Malone v. USA
Filing
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OPINION AND ORDER on Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by Judge Robert L Miller, Jr on 5/25/2011. (rmn)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
COLUMBUS MALONE,
Petitioner
vs.
UNITED STATES OF AMERICA,
Respondent
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CAUSE NO. 2:10-CV-457 RM
(Arising out of 2:02-CR-44(2) RM)
OPINION and ORDER
Columbus Malone was convicted of conspiring to distribute crack cocaine in
violation of 21 U.S.C. § 846 and distributing crack cocaine in violation of 21 U.S.C. §
841(a)(1), following a six-day jury trial in 2003, and is serving a 235-month sentence
for those offenses. The court of appeals upheld Mr. Malone’s conviction in 2005,
remanded twice for resentencing, and ultimately affirmed the 235-month sentence in
2009. United States v. Malone, No. 09-1694, slip op. At (7th Cir. Nov. 9, 2009). The
court assumes the reader’s familiarity with the facts set forth in the appellate opinion.
Mr. Malone is now before the court requesting that his sentence be vacated under 28
U.S.C. § 2255.1 He contends that his attorney, Adam Tavitas, provided ineffective
assistance at sentencing and on appeal, and that he received an unreasonable and
1
This is Mr. Malone’s second petition under § 2255. His first petition [Doc. No.
437] was granted in October 2008 [Doc. Nos. 530 and 531], effectively “reset[ting] to zero
the counter of collateral attacks.” Shepeck v. United States, 150 F.3d 800, 801 (7th Cir.
1998); see also Walker v. Roth, 133 F.3d 454 (7th Cir. 1997). Accordingly, Mr. Malone
didn’t need to seek advance appellate approval to commence what is, in effect, his first
substantive collateral challenge to his new sentence. Id.
excessive sentence as a result. For the following reasons, the court denies Mr. Malone’s
motion to vacate.2
A person convicted of a federal crime can attack his sentence on the ground that
the sentence was imposed in violation of the Constitution or laws of the United States,
the court had no jurisdiction to impose such sentence, the sentence exceeded the
maximum authorized by law, or the sentence is otherwise subject to collateral attack.
28 U.S.C. § 2255(a). A petition under § 2255 can’t substitute for an appeal or advance
constitutional claims that could have been made earlier, without showing good cause
for and actual prejudice resulting from the petitioner’s failure to raise the claims on
direct appeal. Reed v. Farley, 512 U.S. 339, 354 (1994); United States v. Frady, 456
U.S. 152, 165 (1982); Fountain v. United States, 211 F.3d 429, 433 (7th Cir. 2000).
Ineffective assistance of counsel constitutes good cause for failure to raise an
issue, see Kelly v. United States, 29 F.3d 1107, 1112 (7th Cir. 1994), and may be raised
for the first time in a § 2255 proceeding. Massaro v. United States, 538 U.S. 500, 509
(2003); Richardson v. United States, 379 F.3d 485, 487 (7th Cir. 2004). But counsel is
ineffective in a constitutional sense only when the representation was so deficient that
it “fell below an objective standard of reasonableness” and was prejudicial. Strickland
v. Washington, 466 U.S. 668, 687-688 (1984).
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A hearing isn’t required if “the motion and files and records of the case
conclusively show that the petitioner is entitled to no relief.” 28 U.S.C. § 2255. Mr. Malone
has alleged no facts that would entitle him to relief, so no hearing is necessary to
determine his § 2255 petition. Menzer v. United States, 200 F.3d 1000, 1006 (7th Cir.
2000).
2
Mr. Malone contends that counsel was ineffective at sentencing because he
didn’t object to the drug quantities and other relevant conduct for which he was held
accountable, and that he was ineffective at sentencing and on appeal because he didn’t
object to the unjust ratio and sentencing disparity between crack cocaine and powder
cocaine. To prevail, Mr. Malone must show not only that his attorney’s representation
was objectively unreasonable, but that the result of the proceedings would have been
different, but for his attorney’s unprofessional representation.
Strickland v.
Washington, 466 U.S. at 687-688; Ebbole v. United States, 8 F.3d 530, 533 (7th Cir.
1993). Mr. Malone hasn’t met either requirement. Mr. Malone’s counsel was welladvised to focus on other issues at sentencing and on appeal, because the arguments
raised by Mr. Malone have no merit.
The mandatory minimum term for Mr. Malone’s crime under 21 U.S.C. § 846
(Count 1) was ten years, with a maximum of life, 18 U.S.C. § 924(a)(2). The statutory
maximum for each of his violations of 21 U.S.C. § 841(a)(1) (Counts 12 and 13) was 240
months. Mr. Malone’s aggregate 235-month sentence fell below those maximums, was
within (and at the bottom of) the applicable advisory guideline range, and would have
been presumed to be reasonable on appeal, United States v. Castro-Juarez, 425 F.3d
430, 433 (7th Cir. 2005), had Mr. Malone raised a substantive reasonableness
argument on direct appeal. Mr. Malone has identified nothing that would have
rebutted that presumption.
