Toney v. United States of America

Filing 9

MEMORANDUM OPINION. Signed by Judge R David Proctor on 8/26/2020. (KAM)

FILED
2020 Aug-26 PM 04:47
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION

DEMARCUS ANTWAN TONEY
Petitioner,
v.
UNITED STATES OF AMERICA

Respondent.

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5:18-CV-08000-RDP
(No. 5:15-CR-274-RDP-HGD-16)

MEMORANDUM OPINION
Demarcus Antwan Toney (“Petitioner”) is currently in the custody of the Bureau of Prisons
serving a 180-month prison sentence imposed after he pled guilty pursuant to a plea agreement to
two felony counts. (Doc. # 1). Petitioner moves pursuant to 28 U.S.C. § 2255 to vacate, set aside,
or correct his federal sentence. (Id.). After careful review, and for the reasons explained below, the
court concludes that Petitioner’s Motion is due to be denied.
I.

Background
In January 2017, Petitioner was sentenced to 180 months in prison following a guilty plea

on two felony counts: (1) Conspiracy to distribute and possess with intent to distribute a mixture
and substance containing a detectable amount of cocaine hydrochloride, a controlled substance, in
violation of 21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B) (Count One) (Docs. # 1, 5, 7); and (2)
possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. §
924(c) (Count Thirty-Two). Id. Petitioner pled guilty to both counts.
As directed by 21 U.S.C. § 851(a), the government submitted an Information in 2015
detailing the state convictions supporting a sentence enhancement under § 841(b)(1)(B). (Doc. #

26 in United States v. Toney, 5:15-cr-00274-RDP-HNJ-16). The first conviction, criminal case
number CC07-3251 in the Circuit Court of Madison County, was for felony possession of cocaine,
and Petitioner was sentenced to three years custody (suspended) in 2007. (Cr. Doc. # 681 at 27);
see Ala. Code § 13A-12-212. The second conviction, criminal case number CC07-4805 in the
Circuit Court of Madison County, was also a felony possession of cocaine conviction, and
Petitioner was also sentenced to three years custody (suspended) in 2007. (Cr. Doc. # 681 at 29);
see Ala. Code § 13A-12-212. Based on the government’s § 851 Information, the court determined
that Petitioner qualified for an enhanced sentence for Count One under § 841(b)(1)(b), which
requires a minimum sentence of 120 months if the defendant has “a prior conviction of a felony
drug offense.” 21 U.S.C. § 841(b)(1)(B). Petitioner was sentenced to 120 months as to Count One,
plus sixty months as to Count Thirty-Two, to be served separately and consecutively, for a total of
180 months. (Cr. Doc. # 683).
On January 24, 2018, Petitioner filed this Motion under 28 U.S.C. § 2255, claiming
ineffective assistance of counsel. (Doc. # 1). Petitioner alleges that his counsel was ineffective
under the two-part Strickland test because counsel failed to “investigate and challenge the
government’s pursuing an enhanced sentence pursuant to [21] U.S.C. § 851.” (Doc. # 5 at 3).1
After review, the court concludes that Petitioner is not entitled to relief because (1) his
challenge to the validity of his prior convictions is barred by the five-year limitation imposed by
21 U.S.C § 851(e), and (2) in any event, Petitioner’s underlying state drug convictions were
properly applied to enhance his sentence. Thus, Petitioner cannot satisfy the two-part Strickland
test.

1
Petitioner listed 28 U.S.C. § 851 as the basis for the enhanced sentence. (See Doc. # 1 at 5). The court
believes the statute to which he was referring is 21 U.S.C. § 851. Petitioner also referenced § 841(a)(2), but the
government has not charged him with violation of this statute. Rather, Petitioner was charged under §§ 841(a)(1),
(b)(1)(B).

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II.

Standard of Review
Section 2255 authorizes a federal prisoner to move the court of conviction to vacate, set

aside, or correct his sentence on the ground that the sentence was imposed in violation of the
constitution or laws of the United States. 28 U.S.C. § 2255(a). Such a motion is subject to
heightened pleading requirements which mandate that the motion must specify all the grounds of
relief and state the facts supporting each ground. See Rules 2(b)(1) & (2), Rules Governing § 2255
Proceedings; see also McFarland v. Scott, 512 U.S. 849, 856 (1994). A § 2255 petitioner is not
entitled to a hearing or post-conviction relief when his claims fail to state a cognizable claim or
amount to only conclusory allegations unsupported by specifics or contentions that in the face of
the record are wholly incredible. See Lynn v. United States, 365 F. 3d 1225, 1239 (11th Cir. 2004);
Caderno v. United States, 256 F. 3d 1213, 1217 (11th Cir. 2001).
III.

Discussion
The Supreme Court has held that “the two-part Strickland v. Washington test applies to

challenges to guilty pleas based on ineffective assistance of counsel.” Holmes v. United States,
876 F.2d 1545, 1551 (11th Cir. 1989) (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)). This twopart test asks: (1) whether the defendant can show that “counsel’s representation fell below an
objective standard of reasonableness”; and (2) whether the defendant can establish prejudice by
showing “that there is reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Lockhart, 474 U.S. at 57 (citing Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984)). And where, as here, “a defendant is represented
by counsel during the plea process and enters his plea upon the advice of counsel, the voluntariness
of the plea depends on whether counsel’s advice ‘was within the range of competence demanded
of attorneys in criminal cases.’” Id. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771

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(1970)). To be sure, “[s]crutiny of counsel’s performance is ‘highly deferential,’ and the court
indulges a ‘strong presumption’ that counsel’s performance was reasonable.” Reese v. United
States, 2018 WL 6495085, *3 (M.D. Ala. Nov. 15, 2018) (quotation omitted). Counsel is “not
ineffective for failing to raise a nonmeritorious claim.” Chandler v. Moore, 240 F.3d 907, 917
(11th Cir. 2001).
1.

