MCINTOSH v. UNITED STATES OF AMERICA

Filing 20

ENTRY on Motion to Vacate, Set Aside or Correct Sentence (2255) - Petitioner's Motion for Relief pursuant to 28 U.S.C. 2255 must be DENIED and the action DISMISSED with prejudice. Judgment consistent with this Entry shall now issue. In addition, the Court finds that a certificate of appealability should not issue. Signed by Judge Tanya Walton Pratt on 9/20/2011.(JD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
DANNYE T. McINTOSH,
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.

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Case No. 1:08-cv-422-TWP-DKL

ENTRY DISCUSSING MOTION FOR RELIEF PURSUANT TO 28 U.S.C. § 2255
AND DENYING CERTIFICATE OF APPEALABILITY
For the reasons explained in this Entry, the motion of Dannye T. McIntosh (“McIntosh”)
for relief pursuant to 28 U.S.C. ' 2255 must be denied and the action dismissed with prejudice. In
addition, the Court finds that a certificate of appealability should not issue.
I.

28 U.S.C. § 2255 CLAIM

A motion pursuant to 28 U.S.C. § 2255 is the presumptive means by which a federal
prisoner can challenge his conviction or sentence. See Davis v. United States, 417 U.S. 333, 343
(1974).
A court may grant relief from a federal conviction or sentence pursuant to Section 2255
"upon the ground that the sentence was imposed in violation of the Constitution or laws of the
United States, or that the court was without jurisdiction to impose such sentence, or that the
sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral
attack." 28 U.S.C. § 2255. Because McIntosh has failed to make such a showing here, his
motion for relief pursuant to 28 U.S.C. § 2255 must be DENIED. This conclusion is based on the
following facts and circumstances:
1.

McIntosh, along with co-defendants Irving Posada-Guevara (“Posada-Guevara”)

and Jason Black (“Black”), was charged in No. IP 05-CR-119-03-H/F with (Count 1) conspiracy
to possess with intent to distribute 100 kilograms or more of marijuana, in violation of 21 U.S.C. §
841(a)(1) and 846; and (Count 2) possession with intent to distribute 100 kilograms or more of
marijuana, in violation of 21 U.S.C. § 841(a)(1). Posada-Guevara pled guilty to both counts of
the Indictment. McIntosh and Black were tried together before a jury and were each found guilty
of both counts. Posada-Guevara did not testify at the trial.
2.

A sentencing hearing was conducted on March 17, 2006. The Court determined

McIntosh’s advisory guideline sentencing range to be 360 months to life imprisonment. That
range was based on the determination that McIntosh had a total offense level of 37 and a criminal
history category of VI. McIntosh was sentenced as a career offender pursuant to USSG § 4B1.1.
The Court sentenced McIntosh to two concurrent terms of imprisonment of 360 months to be
followed by two concurrent eight year terms of supervised release. McIntosh was also assessed
the mandatory assessment of $200.00.
3.

McIntosh appealed his convictions and sentence. McIntosh’s attorney filed a brief

pursuant to Anders v. California, 386 U.S. 738 (1967), and, after providing McIntosh with a period
of time to respond, the attorney was permitted to withdraw and the appeal was then dismissed as
frivolous. United States v. Black and McIntosh, 2007 WL 959411 (7th Cir. March 30, 2007)
(unpublished disposition). In making the assessments required when acting on an Anders brief,
the Court of Appeals found the evidence of McIntosh’s guilt sufficient and found that a challenge
to the reasonableness of McIntosh’s sentence would be frivolous. In reviewing the case as
presented to it, the Court of Appeals explained:
[T]he evidence in the record is sufficient on the conspiracy count if it shows
that McIntosh was aware that the goal of the conspiracy was to distribute marijuana
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and he acted to further that goal, see United States v. Medina, 430 F.3d 869, 882
(7th Cir. 2005), even if the evidence is entirely circumstantial. See United States
v. Brisk, 171 F.3d 514, 526 (7th Cir. 1999). Here, the evidence showed that
McIntosh called Black four times between 12:23 a.m. and 12:35 a.m., which was
about twenty-five minutes before the three men attempted to pick up the marijuana.
The jury could reasonably infer that McIntosh made these phone calls in order to
recruit Black to use his pick-up truck to retrieve the marijuana. McIntosh then
rode with Black and Posada to the location and proceeded to help load the
boxes-some of which broke open prior to being loaded and all of which had a
“strong marijuana odor”-suggesting that McIntosh knew that the boxes contained
marijuana. This inference is further supported by the fact that McIntosh jumped
out of the fleeing pick-up truck as it was still moving, evaded the police, and hid
underneath a car that was parked nearby. It would, therefore, be frivolous for
McIntosh to argue that the record is devoid of evidence that he knew that there was
a conspiracy to distribute marijuana and that he acted to further that goal by
recruiting a driver and loading the truck.
Second, the evidence is sufficient on the possession count if it shows that
McIntosh possessed the marijuana with the intent to distribute it while knowing
that it was a controlled substance. See United States v. Orozco–Vasquez, 469 F.3d
1101, 1106 (7th Cir. 2006). It would be frivolous to argue in the face of the
evidence described above that McIntosh was unaware that the boxes contained
marijuana or that he did not possess it.
Id., 2007 WL 959411, *3. The Seventh Circuit also found that the testimony of Agent Hagelsieb
and Agent Lievers regarding statements Posada-Guevara made to them “during the course and in
furtherance of the conspiracy” were not hearsay. Id. citing 801(d)(2)(E).
4.

