James v. USA
Filing
26
ORDER denying certificate of appealability; denying leave to appeal in forma pauperis; denying 1 --motion to vacate/set aside/correct sentence (2255); directing the clerk to enter judgment against James and CLOSE the case. Signed by Judge Steven D. Merryday on 5/8/2017. (SKB)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
UNITED STATES OF AMERICA
v.
CASE NO. 8:12-cv-2266-T-23TBM
8:09-cr-89-T-23TBM
SAMUEL THAMAR JAMES
/
ORDER
Samuel Thamar James moves (Doc. 1) under 28 U.S.C. § 2255 to vacate his
sentence. James challenges the validity of his conviction for possession with intent
to distribute less than five grams of cocaine base. James serves 262 months of
imprisonment. The United States admits that James timely moved to vacate.
(Doc. 12 at 3) Also, James moves to supplement the motion. (Docs. 4, 23, and 24)
FACTS
On February 9, 2009, a Tampa police officer attempted to stop a vehicle for
illegal window tint.1 The officer witnessed the driver, a man with medium-length
dreadlocks and a black shirt, drop a plastic bag containing a white substance in a
driveway. A test revealed that the plastic bag contained 5.8 grams of cocaine base.
1
This summary of the facts derives from the presentence investigation report and from the
circuit court’s decision on direct appeal. (Doc. 70 in 09-cr-89)
After the vehicle stopped, the officer saw the driver crawl from the driver’s seat
to the backseat. The officer approached the vehicle and observed two passengers,
each with short hair and a white shirt. The officer identified James, based on his
dreadlocks and black shirt, as both the driver and the person who dropped the plastic
bag.
PROCEDURAL HISTORY
Count I of the indictment charged James with possession with intent to
distribute five grams or more of a mixture and substance containing cocaine base
under 21 U.S.C. §§ 841(a)(1) and (b)(1)(B)(iii). (Doc. 1 in 09-cr-89) In 2009 a jury
convicted James of the lesser offense of possession with intent to distribute less than
five grams of cocaine base under 21 U.S.C. § 841(b)(1)(C). Offense Level 34 and
Criminal History Category VI yielded an advisory guidelines range of 262 to 327
months of imprisonment. The circuit court affirmed James’s sentence of 262 months
of imprisonment.2 United States v. James, 642 F.3d 1333 (11th Cir. 2011), cert. denied,
565 U.S. 958 (2011).
INEFFECTIVE ASSISTANCE OF COUNSEL
James claims ineffective assistance of counsel, a difficult claim to sustain.
“[T]he cases in which habeas petitioners can properly prevail on the ground of
ineffective assistance of counsel are few and far between.” Waters v. Thomas,
2
The circuit court remanded in part for the limited purpose of correcting a clerical error in
the written judgment.
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46 F.3d 1506, 511 (11th Cir. 1995) (en banc) (quoting Rogers v. Zant, 13 F.3d 384, 386
(11th Cir. 1994)). As Sims v. Singletary, 155 F.3d 1297, 1305 (11th Cir. 1998),
explains, Strickland v. Washington, 466 U.S. 668 (1984), governs an ineffective
assistance of counsel claim:
The law regarding ineffective assistance of counsel claims is
well settled and well documented. In Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the
Supreme Court set forth a two-part test for analyzing ineffective
assistance of counsel claims. According to Strickland, first, the
defendant must show that counsel’s performance was deficient.
This requires showing that counsel made errors so serious that
counsel was not functioning as the “counsel” guaranteed the
defendant by the Sixth Amendment. Second, the defendant
must show that the deficient performance prejudiced the
defense. This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial whose
result is reliable. Strickland, 466 U.S. at 687, 104 S. Ct. 2052.
Strickland requires proof of both deficient performance and consequent
prejudice. Strickland, 466 U.S. at 697 (“There is no reason for a court deciding an
ineffective assistance claim . . . to address both components of the inquiry if the
defendant makes an insufficient showing on one.”); Sims, 155 F.3d at 1305 (“When
applying Strickland, we are free to dispose of ineffectiveness claims on either of its
two grounds.”). “[C]ounsel is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable
professional judgment.” Strickland, 466 U.S. at 690. “[A] court deciding an actual
ineffectiveness claim must judge the reasonableness of counsel’s challenged conduct
on the facts of the particular case, viewed as of the time of counsel’s conduct.”
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Strickland, 466 U.S. at 690. Strickland requires that “in light of all the circumstances,
the identified acts or omissions were outside the wide range of professionally
competent assistance.” 466 U.S. at 690.