Mr. Malone’s counsel initially objected to the drug amount identified in the draft
presentence report, but withdrew the objection before the final revised report was
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issued. The presentence report set Mr. Malone’s base offense level at 36 based upon his
involvement in a five-year conspiracy that distributed more than 1.5 kilograms of crack
cocaine. See Presentence Report (revised Feb 24, 2009) at ¶¶ 6, 10, 18-43, and 49. Mr.
Malone was given an opportunity to challenge the factual assertions contained in the
report prior to and at the sentencing hearing, in accordance with Fed. R. Crim. P. 32.
He said at the beginning of the sentencing hearing that he had read the presentence
report and gone over it with his attorney, and voiced no objection when his attorney
told the court that the defense had no objections to the report. When Mr. Malone was
given an opportunity to speak on his own behalf, he didn’t object to the court’s findings
with respect to the quantity of drugs for which he was responsible, or argue for a
downward departure based on a disparity between powder and crack cocaine. He
simply asked the court for “a second chance at life and to get out there and raise [his]
kids.”
A district court may rely on information contained in a presentence report as
long as the report is well-supported and appears reliable. United States v. Heckel, 570
F.3d 791, 795 (7th Cir. 2009); United States v. Corbitt, 879 F.2d 224, 230 (7th Cir.
1989). A defendant may produce evidence that questions the reliability or correctness
of the facts in the report, but he must do so beyond a “bare denial” of the information.
Only when the defendant creates “real doubt” does the burden then shift to the
government to demonstrate the accuracy of the information. United States v. Black,
636 F.3d 893, 897 (7th Cir. 2011). Mr. Malone hasn’t challenged the accuracy of any
of the relevant conduct cited in the report or identified anything his attorney could
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have said to create “real doubt” about the quantity of crack cocaine he and other coconspirators distributed over the years.
The 2008 Guidelines, which the sentencing court applied, included the
amendments to the crack cocaine guidelines, which addressed the 100 to 1 sentencing
disparity for crack cocaine and powder cocaine, and retroactively reduced the sentences
for most crack offenses by two levels. United States v. Padilla, 520 F.3d 766, 773-774
n.2 (7th Cir. 2008). Mr. Malone’s base offense level for conspiring to distribute in excess
of 1.5 kilograms of crack cocaine was reduced from 38 to 36. U.S.S.G. § 2D1.1(c)(2).3
The suggestion that the court would have considered an additional downward
variance had counsel raised a disparate impact argument is factually and legally
unsupported. As is its practice, the court used the guideline range as the starting point
and the initial benchmark, but didn’t presume that the recommended range was
reasonable. See Gall v. United States, 552 U.S. 38, 50 (2007). The court considered the
statutory factors set out in 18 U.S.C. § 3553(a), and concluded that an aggregate
sentence of 235 months was sufficient but not greater than necessary to satisfy the
purposes of § 3553(a). In reaching that decision, the court noted that:
Frankly, there’s enough disagreement over crack sentences that I’m not
sure whether following the Guidelines increases respect for the law or
decreased respect for the law. But given the sheer quantity of crack
cocaine that was involved in this case, it’s not possible for me to say,
3
Mr. Malone’s offense level was increased by two levels because a dangerous
weapon was possessed during the commission of a drug offense, U.S.S.G. § 2D1.1(b)(1),
producing a final adjusted offense level of 38, but Mr. Malone doesn’t challenge the
firearm enhancement in his petition.
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“Well, if it had been the same amount of powder cocaine, this is what the
Guidelines would have recommended.”
[Doc. No. 572 at p. 16-17].
The penalty differential between crack and powder cocaine found in 21 U.S.C.
§ 841 and U.S.S.G. § 2D1.1 before its amendment had been upheld against numerous
constitutional challenges. See United States v. Westbrook, 125 F.3d 996, 1010 and n.
16 (7th Cir. 1997). Given the significant amount of crack cocaine involved in this case
and the two-level reduction already afforded Mr. Malone under § 2D1.1, as amended,
Mr. Malone wouldn’t have prevailed even had his counsel raised a disparity argument
at sentencing and on appeal. Under the circumstances, the court can’t find that it was
objectively unreasonable or prejudicial for counsel to forego an argument that would
have been futile, and to pursue an alternate strategy, i.e., that Mr. Malone was a
changed man and no longer a threat to the public. See Unites States v. Jones, 2010 WL
2679964 at *6 (E.D. Wis. July 2, 2010) (defendant not prejudiced by attorney’s failure
to raise disparity in powder and crack cocaine sentences because the guidelines
crack/cocaine ratio had been upheld numerous times and argument was futile); Lucas
v. O’Dea, 179 F.3d 412, 420 (6th Cir. 1999) (“‘Only in a rare case’ will a court find
ineffective assistance of counsel based upon a trial attorney’s failure to make an
objection that would have been overruled under the then-prevailing law.”)
It appears plainly from the face of Mr. Malone’s motion and prior proceedings
that he isn’t entitled to § 2255 relief, so the court DENIES the motion to vacate, set
aside, or correct sentence [Doc. No. 596].
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SO ORDERED.
ENTERED:
May 25, 2011
/s/ Robert L. Miller, Jr.
Judge
United States District Court
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