did not spend enough time conferring with him. According to movant, this prejudiced his ability to secure a downward departure for substantial assistance. Movant does not, however, identify the information he would have provided to the government in support of such a motion. Rather, he merely alleges that his co-defendants were successful in securing departures for their cooperation. (Motion at 68). This claim fails on that basis alone. See Miller v. Johnson, 200 F.3d 274, 282 (5th Cir.), cert. denied, 121 S.Ct. 122 (2000) (conclusory allegations do not raise constitutional issue in federal habeas proceeding). Moreover, movant acknowledged during his rearraignment that counsel had reviewed the charges with him on numerous occasions, gone over a number of different plea agreements, engaged in numerous discussions, and reviewed the factual resume on numerous occasions. (Rearraignment Tr. 4, 7, 12-13). Those admissions by movant in open court, while under oath, negate his contention that counsel did not adequately confer with him.
Movant next claims his attorney did not object to the government's failure to file a motion for downward departure based on substantial assistance. Once again, movant fails to identify the basis for such a motion. Further, he provides no support for the notion that the government was in any way obligated to make such a motion. Rather, the plea agreement provides:
The Government will inform the sentencing Judge and the Probation Office of the nature and extent of defendant's cooperation, if requested. A motion for downward departure from the applicable guidelines under U.S.S.G. § 5K1.1 will be filed by the Government if, and only if in the sole discretion of the United States Attorney for the Northern District of Texas, it is determined that the Defendant had rendered substantial assistance to the Government in its investigation(s) and prosecution(s) of others. The Defendant understands that it is within the sole discretion of the United States Attorney to determine if said cooperation or future cooperation rises to the level of substantial assistance, but it is solely within the discretion of the Court to determine if a downward departure will actually be made. The defendant understands that there have been no promises or representations by the United States that any motion for downward departure will be filed.
(Plea Agreement ¶ 9) (emphasis in original). Movant has not shown that counsel was ineffective for failing to object to the government's failure to file a motion for downward departure.
Movant further argues that counsel failed to adequately challenge the evidence of drug quantity or petition for an evidentiary hearing on the issue. Counsel did object to the drug quantity attributed to movant in the presentence report. (Obj. to Presentence Report at 1). During the sentencing hearing testimony was heard both from a government witness and movant as to the issue of drug quantity. This claim is clearly without merit and should be denied.
Movant also maintains his attorney did not seek his input on appropriate appellate issues or keep him informed of the status of his appeal. (Motion at 69-70). He specifically claims counsel failed to appeal the drug quantity and gun enhancement attributed to him at sentencing. (Motion at 4-5). As discussed above, the drug quantity issue was thoroughly explored at sentencing. The Court has already concluded that sufficient evidence supported the drug quantity finding. Movant has failed to show that a challenge to that evidence would have succeeded on appeal. As to the gun enhancement, the opinion of the Fifth Circuit clearly shows that counsel did appeal on that issue. Childress, No. 00-10296, slip op. at 1-2. This argument is without merit and should be rejected.
Movant next complains that counsel failed to advise him regarding his right to file a petition for writ of certiorari. The right to counsel on direct appeal arises not from the sixth amendment, but from due process and equal protection considerations. Ross v. Moffit, 417 U.S. 600, 608-09, 94 S.Ct. 2437, 2442-43, 41 L.Ed.2d 341 (1974). Due process does require the appointment of effective counsel for a criminal appellant pursuing a first appeal of right. Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985). However, appointment of counsel is not required for a discretionary appeal Ross, 417 U.S. at 610. Thus, because movant was not entitled to representation on a discretionary appeal, he cannot claim that counsel's alleged misadvice regarding said appeal deprived him of the effective assistance of counsel. See United States v. Thomas, 33 Fed. Appx 446, 448, 2002 WL 532419 *2 (10th Cir. 2002) (defendant not deprived of effective assistance of counsel when his attorney did not file a petition for a writ of certiorari). See also Clark v. Johnson, 227 F.3d 273, 284 (5th Cir. 2000), cert. denied, 531 U.S. 1167, 121 S.Ct. 1129, 148 L.Ed.2d 995 (2001) (counsel not ineffective for failing to file petition for rehearing to appellate court because right of appeal does not include discretionary petition); United States v. Lauga, 762 F.2d 1288, 1291 (5th Cir. 1985) (rejecting as without merit claim that counsel was ineffective because he did not seek a writ of certiorari from the Supreme Court).
Finally, movant contends that his counsel did not diligently pursue a Rule 35(b) reduction. Rule 35(b) permits the government to file, within one year after the sentence is imposed, a motion to reduce a defendant's sentence for substantial assistance. FED. R. CRIM. P. 35(b). By the plain language of the rule, resentencing is permitted only on the Government's motion, and only if the defendant rendered substantial assistance after sentencing. United States v. Early, 27 F.3d 140, 141 (5th Cir. 1994). Movant's contention that his attorney was delinquent in not seeking such a reduction fails for two reasons. First, movant, once again, fails to identify the assistance he would have or could have provided. Second, movant does not explain how his attorney could have pursued a reduction which only the government is authorized to seek. This claim for relief is without merit and should be denied.
RECOMMENDATION
The motion to correct, vacate, or set aside sentence should be denied.