Petitioner was not denied effective assistance of counsel because he could not
have challenged the validity of the state felony drug convictions used to
enhance his sentence.

Under § 851(e), a petitioner cannot challenge a state conviction as a basis for a federal
sentencing enhancement if that state conviction is more than five years old at the time the
government’s Information is filed. St. Preux v. United States, 539 F. App’x 946, 947 (11th Cir.
2013). Further, “even if [the sentencing court] had not done all that it was required” to do by §
851(b), a petitioner cannot challenge the validity of convictions used for enhancing a sentence
under this section. United States v. Weaver, 905 F.2d 1466, 1482 (11th Cir. 1990); see United
States v. DiFalco, 837 F.3d 1207, 1224 (11th Cir. 2016) (citation omitted).
Petitioner’s counsel did not act unreasonably because Petitioner’s previous convictions
were over five years old at the time the government filed its Information. Preux, 539 F. App’x at
947; see Munayco v. United States, 2019 WL 2285470 (11th Cir. 2019). Further, even if the trial
court had not strictly adhered to the § 851(b) inquiry, Petitioner’s challenge would still be barred
by § 851(e). For that reason, advancing this argument would have been (and still is)
nonmeritorious. Therefore, Petitioner’s counsel was not ineffective for failing to challenge the
validity of Petitioner’s prior convictions.

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2.

Petitioner was not denied effective assistance of counsel because his state
felony drug convictions qualified for sentence enhancement.

Petitioner cites Mathis v. United States, 136 S. Ct. 2243 (2016), among other cases, in
support of his contention that his underlying conviction for felony possession of a controlled
substance under Alabama Code § 13A-12-212 was overly broad, and therefore not valid for the
purposes of a sentencing enhancement. (Doc. # 5). Mathis decided the question of whether an Iowa
burglary statute met the definition of a “violent felony” under the Armed Career Criminal Act
(“ACCA”). Mathis, 136 S. Ct. at 2252-57; 18 U.S.C. § 924(e). But that decision says nothing about
prior convictions for sentence-enhancing drug felonies, which is what is at issue in this case.
Similarly, Petitioner cites United States v. Descamps, which involved the ACCA, and is
inapplicable. See, 570 U.S. 254 (2013); Reese, 2018 WL 6495085, at *5 (“Descamps does not
apply to determine the usability of a prior drug conviction for enhancement under §
841(b)(1)(B).”). Further, Petitioner’s argument that United States v. Hinkle, 832 F.3d 569 (5th Cir.
2016 and United States v. Tanskley, 848 F.3d 347, 350 (5th Cir.), supplemented, 854 F.3d 284 (5th
Cir. 2017) control is also misplaced because those cases involved sentence enhancement under
U.S.S.G. § 4B1.1(b), not § 841(b)(1)(B).2
To be sure, the Eleventh Circuit has held that a violation of Alabama Code § 13A-12-212
for drug possession qualifies as a felony drug offense for sentence enhancement. United States v.
Garrett, 292 F. App’x 3, 7 (11th Cir. 2008). Specifically, under § 841(b)(1)(B) and at the time
Petitioner was sentenced, an enhanced sentence is appropriate following a prior conviction for a
“serious drug offense,” defined as “an offense that is punishable by imprisonment for more than
one year under any law of the United States or of a State…that prohibits or restricts conduct

2

In fact, in this case, the sentence suggested by the guidelines at issue in Hinkle and Tanksley is less than the
mandatory minimum imposed by § 841(b)(1)(B) that is at issue here. (See Cr. Doc. # 681).

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relating to narcotic drugs.”3 18 U.S.C. § 802(44) (2012) (prior to the 2018 amendment). Here, the
Petitioner’s sentence was enhanced based on two prior state convictions for violating Alabama
Code § 13A-12-212 for felony possession of cocaine, a narcotic. See 21 U.S.C § 802(17)(D).
Violations of that Alabama statute carry a sentence of not less than one year and one day. Ala.
Code § 13A-12-212; see Garrett, 292 F. App’x at 7. Petitioner received a sentence of three years
in custody (suspended). Thus, the court properly enhanced Petitioner’s sentence.
Because the court properly sentenced Petitioner, it was not objectively unreasonable for
Petitioner’s counsel to not advance a nonmeritorious claim and challenge his prior convictions or
the court’s use in enhancing his sentence. Nor was Petitioner in any way prejudiced by counsel’s
performance.
IV.

Conclusion
Because Petitioner is unable to satisfy either element of the two-pronged Strickland test,

this Motion (Doc. # 1) is due to be denied. An Order consistent with this Memorandum Opinion
will be entered.
DONE and ORDERED this August 26, 2020.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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The First Step Act does not apply in this case because Petitioner was sentenced before the Act was enacted.
FIRST STEP ACT OF 2018, PL 115-391, December 21, 2018, 132 Stat. 5194, 5221; United States v. Pubien, 805 F.
App’x 727, 730 (11th Cir. 2020).

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