James must demonstrate that counsel’s alleged error prejudiced the defense
because “[a]n 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.” Strickland, 466 U.S. at 691–92. To meet this burden, James must show
“a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
Strickland cautions that “strategic choices made after thorough investigation of
law and facts relevant to plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are reasonable precisely to the
extent that reasonable professional judgments support the limitations on
investigation.” 466 U.S. at 690–91. James cannot meet his burden by showing only
that the avenue chosen by counsel proved unsuccessful.
The test has nothing to do with what the best lawyers would
have done. Nor is the test even what most good lawyers would
have done. We ask only whether some reasonable lawyer at the
trial could have acted, in the circumstances, as defense counsel
acted at trial . . . . We are not interested in grading lawyers’
performances; we are interested in whether the adversarial
process at trial, in fact, worked adequately.
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White v. Singletary, 972 F.2d 1218, 1220–21 (11th Cir. 1992); accord Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (“To state the obvious: the trial lawyers,
in every case, could have done something more or something different. So,
omissions are inevitable . . . . [T]he issue is not what is possible or ‘what is prudent
or appropriate, but only what is constitutionally compelled.’”) (en banc) (quoting
Burger v. Kemp, 483 U.S. 776, 794 (1987)); Jones v. Barnes, 463 U.S. 745, 751 (1983)
(holding that counsel has no duty to raise a non-frivolous claim).
Ground One
Counsel purportedly advised James that the right to testify required James to
first cooperate with the United States. (Doc. 1 at 12) James alleges that, but for
counsel’s advice, James would have testified that he owned the illicit drugs for
personal use. James asserts that the exculpatory testimony would have changed the
trial’s outcome.
A criminal defendant possesses a fundamental constitutional right to testify at
trial. Rock v. Arkansas, 483 U.S. 44, 51–53 (1987). “Defense counsel bears the
primary responsibility for advising the defendant of his right to testify or not to
testify, the strategic implications of each choice, and that it is ultimately for the
defendant himself to decide.” United States v. Teague, 953 F.2d 1525, 1533
(11th Cir. 1992).
Even if counsel performed deficiently, the following colloquy ensured that
James understood fully the right to testify:
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THE COURT: At this stage in a criminal case, almost always
the defendant has to consider a very important decision, and
that is the decision of whether or not that witness will testify.
That is not my decision to make by any means.
THE DEFENDANT: Yes, Sir.
THE COURT: But I wanted to discuss some things about that
decision with you to make sure that you understand how the
law regards that circumstance. Okay?
THE DEFENDANT. Yes, Sir.
THE COURT: First of all, under our system of constitutional
law, it is your right to either testify if you choose to do so, or not
testify if you choose not to. In other words, you have a right to
do either. You, of course, can’t do both but you can do either.
In ordinary, plain language that is your personal right and your
personal decision.
Now, I understand that you have, perhaps, friends and family
with whom you have discussed your present circumstances and,
of course, are always well advised to seek advice. You have
two counsel with you who are familiar with the operation of the
court system and familiar with the charges against you and the
facts of the case and the rights that you have. But all of those
people, including your attorneys, are just advisers for you, and
it is not their decision whether you testify. It’s yours.
So, for example, if Mrs. Dyer says “I don’t think you should
testify,” I think you should give her view and that of Mr. Hued
very careful consideration. Their knowledge of the
circumstances here is much greater than yours. But if you
ultimately decide, that’s your decision, that’s the way it will be.
Now, do you understand that?
THE DEFENDANT: Yes, sir.
(Doc. 62 at 116–17 in 09-cr-89)
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Further colloquy advised James about the burden of proof and about the
potential benefits and risks of testifying. (Doc. 62 at 117–19 in 09-cr-89) James
confirmed that he understood the right to testify:
THE COURT: Do you feel comfortable that you understand
what your rights are?
THE DEFENDANT: Yes, Sir.
THE COURT: Is there any question that you want to ask me
about what I have said?
THE DEFENDANT: No, Sir.
(Doc. 62 at 119–20 in 09-cr-89)
The colloquy shows that James understood that he could testify regardless of
whether he cooperated with the United States. James’s failure to establish prejudice
precludes relief on this ground of ineffective assistance of counsel.
Even if James testified that he owned the illicit drugs for personal use, James
fails to show a reasonable probability that a jury would have acquitted him. Because
James offers no facts showing personal use and no facts to counter the intent to
distribute the illicit drugs, James’s claim warrants denial.
