Ward v. United States of America

Filing 10

MEMORANDUM OPINION - The court WILL DENY Mr. Ward's § 2255 motion. The court WILL DENY Mr. Ward a certificate of appealability. The court will enter a separate final order consistent with this opinion. Signed by Judge Annemarie Carney Axon on 10/14/2020. (KEK)

FILED
2020 Oct-14 PM 03:20
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION

RAJARES DEVON WARD,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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Case No.: 2:20-08010-ACA

MEMORANDUM OPINION
On March 20, 2020, Movant Rajares Devon Ward filed a 28 U.S.C. § 2255
motion to vacate sentence, asserting that he received ineffective assistance of
counsel in connection with his guilty plea. (Doc. 1). The court WILL DENY the
§ 2255 motion because Mr. Ward cannot establish that counsel performed
deficiently or that any deficient performance prejudiced him. In addition, the court
WILL DENY a certificate of appealability.
I.

BACKGROUND
In August 2018, a grand jury indicted Mr. Ward on charges of possessing with

intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1) (“Count One”);
using or carrying a firearm in connection with a drug trafficking offense, in violation
of 18 U.S.C. § 924(c)(1)(A)(i) (“Count Two”); and being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1) (“Count Three”). United States v.

Ward, case no. 2:18-cr-00405-ACA-JEO-1, Doc. 1 (N.D. Ala. Aug. 29, 2018).
Mr. Ward pleaded guilty to all counts pursuant to a plea agreement. Id., Doc. 15
(N.D. Ala. Oct. 29, 2018), Doc. 22 (N.D. Ala. Apr. 13, 2020). In exchange for
Mr. Ward’s guilty plea, the government agreed to recommend a reduction to his
offense level for acceptance of responsibility, and to recommend a sentence at the
bottom of the advisory guidelines range. Id., Doc. 15 at 6.
At the change of plea hearing, the court described the charges and the elements
of each charge, and confirmed with Mr. Ward that he understood what the
government would be required to prove if he went to trial. Ward, case no. 2:18-cr00405-ACA-JEO-1, Doc. 22 at 9–12. Mr. Ward stipulated to the factual basis
described in his plea agreement. Id. at 13. The factual basis provided that Hueytown
Police Department officers conducting a vehicle safety checkpoint smelled
marijuana coming from Mr. Ward’s car and found several bags of varying amounts
of marijuana and a digital scale. Ward, case no. 2:18-cr-00405-ACA-JEO-1, Doc.
15 at 3–4. A pat down of Mr. Ward revealed a loaded handgun that Mr. Ward said
he had bought off the street. Id. at 4. The firearm had been made in Turkey. Id. at
5. At booking, officers found $1,568 in cash on Mr. Ward, who told them that he
was unemployed. Id. at 4–5. Mr. Ward had previously been convicted of felony
possession of marijuana. Id. at 5.

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At the change of plea hearing, Mr. Ward confirmed that he had signed the plea
agreement’s description of the factual basis. Ward, case no. 2:18-cr-00405-ACAJEO-1, Doc. 22 at 14. After conducting the plea colloquy, the court found that
Mr. Ward’s decision to plead guilty was knowing, voluntary, and supported by the
factual basis. Id. at 18–19. The court therefore accepted his guilty plea. Id. at 17–
19.
Mr. Ward faced a maximum sentence of five years for Count One, see 21
U.S.C. § 841(b)(1)(D), a range of five years to life for Count Two, which had to run
consecutive to the sentence for Count One, see 18 U.S.C. § 924(c)(1)(A)(i), and a
maximum sentence of ten years for Count Three, see 18 U.S.C. § 924(a)(2); see also
Ward, case no. 2:18-cr-00405-ACA-JEO-1, Doc. 15 at 2, Doc. 18 at 1–2 (sealed).
The advisory guidelines range was 27 to 34 months’ imprisonment, to be followed
by the mandatory consecutive sentence for Count Two. Id., Doc. 18 at 17 (sealed).
Consistent with the recommendation made in the plea agreement, the court
sentenced Mr. Ward to the low end of the guidelines range—concurrent 27-month
sentences for Counts One and Three, and a consecutive 60-month sentence for Count
Two, for a total sentence of 87 months. Ward, case no. 2:18-cr-00405-ACA-JEO1, Doc. 20 (N.D. Ala. Apr. 26, 2019). Mr. Ward did not appeal.

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II.

