Opinion
Cr. File No. 99-1067(MJD/FLN), Cv. File No. 97-340 (MJD)
February 8, 2002
Jeffrey S. Paulsen, Assistant United States Attorney for and on behalf of Respondent.
Scott F. Tilsen, Assistant Federal Public Defender for and on behalf of Petitioner.
ORDER
The above-entitled matter came before the Honorable Michael J. Davis on a Petition to correct, set aside or vacate Petitioner's sentence pursuant to 28 U.S.C. § 2255.
Background
This case resulted from an undercover investigation that involved controlled buys of crack cocaine. Counts One through Four of the Indictment charged Petitioner with distributing a total of 59.3 grams of crack cocaine. Count Five charged retaliation against a federal witness, who was the confidential informant in the investigation, in violation of 18 U.S.C. § 1513(b)(2). Petitioner entered into a plea agreement with the government, in which he agreed to plead guilty to Count Four, which charged Petitioner with distribution of 13.3 grams of crack cocaine, with the understanding that even though the remaining counts would be dismissed, his sentence would be based on the total amount of drugs involved in all four buys. In addition, the government agreed to recommend a three level reduction for acceptance of responsibility and agreed that a two level reduction pursuant to the "safety valve" provision of § 2D1.1(b)(4) would apply if the requirements of § 5C1.2 were met. Based on the terms of the plea agreement, the projected sentencing guidelines range was 70-87 months imprisonment.
On July 10, 1998, the Court accepted the terms of the plea agreement and Petitioner was sentenced to 70 months imprisonment. Petitioner did not appeal his sentence to the Eighth Circuit Court of Appeals.
In his habeas petition, Petitioner alleged ineffective assistance of counsel due to his attorney's failure: 1) to adequately convey to the court that a greater downward departure was warranted; 2) to contest the drug amount for which he was held accountable for sentencing purposes; and 3) to file a direct appeal despite Petitioner's request. Petitioner contends that an actual conflict of interest prevented his attorney from proceeding in Petitioner's best interests.
On June 13, 2000, the Court conducted an evidentiary hearing on the issues of attorney conflict and failure to file an appeal. At the hearing, Petitioner, and Petitioner's prior counsel, Richard Virnig and Earl Gray, each provided testimony to the Court on the disputed issues. Subsequent to that hearing, the Court denied his motion for relief. See Order dated June 13, 2000.
Petitioner appealed the Order dated June 13, 2000 to the Eighth Circuit. The Eighth Circuit held that Petitioner was entitled to counsel at the evidentiary hearing, and thus vacated the Order of June 13, 2000 and remanded the matter for further proceedings. Green v. United States, 216 F.3d 715 (8th Cir. 2001). Pursuant to that opinion, this Court appointed counsel for Petitioner, and again held an evidentiary hearing to address the issues of attorney conflict and failure to file an appeal. For the reasons set forth below, the Court finds that Petitioner's Motion to correct, set aside or vacate his sentence pursuant to 28 U.S.C. § 2255 must be denied.
Analysis
A petition filed pursuant to 28 U.S.C. § 2255 is not a substitute for a direct appeal. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). Collateral relief under § 2255 may be available for claims not raised on direct appeal, if: 1) such claims involve jurisdictional or constitutional issues, or involve a fundamental defect which inherently results in a complete miscarriage of justice; and 2) the Petitioner shows cause for the procedural default and resulting prejudice. Bedford v. United States, 975 F.2d 310, 313 (7th Cir. 1992). Although a nonconsitutional or nonjurisdictional claim is not subject to collateral attack if the claim could have been raised on appeal, the fact that such claims were not raised on appeal may be evidence of an independent claim of ineffective assistance of counsel. Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994). An ineffective assistance of counsel claim is a constitutional claim that may serve as a basis for Section 2255 relief. Id.
A. Ineffective assistance of counsel
Because Petitioner's claim of ineffective assistance of counsel was not raised on direct appeal, Petitioner must show cause for the procedural default and prejudice before the Court can proceed to address the claim on its merits. To satisfy the first prong of the cause and prejudice test, Petitioner must show that his counsels' performance constituted ineffective assistance of counsel under the test set out in Strickland v. Washington, 466 U.S. 668 (1984). This test requires Petitioner to show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment. Id., at 687. Additionally, Petitioner must show that the deficient performance prejudiced the defense. Id.
1. Failure to File Direct Appeal
Petitioner alleges that his claims could not be raised on appeal because his counsel failed to file an appeal despite Petitioner's request. Therefore, Petitioner concludes, he was prejudiced by counsels' inaction. As indicated above, the Court has held two evidentiary hearings on this issue. At both hearings, defense counsel and Petitioner provided testimony to the Court.
Mr. Virnig testified that he had provided legal representation to Petitioner, prior to the charges being filed in this case, on various civil and criminal matters. Shortly before the indictment in this case was handed down, Mr. Virnig was retained to provide Petitioner legal representation concerning state prostitution charges. When the federal charges were filed, Mr. Virnig provided some initial legal assistance, but Earl Gray was eventually retained to represent Petitioner in the federal case.