Ground Two
The Sixth Amendment right to trial by jury guarantees “the presence of a fair
cross-section of the community on the venire panel, or lists from which grand and
petit juries are drawn.” United States v. Henderson, 409 F.3d 1293, 1305
(11th Cir. 2005). Convicted by an all-white jury, James alleges that counsel
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performed deficiently by failing to challenge the purportedly unlawful venire and by
failing to move to dismiss the indictment. (Doc. 1 at 16) But a successful challenge
to the venire requires showing that the systematic exclusion of a distinctive group
from the jury selection process yielded an unfair and unreasonable
under-representation of a distinctive group on the venire. Duren v. Missouri,
439 U.S. 357, 364 (1979). Proffering no facts to show the systematic exclusion of
African-Americans from the jury selection process, James cannot establish a
violation of the Sixth Amendment.3 And the Middle District of Florida’s Plan for
the Qualification and Selection of Grand and Petit Jurors, approved by a reviewing
panel of the circuit court, complies with the Jury Selection and Service Act of 1968.
United States v. Pritt, 458 Fed. App'x 795, 799 (11th Cir. 2012). Because counsel has
no duty to raise an unsubstantiated claim, James’s ineffective assistance of counsel
claim fails.
Even assuming deficient performance, James demonstrates no prejudice from
counsel’s failure to object to the venire. Convicted on a lesser charge of possession
with intent to distribute less than five grams of cocaine base, James presents no facts
showing a reasonable probability that a jury with a different racial composition
would either acquit on the present charge or convict on a lesser offense. See Jackson v.
3
James moved (Doc. 78 in 09-cr-89) successfully for leave to inspect the jury selection
records. The order granting James’s motion stated that copies of the jury selection records “will be
sent to James upon payment of six dollars to the clerk.” (Doc. 80 at 3 in 09-cr-89) The criminal
docket shows that James never paid for the jury selection records. James’s redundant request (Doc.
20 at 7) to inspect the jury statistics is denied as moot.
-8-
Herring, 42 F.3d 1350, 1362 (11th Cir. 1995). The police officer’s testimony and the
discovery of illicit drugs on the driveway compellingly evidence that James
committed the drug crime. James’s failure to satisfy Strickland’s requirements
precludes relief on this claim of ineffective assistance of counsel.
Ground Three
James re-litigates in this collateral attack whether the inquiry at sentencing
about his convictions complies with 21 U.S.C. § 851(b). (Doc. 1 at 17) On direct
appeal, the circuit court upheld James’s sentence because, under United States v.
Weaver, 905 F.2d 1466 (11th Cir. 1990), the inquiry at sentencing substantially
complied with Section 851(b). James, 642 F.3d at 1341. James repeats this claim
under the guise of ineffective assistance of appellate counsel. See United States v.
Nyhuis, 211 F.3d 1340, 1343 (11th Cir. 2000) (“The district court is not required to
reconsider claims of error that were raised and disposed of on direct appeal.”).
James alleges that he directed appellate counsel to argue that
Carachuri-Rosendo v. Holder, 560 U.S. 563 (2010), both overturns Weaver and mandates
a strict Section 851(b) inquiry at sentencing. (Doc. 1 at 17) James asserts that, but
for appellate counsel’s failure to follow James’s strategy, the circuit court would have
vacated the sentence. Advancing a meritless argument based on Carachuri-Rosendo,
which neither overrules Weaver nor mandates a strict Section 851(b) inquiry at
sentencing, James cannot show ineffective assistance. See Chandler, 240 F.3d at 917.
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Also, James alleges that trial counsel performed deficiently by failing to file a
Section 851(c) written response contesting James’s convictions. (Doc. 1 at 17;
Doc. 20 at 10) At the sentencing hearing, counsel affirmed the convictions because
James “has not back-peddled from his admissions in the PSR, those stand and
remain part of the PSR. He has admitted to that.” (Doc. 66 at 27 in 09-cr-89)
Counsel argued unsuccessfully that a below-guidelines sentence of ten years of
imprisonment “would absolutely work as a deterrent.” (Doc. 66 at 20 in 09-cr-89)
Counsel’s strategy falls within the wide range of professionally competent assistance.
Strickland, 466 U.S. at 690–91. James cannot meet his burden by showing that the
avenue chosen by counsel proved unsuccessful.
Ground Four
In response to James’s discovery letter, the United States offered to prepare a
plea agreement “[i]f Mr. James desires to plea and cooperate.” (Doc. 12-2 at 3)
According to James, the United States proposed a plea that contemplated a
recommendation for a sentence of thirty-five years. (Doc. 1 at 21) James alleges that
he directed counsel to counter-offer with a conditional plea that contemplated a
recommendation of fifteen years. (Doc. 1 at 21) James asserts that, but for counsel’s
deficient performance, James would have pleaded guilty, and he would have received
a lesser sentence.