McIntosh’s Section 2255 motion is premised on claims that he was denied effective

assistance of counsel at trial and at sentencing, as well as in his direct appeal. Each specification
of attorney ineffectiveness suffers from the same fatal defect, which is that McIntosh has not
shown prejudice in the manner required by Strickland v. Washington, 466 U.S. 668 (1984). In
order to show prejudice from a counsel's inadequate representation, a petitioner “’must show that
there is a reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different....’” Pole v. Randolph, 570 F.3d 922, 934 (7th Cir. 2009)

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(quoting Strickland, 466 U.S. at 694); see also Wyatt v. United States, 574 F.3d 455, 458 (7th Cir.
2009).
5.

McIntosh’s claims of ineffective assistance of counsel are, as the government

describes, “not readily discernible, but appear to revolve around the non-testimony of
co-defendant Posada-Guevara.” McIntosh appears to argue that he had a constitutional right to
cross-examine Posada-Guevara and that the government should have granted Posada-Guevara
immunity to testify. Not granting Posada-Guevara immunity, he asserts, effectively suppressed
exculpatory evidence. Had Posada-Guevara testified, McIntosh argues he could have elicited
testimony which would have demonstrated that McIntosh was just an innocent helper in the
loading of the boxes, prove that he knew nothing about the marijuana, that there was no evidence
of marijuana in sight nor was there any smell of marijuana there that night, prove that there was no
conspiratorial agreement between himself and Posada-Guevara and, most especially, prove that
Posada-Guevara was a cooperating individual at the time of the incident.
6. Specifically, McIntosh argues the following:
a. “Counsel was ineffective for failure to object effectively to the government
invocation of Posada’s already-waived right to be free of self-incrimination on the
basis that it is a personal right to which the government lacked standing and that it
could have grant Posada –Guevara immunity against self-incrimination.” Dkt 2.
at p.3.
b. “Counsel was ineffective for failure to move to challenge in this honorable court
and on appeal movant’s prosecution on the basis of suppressed evidence of
unaccounted for time and implications of exculpatory evidence relating to Joe’s

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disappearance, the vanishing of the two Spanish-speaking occupants of the first
truck, and Posada’s missing cell-phone that facilitated everything in this case.”
Dkt 2 at p. 7.
c. “Counsel was ineffective for failure to seek the time and date when Posada became
a cooperating individual and ask that the government clarify whether Posada was
cooperating with law enforcement during the period of the movant’s alleged
participation.” Dkt. 2 at p. 7.
d. “Counsel was ineffective for failure to ask for the government to explain the
inter-relationship between Posada and Joe, the two Spanish-speaking occupants in
the first truck to the charged offenses and, if Posada was cooperating at the time of
movant’s alleged participation, to explain and clarify why Posada was indicted for
conducts that were within the time frame of his official duty.” Dkt. 2 at p. 8.
e. “Counsel was ineffective for failure to move to challenge in this honorable court
and on appeal movant’s prosecution on the basis that the government suppressed
the only direct evidence bearing on whether there was conspiratorial agreement,
knowledge and intent.” Dkt. 2. at p. 8.
f. “Cumulative effect of errors in this case raised to level of structural error.” Dkt. 2
at p.8.
7.