Consequently, Mr. Virnig and Mr. Gray were retained to provide Petitioner legal representation at or around the same time period, albeit on different cases. However, as Mr. Virnig had already established a relationship with Petitioner prior to the federal charges being filed, it appears that Petitioner would try to talk with Mr. Virnig about the federal case when the two met regarding the state case. Mr. Virnig testified that when that happened, he always referred the Petitioner to Mr. Gray. Mr. Virnig also testified that after the sentencing in the federal case, he met with Petitioner concerning the state prostitution matter. Mr. Virnig testified that it was his recollection that if Petitioner had commented to him regarding his federal sentence, he again referred him to Mr. Gray. Although Mr. Virnig was not clear as to what specific comments Petitioner made regarding his federal sentence at that meeting, he was certain that Petitioner did not ask him to file an appeal on his behalf with regard to the federal case.
Petitioner testified that he did, in fact, ask Mr. Virnig to file an appeal on his behalf. He corroborated Mr. Virnig's testimony in so far as Mr. Virnig told him he had to speak with Mr. Gray about the appeal. Petitioner further testified that he called Mr. Gray's office a number of times within the ten days after sentencing, but that Mr. Gray did not return his calls. Mr. Gray testified that he did not receive any calls from Petitioner or messages that Petitioner had called within the ten days of Petitioner's sentencing.
Whether Petitioner did in fact ask counsel to file an appeal on his behalf requires the Court to make a credibility determination. In this case, counsel testified that Petitioner did not request either of them to file an appeal, while Petitioner testified that he did. To assist the Court in assessing credibility, the Court finds it significant that Petitioner has not put forth any evidence to substantiate his claim that he called Mr. Gray's office in order to tell Mr. Gray to appeal his sentence. Telephone logs could have been obtained to show that Petitioner had called Mr. Gray's office, but Petitioner failed to present such evidence. See, eg., United States v. Kurkowski, 97-Cr.-21(01) (MJD) (August 24, 2001). Nor is there any evidence in the form of notes or letters regarding an appeal. Because Petitioner has failed to put forth any corroborating evidence, the Court finds that Petitioner's testimony in this regard is not credible.
Accordingly, the Court finds that Petitioner's claim that he requested counsel to file an appeal is without merit.
2. Failure to challenge drug quantity and to dispute that the drugs were in fact cocaine.
Petitioner argues that his counsel was ineffective because counsel failed to put the government to its burden of proving that the drugs charged were actually crack cocaine as opposed to powder cocaine. Petitioner asserts this failure prejudiced him because the lab reports do not establish that the drugs involved in the four controlled buys were crack cocaine. Petitioner asserts that he was incorrectly sentenced based on a drug quantity of over 50 grams of crack cocaine.
The government is required to prove by a preponderance of the evidence that the substance possessed was actually crack cocaine. United States v. Monroe, 978 F.2d 433 (8th Cir. 1992). Under § 2D1.1 of the Sentencing Guidelines, "Cocaine base" for sentencing purposes means "crack". "Crack" is the street name for a form of cocaine base usually prepared by processing cocaine hydrochloride and sodium bicarbonate, and usually appearing in a lumpy, rocklike form. Id. There is no requirement that cocaine base must contain sodium bicarbonate in order to qualify as crack. United States v. Stewart, 122 F.3d 625, 628 (8th Cir. 1997). It may be sufficient if lab reports describe cocaine base as "rock-like." Id.
Petitioner argues that the government description of "crack" cocaine during the plea hearing was not sufficient proof that Petitioner actually possessed crack cocaine, relying on Rice v. United States, 971 F. Supp. 1297, 1299 (D. Minn. 1997). Instead, Petitioner argues, the government must present compelling evidence beyond a mere characterization that the drugs were "crack" in light of the disparate sentencing ratio for crack cocaine versus powder cocaine.
This claim fails for a number of reasons. First, the Petitioner agreed that the substance was crack cocaine in the plea agreement, as well as in the plea colloquy. Although Petitioner claims that his tepid acknowledgment of crack cocaine possession in the plea colloquy was insufficient to establish that the substance was actually crack, the Eighth Circuit has held that admission in the plea agreement as well as in the plea colloquy is sufficient to find that it was reasonable for counsel to accept a clients' admission that the substances were crack cocaine. See Burkhalter v. United States, 203 F.3d 1096 (8th Cir. 2000). See also, Strickland, 466 U.S. at 691 ("The reasonableness of counsels actions may be determined or substantially influenced by the Defendant's own statements or actions.") In this case, counsels' actions and decisions were based upon information provided by the Petitioner. Petitioner does not claim that he challenged the characterization of the drugs at any time prior to the instant action. Furthermore, there is evidence in the record that Petitioner was familiar with crack because of his procurement of it for his girlfriend of two years on several occasions and that Petitioner had taken over his brothers' drug business after his brother was sent to prison.
Govt: And you don't dispute that it was crack cocaine do you?
Petitioner: I'm assuming that is what it were, I'm assuming that is what I bought.
Govt: That's what she asked for?
Petitioner: Right.
Govt: And that's what you asked your source for?
Petitioner: Right.