But the United States denies proposing a plea. (Doc. 12 at 13) The United
States argues that “James has provided no letters, memos, documentation of calls or
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visits in which he discussed any plea matters with counsel.” (Doc. 12 at 14) In his
reply, James offers no rebuttal. (Doc. 20) Whether to offer a plea agreement and
whether to include a certain term in that agreement are each a matter of prosecutorial
discretion. See Weatherford v. Bursey, 429 U.S. 545, 561 (1977) (“[T]here is no
constitutional right to plea bargain; the prosecutor need not do so if he prefers to go
to trial.”). “[T]he successful negotiation of a plea agreement involves factors beyond
the control of counsel, including . . . the cooperation of the prosecutor, who has no
obligation to offer such an agreement.” United States v. Hall, 212 F.3d 1016, 1022
(7th Cir. 2000).
James speculates that the purported counter-offer would have resulted in a
successful plea negotiation and a subsequent recommendation of fifteen years. James
offers no facts evidencing that the prosecutor would have exercised discretion and
offered a conditional plea. See Tejada v. Dugger, 941 F.2d 1551, 1559 (11th Cir. 1991)
(holding that vague, conclusory, or unsupported allegations cannot support an
ineffective assistance of counsel claim). James’s speculative allegation that counsel
would have obtained a favorable conditional plea agreement fails to establish
deficient performance.
James fails to show a reasonable probability that, even if the United States
offered a conditional plea, he would have received a lesser sentence. James alleges
that, because counsel failed to negotiate a conditional plea, the sentencing lacked
both the United States’ recommendation of a sentence than fifteen years and a
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three-level downward adjustment for acceptance of responsibility. (Doc. 1 at 21) But
the United States asserts that James would have pleaded guilty to the charge in the
indictment of possession with intent to distribute five grams or more of cocaine base,
a charge which yields the same guidelines range of 262 to 327 months of
imprisonment.4 (Doc. 12 at 14) And the United States’ recommendation of a
sentence of fifteen years would not guarantee receiving a particular sentence.
Rule 11(c), Fed. R.Crim. Pro. See Smith v. United States, 670 F.2d 145, 147
(11th Cir. 1982). James offers no rebuttal. (Doc. 20) Convicted for the lesser offense
of possession with intent to distribute less than five grams (21 U.S.C. §841(b)(1)(C))
and sentenced to the lowest in the same guidelines range (262 to 327 months), James
fails to show prejudice.
Ground Five
James alleges that trial counsel performed ineffectively by failing to investigate
a passenger in the vehicle, Oliver Hodges, and by failing to call Hodges as a witness
at trial. (Doc. 1 at 22) James abandons this argument by concurring with the United
States’ response to Ground Five. (Doc. 20 at 13)
4
With the Section 851 enhancement and a three-level downward adjustment for acceptance
of responsibility for the charge in the indictment, James's Offense Level 34 and Criminal History
Category VI yields an advisory guidelines range of 262 to 327 months of imprisonment. (Doc. 12
at 14)
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Ground Six
James alleges that the conviction under 21 U.S.C. § 841, part of the Controlled
Substances Act, violates the commerce clause. (Doc. 1 at 23) The Supreme Court
soundly rejects James’s claim because the Controlled Substances Act criminalizes
both intrastate and interstate illegal drug distribution activities without offending the
constitution. See Gonzales v. Raich, 545 U.S. 1, 15–23 (2005). Again, James cannot
show counsel’s ineffective assistance based on a meritless argument. See Chandler,
240 F.3d at 917.
First Motion to Supplement
The Anti-Terrorism and Effective Death Penalty Act, 28 U.S.C. § 2255(f),
created a limitation for a motion to vacate. On August 9, 2013, nearly a year after
the expiration of the one-year limitation in Section 2255(f), James moved to add a
new claim to the motion to vacate. (Doc. 4) James alleges that a penalty under
21 U.S.C. § 841(b)(1)(C) requires the possession of at least five grams of cocaine
base. Because James possessed less than five grams of cocaine base, James asserts
that “the proper sentencing statute is simple possession under 21 U.S.C. § 844.”
(Doc. 4 at 2)
James alleges that he recently discovered the purported “violation.” (Doc. 4
at 3) The United States asserts dismissal of the claim as time-barred. (Doc. 12 at 18)
And James presents no cogent argument of entitlement to a new limitation under
Section 2255(f)(4), which states that the limitation begins on “the date on which the
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facts supporting the claim or claims presented could have been discovered through
the exercise of due diligence.” Even assuming a timely supplement, James’s claim
fails.