McIntosh’s claims of ineffective assistance of counsel fail because he has

demonstrated neither harm nor prejudice from his attorney’s representation:
a. McIntosh does not provide any evidence or point to any support in the record that
Posada-Guevara was co-operating with the government as an informant or as an

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agent.
b. McIntosh does not provide any evidence or support in the record for his claim that
the government “stood in the way of letting Posada-Guevara, its cooperating
witness, testify by” invoking

Posada-Guevara’s right to be free of

self-incrimination to prevent him from testifying on behalf of the defense.
c. McIntosh has not offered an affidavit which shows what testimony
Posada-Guevara would have given and there is no reason for this Court to believe
that Posada-Guevara’s testimony would have affected the outcome of the trial
given the fact that he pled guilty to the conspiracy and the other evidence offered at
trial. See Prewitt v. United States, 83 F.3d 812, 819 (7th Cir. 1996); United States
v. Kamel, 965 F.2d 484, 499 (7th Cir. 1992). As the Seventh Circuit stated “Here
the evidence showed that McIntosh was an active participant...and it would be
frivolous for McIntosh to try to argue that he was merely present during the
offense.” Black and McIntosh, 2007 WL 959411, *3.
d. There is no evidence to support McIntosh’s allegation that the government
suppressed evidence favorable to McIntosh (or any evidence at all).
e. McIntosh alleges generally that Posada-Guevara’s guilty plea was used as a
material fact during his trial in violation of the confrontation clause citing Bruton v.
United States, 391 U.S. 123 (1968). But McIntosh does not point to any specific
testimony or citation to the record in support of his claim. There is simply no
evidence that McIntosh’s attorney was ineffective in failing to object to a violation
of the confrontation clause.

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8.

McIntosh raises an additional argument in his submission dated September 25,

2009 [Dkt 15]. This filing invites the Court to conduct an analysis pursuant to Begay v. United
States, 553 U.S. 137 (2008). However, this would avail McIntosh nothing, as the following
circumstances establish:
a. Under United States Sentencing Guidelines (“U.S.S.G.” or “the Guidelines”) §
4B1.1, a defendant is sentenced as a career offender if, among other requirements,
he has at least two prior felony convictions of either a crime of violence or a
controlled substance offense.
b. The application of the career criminal enhancement pursuant to § 4B1.1 was found
warranted at McIntosh’s sentencing. Judge Hamilton found at McIntosh’s
sentencing that McIntosh had a prior controlled substance offense and a prior crime
of violence. This latter prior offense consisted of McIntosh’s conviction for
reckless homicide, wherein he shot and killed his girlfriend.
c. The Guidelines define a “crime of violence” as an offense that warrants at least a
year in prison and “(1) has as an element the use, attempted use, or threatened use
of physical force against the person of another, or (2) is burglary of a dwelling,
arson, or extortion, involves use of explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to another.” Id. § 4B1.2(a).
d. The definition of “crime of violence” in the Guidelines is almost identical to the
definition of “violent felony” in the Armed Career Criminal Act. See 18 U.S.C. §
924(e)(2)(B)(ii); U.S.S.G. § 4B1.2(a)(2). Because both share essentially the same
definition, the same analysis is applied to determine whether a crime is a violent