Govt: And you have no reason to dispute or doubt that that's what it was that you turned over to her?
Petitioner: Right.
Govt: And you know we got lab reports that would verify that it was crack cocaine. You are not disputing that.
Petitioner: I seen the paperwork, yeah.
Petitioner's girlfriend was also the confidential informant in this case.
Said information contained in the Affidavit of FBI agent Lasky attached to the Complaint.
Second, the lab reports and investigative reports clearly establish that Petitioner was correctly held accountable for at least 50 grams of cocaine base. The lab reports reflect that either the substance was crack, cocaine base, or was in a rock-like form, and that the quantity was in excess of 50 grams.
3. Failure to pursue additional downward departure of guideline range
Next, although Petitioner received substantial departures from the sentencing guidelines, he contends that his counsel failed to adequately convey circumstances meriting additional downward departures. Petitioner claims to be entitled to a departure based on family circumstances. Specifically, Petitioner argues under United States v. One Star, 9 F.3d 60 (8th Cir. 1993), his status as the only living parent and sole financial provider to his four children warrant departure. Under U.S.S.G. § 5H1.6, "family ties and responsibilities . . . are not ordinarily relevant" sentencing considerations. However, family ties may be a valid ground for departure in extraordinary circumstances. United States v. Goff, 20 F.3d 918,919 (8th Cir. 1994). See also, United Stated v. Vidrickson, 988 F.2d 601, 603 (8th Cir. 1993). In One Star, the court considered factors such as self defense, strong family ties, and a good employment record to depart based on extraordinary circumstances. Id., at 61.
There is nothing in this record that indicates Petitioner has extraordinary family circumstances. Even Petitioner's status as a single parent does not warrant a downward departure. United States v. Harrison, 970 F.2d 444, 447-48 (8th Cir. 1992); United States v. Johnson, 908 F.2d 396,399 (8th Cir. 1990). Because no extraordinary circumstances exist to warrant such a departure, counsel would not have prevailed in arguing for an additional departure based on family circumstances. Therefore, Petitioner cannot show that he was prejudiced by counsel's failure to raise this issue. See eg. Allen v. Nix, 55 F.3d 414,417 (8th Cir), cert. denied, 116 S.Ct. 574 (1995) (where a motion is unlikely to succeed, there is no ineffective assistance of counsel for failure to file such a motion).
Petitioner also contends eligibility for a "safety valve" adjustment for rendering substantial assistance. This Court did give Petitioner the benefits of the safety valve by not sentencing him to the mandatory minimum statute, and by decreasing his total offense level by two points. Petitioner cannot show that he would have received a further departure had counsel made the motion referenced in the petition.
4. Conflict of interest
Petitioner asserts he is entitled to relief based on his attorneys' actual conflict of interest. Petitioner argues that this claim is properly before the Court because it is based on evidence outside the record. As such, Petitioner alleges that his attorney's conflict of interest was unknown at the time he entered his guilty plea. Petitioner alleges that Mr. Virnig also represented Petitioner's crack cocaine source (hereinafter "source"). Petitioner claims that instead of facilitating cooperation between Petitioner and the FBI, Mr. Virnig alerted his other client (the source) to Petitioner's desire to cooperate with the FBI. Thus, Petitioner concludes, the source discredited Petitioner and thwarted his efforts to cooperate.
The Court heard testimony from Petitioner, counsel and the prosecutor as to this particular claim. Mr. Virnig specifically denied the allegation that he represented Petitioner's source at the same time he represented Petitioner, and further denied that Petitioner informed him of the identity of his source. Mr. Virnig also specifically denied the allegations that he was involved in any conspiracy to thwart Petitioner's ability to cooperate with the government. Mr. Gray specifically denied any knowledge whatsoever of Petitioner's source. He further testified that if the case had been tried to a jury, the defense to the charges would have been entrapment. Thus, Petitioner's source would likely not have come up in discussions with Mr. Gray, as such evidence is inconsistent with an entrapment defense. To Mr. Gray's knowledge, Petitioner never indicated a willingness to cooperate with law enforcement. Finally, the prosecutor testified that even if Petitioner had indicated that he was willing to cooperate with law enforcement, he was not interested in allowing Petitioner to cooperate based on evidence which indicated Petitioner had directed others to severely assault the informant in the case.
Any allegation of unconstitutional ineffective assistance of counsel must be demonstrated by actual conflict that adversely affected his lawyer's performance. Cuyler v. Sullivan, 446 U.S. 335,348 (1990). Unsupported allegations are insufficient. Holloway v. U.S., 960 F.2d 1348, 1358 (8th Cir. 1992) (single, self-serving, self-contradicting statement is insufficient to render the motion, files and records of the case inconclusive). Although Petitioner provided the Court his own testimony to support his allegations of conflict of interest, he failed to provide any additional evidence to substantiate his claim. Accordingly, the Court finds that Petitioner has failed to put forth sufficient evidence to support a finding of an actual conflict of interest.
IT IS HEREBY ORDERED that the Petition filed pursuant to 28 U.S.C. § 2255 [Docket No. 57] is DISMISSED WITH PREJUDICE.