James misunderstands that possession with intent to distribute a detectable
amount of cocaine base suffices for a sentence under Section 841(b)(1)(C). Because
the jury found that James possessed with intent to distribute less than five grams of
cocaine base, a detectable amount, James fails to show an error in the application of
Section 841(b)(1)(C). To the extent that James asserts ineffective assistance based on
counsel’s failure to challenge Section 841(b)(1)(C) at sentencing, James cannot obtain
relief.
Second Motion to Supplement
Three years after the AEDPA’s one-year limitation expired, James moves to
supplement by adding a claim to the motion to vacate. (Doc. 23) James asserts
entitlement to a new limitation under Section 2255(f)(3) which begins the limitation
on the date the Supreme Court announces a new, retroactive rule of law. (Doc. 23
at 4–5) Even assuming a timely supplement, James’s second motion to supplement
lacks merit.5
James alleges that the United States Sentencing Commission lacks authority to
qualify a Florida conviction as a predicate offense under the career-offender
5
Consequently, James’s third motion to supplement (Doc. 24), which requests that the court
accept as fact the allegations of the second motion to supplement, lacks merit.
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guideline. James explains that the Sentencing Commission’s authorizing statute,
28 U.S.C. § 994(h), fails to enumerate a controlled-substance conviction under
Section 893.13, Fla. Stat. as career-offender predicate.6
But “the authority of the Sentencing Commission to decide which offenses
count as controlled substance offenses is not limited to the mandate in § 994(h).”
United States v. Russell, 657 Fed. App’x 894, 895 (11th Cir. 2016). Because the
Sentencing Commission can recognize a conviction under Section 893.13 as
career-offender predicate, James’s challenge to the Sentencing Commission’s
authority fails. See United States v. Pearson, 662 Fed. App’x 896, 901 (11th Cir. 2016)
(“Even if § 994(h) does not authorize the inclusion of state-law crimes such as those
in § 893.13 as career-offender predicates, the Commission has the authority to
include those crimes under § 994(a).”). To the extent that James asserts ineffective
assistance for counsel’s failure to challenge the Sentencing Commission’s authority,
James cannot show either deficient performance or prejudice.
6
§ 994(h)(2) states that:
The Commission shall assure that the guidelines specify a sentence to a term
of imprisonment at or near the maximum term authorized for categories of
defendants in which the defendant is eighteen years old or older and ... (2)
has previously been convicted of two or more prior felonies, each of which is
... (A) a crime of violence ... or ... (B) an offense described in section 401 of
the Controlled Substances Act (21 U.S.C. 841), sections 1002(a), 1005, and
1009 of the Controlled Substances Import and Export Act (21 U.S.C. 952(a),
955, and 959), and chapter 705 of title 46 [46 USCS §§ 70501 et seq.].
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Evidentiary Hearing
James requests an evidentiary hearing. This case warrants no evidentiary
hearing because the face of the motion, the supplements, the annexed exhibits, and
the earlier proceedings show that the movant is not entitled to relief. Broadwater v.
United States, 292 F.3d 1302, 1303 (11th Cir. 2002).
Accordingly, the motion under Section 2255 to vacate the sentence (Doc. 1) is
DENIED. The clerk must enter a judgment against James and close this case.
DENIAL OF BOTH
CERTIFICATE OF APPEALABILITY
AND LEAVE TO APPEAL IN FORMA PAUPERIS
James is not entitled to a certificate of appealability. A prisoner moving under
Section 2255 has no absolute entitlement to appeal a district court’s denial of his
motion to vacate. 28 U.S.C. § 2253(c)(1). Rather, a district court must first issue a
certificate of appealability. Section 2253(c)(2) permits issuing a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” To merit a certificate of appealability, James must show that
reasonable jurists would find debatable both (1) the merits of the underlying claims
and (2) the procedural issues he seeks to raise. See 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 478 (2000); Eagle v. Linahan, 279 F.3d 926, 935
(11th Cir. 2001). Because James fails to show that reasonable jurists would debate
either the merits of the claims or the procedural issues, James is entitled to neither a
certificate of appealability nor an appeal in forma pauperis.
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Accordingly, a certificate of appealability is DENIED. Leave to appeal in
forma pauperis is DENIED. James must obtain permission from the circuit court to
appeal in forma pauperis.
ORDERED in Tampa, Florida, on May 8, 2017.
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