DISCUSSION
In his § 2255 motion, Mr. Ward asserts that he received ineffective assistance

of counsel in connection with his guilty plea because counsel did not adequately
advise him that (1) the government lacked sufficient evidence to sustain a conviction
and (2) Alabama state drug and gun laws preempt federal gun and drug laws. (Doc.
1 at 4–5).
To prevail on an ineffective assistance of counsel claim, a movant must
establish both that his counsel’s performance was deficient and that the deficient
performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687
(1984). A movant can demonstrate deficient performance only if his counsel’s
representation “fell below an objective standard of reasonableness.” Id. at 688. To
establish prejudice in the context of a guilty plea, a movant must demonstrate that
“there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S.
52, 59 (1985).
Mr. Ward cannot establish either prong of the Strickland test. First, neither
the record nor Mr. Ward’s allegations, taken as true, show any deficiency on
counsel’s part. Mr. Ward’s contention that counsel performed deficiently arises
from his belief that he faced state drug and firearm offenses, which were removed
to federal court under 28 U.S.C. § 1455(a), and that there was insufficient evidence

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to support those state charges. (Doc. 1 at 5; Doc. 9 at 4–8). But Mr. Ward’s belief
is wrong. The record establishes that a federal grand jury indicted him on the federal
charges at issue in this case, and Mr. Ward pleaded guilty to those federal offenses.
See Ward, case no. 2:18-cr-00405-ACA-JEO-1, Docs. 1, 15, 20, 22. Moreover, as
the court found at the change of plea hearing, the facts that Mr. Ward stipulated to
in the plea agreement are sufficient to establish every element of the federal offenses
to which he pleaded guilty. See Ward, Doc. 15 at 3–5; id., Doc. 22 at 13–14, 18–19.
Whether the State could prove that Mr. Ward violated state law based on the same
conduct is irrelevant. Mr. Ward cannot establish deficient performance based on
counsel’s failure to advise Mr. Ward about the evidence required to prove state law
drug and gun charges that were not at issue in his federal criminal case.
Mr. Ward also argues that counsel should have advised him that, under 21
U.S.C. § 903 and 18 U.S.C. § 927, Alabama drug and gun law preempts federal law.
(Doc. 1 at 5). But § 903 and § 927 do not allow state law to preempt federal law; to
the contrary, those sections provide only that the Controlled Substances Act and the
Federal Gun Control Act do not preempt state criminal law unless the federal and
state law conflict in such a way that “the two cannot consistently stand together.”
21 U.S.C. § 903, see 18 U.S.C. § 927 (using slightly different language). Counsel
cannot perform deficiently by failing to advise Mr. Ward that § 903 and § 927 permit
state gun and drug laws to preempt federal gun and drug laws. Cf. Denson v. United

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States, 804 F.3d 1339, 1342 (11th Cir. 2015) (“Failing to make a meritless objection
does not constitute deficient performance.”).
Even if counsel did perform deficiently, Mr. Ward cannot establish that any
deficiency prejudiced him. A movant alleging ineffective assistance in connection
with his decision to plead guilty cannot rely on conclusory allegations to establish
prejudice. See Hill, 474 at 60. Here, Mr. Ward has not made even a conclusory
allegation of prejudice: he has not alleged that, had counsel given him different
advice, he would have rejected the plea agreement, pleaded not guilty, and
proceeded to trial. See Hill, 474 U.S. at 59.
But even if he had stated that he would have rejected the plea agreement and
proceeded to trial, Mr. Ward would have to “convince the court that a decision to
reject the plea bargain would have been rational under the circumstances.” Padilla
v. Kentucky, 559 U.S. 356, 372 (2010); see also Diveroli v. United States, 803 F.3d
1258, 1265 (11th Cir. 2015). He has not done so. Mr. Ward faced a potential life
sentence, and the plea agreement bound the government to recommend that he
receive an acceptance of responsibility reduction to his offense level and a sentence
at the bottom of the advisory guidelines range. Ward, case no. 2:18-cr-00405-ACAJEO-1, Doc. 15 at 6. Mr. Ward has not challenged any of the facts to which he
stipulated, which, as the court has stated, clearly suffice to establish his guilt on all
charges. He has presented no defenses that he could have asserted at trial. In short,

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he has not alleged any facts that would show a rational basis to reject the plea
bargain. He therefore cannot establish prejudice from his attorney’s purportedly
deficient advice. See Diveroli, 803 F.3d at 1265.
Because Mr. Ward has not alleged facts that would establish either deficient
performance or prejudice, he is not entitled to relief under § 2255. The court WILL
DENY his § 2255 motion. Rule 11 of the Rules Governing § 2255 Cases requires
the court to “issue or deny a certificate of appealability when it enters a final order
adverse to the applicant.” Rule 11(a), Rules Governing § 2255 Cases. The court
may issue a certificate of appealability “only if the applicant has a made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make
such a showing, a movant “must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong,” or that
“the issues presented were adequate to deserve encouragement to proceed further.”
Miller-El v. Cockrell, 537 U.S. 322, 336, 338 (2003) (quotation marks omitted).
This court finds that Mr. Ward’s claims do not satisfy either standard. The court
WILL DENY a certificate of appealability.
III.

CONCLUSION

The court WILL DENY Mr. Ward’s § 2255 motion.

The court WILL

DENY Mr. Ward a certificate of appealability.
The court will enter a separate final order consistent with this opinion.

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DONE and ORDERED this October 14, 2020.

_________________________________
ANNEMARIE CARNEY AXON
UNITED STATES DISTRICT JUDGE

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