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felony under the Armed Career Criminal Act and to determine whether a crime is a
crime of violence under the Guidelines. See United States v. Woods, 576 F.3d
400, 403-04 (7th Cir. 2009). Under the Armed Career Criminal Act, a crime that
poses a serious risk of physical injury must also be similar in kind to the
enumerated crimes to meet the definition of “violent felony.” Begay, 553 U.S. at
142. Therefore this same restriction applies to the career offender enhancement,
and it must be similar in kind to the enumerated crimes to meet the definition of a
crime of violence.
e. In Woods, the Seventh Circuit held that Illinois' crime of involuntary manslaughter
was not a “crime of violence” for purposes of career offender guidelines.
McIntosh seeks to align his reckless homicide on the Woods side of the § 4B1.2(a)
ledger.
f. Woods does not control here. As shown by the recent decision in Price v. United
States, 2011 WL 3468340, *3 (7th Cir. Aug. 8, 2011), a Begay analysis of
McIntosh’s reckless homicide conviction would require a modified categorical
approach, which applies when a statute is “divisible” – that is, when it creates more
than one crime or one crime with multiple enumerated modes of commission, some
of which may be crimes of violence and some not. Woods, 576 F.3d at 405-06
(citing Begay; James; Chambers v. United States, 129 S.Ct. 687 (2009); and
Nijhawan v. Holder, 129 S.Ct. 2294 (2009)).
g. In Price, the defendant argued that his 1996 Indiana conviction for criminal
recklessness, Ind. Code ' 35–42–2–2, was not a violent felony under the residual
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clause of the Armed Career Criminal Act. Under Indiana law, a person is guilty of
criminal recklessness if he “recklessly, knowingly, or intentionally” performs an
act that creates a “substantial risk of bodily injury” to another. Ind. Code '
35–42–2–2(b)(1). The Court of Appeals examined the nature of the statute and
concluded that because Price pleaded guilty to criminal recklessness, and his
admission showed that he intended to shoot and hit the car “he violated the
intentional branch of the criminal-recklessness statute.” Price v. United States,
2011 WL 3468340, *4 (citing United States v. Clinton, 591 F.3d 968, 973–74 (7th
Cir. 2010) (defendant's prior Indiana conviction for criminal recklessness was
violation of intentional part of statute and predicate crime of violence because
admission during plea colloquy that he stabbed victim more times than necessary
revealed that he intended act and consequences).
h. McIntosh likewise violated the intentional part of Indiana’s criminal reckless
statute in relation to the shooting death of his girlfriend.

See Ind. Code '

35-42-1-5 (“A person who recklessly kills another human being commits reckless
homicide, a Class C felony.”). This conclusion rests upon his use of a firearm in
that offense. United States v. Crews, 621 F.3d 849, 856-57 (9th Cir. 2010) (“We
have trouble imagining a circumstance in which a person could knowingly use a
dangerous weapon without intending to do so. Indeed, Crews has not provided
any case in which an individual who knowingly engaged in an assault by means of
a deadly or dangerous weapon acted without the intent to cause harm. In short,
convictions involving knowing use of a deadly weapon typically involve
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‘purposeful’ conduct within the meaning of Begay.”).
i. Indeed, as Price also noted, “[t]he Supreme Court recently said in Sykes [v. United
States, 131 S.Ct. 2267 (2011),] that requiring an ACCA predicate offense to be
purposeful, violent, and aggressive ‘overreads’ the Court's opinions. 131 S.Ct. at
2275. The court emphasized that residual-clause analysis should focus on the risk
of physical injury. See id. at 2273, 2275 (noting that Begay was the “sole decision
of this court concerning the reach of ACCA's residual clause in which risk was not
the dispositive factor”). The ‘purposeful, violent, and aggressive’ phrase was
used, the court said, only to explain the result in Begay, where the prior conviction
at issue – DUI – did not have to be committed purposefully. Id. at 2275–76.” 2011
WL 3468340, *4.
Under these circumstances, the Court has no doubt that both at the time of sentencing and at
present McIntosh’s conviction for reckless homicide qualified as a “crime of violence” as that term
is used in U.S.S.G. § 4B1.2(a). Accordingly, his sentence is not infirm for that reason and his
supplemental claim does not entitle him to relief under Section 2255.
Having considered the pleadings, the expanded record, and the parties’ arguments, the
Court finds for the reasons explained in this Entry that McIntosh has failed to show that he is
entitled to the relief he seeks and that his motion relief pursuant to 28 U.S.C. § 2255 must be
DENIED. Judgment consistent with this Entry shall now issue.
II.

CERTIFICATE OF APPEALABILITY

Pursuant to Federal Rule of Appellate Procedure 22(b), Rule 11(a) of the Rules governing
§ 2255 proceedings, and 28 U.S.C. § 2253(c), the Court finds that McIntosh has failed to show

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that reasonable jurists would find this Court's assessment of the constitutional claims debatable or
wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court therefore DENIES a certificate
of appealability.

SO ORDERED.
09/20/2011
DATE: __________________
______________________________
________________________
Hon. Tanya Walton Pratt, Judge
Hon. Tanya Walton Pratt, Judge
United States District Court
United States District Court
Southern District of Indiana

DISTRIBUTION:
Dannye T. McIntosh, DOC #05631-028
Terre Haute Federal Correction Institution
Inmate Mail/Parcels
P.O. Box 33
Terre Haute, Indiana 47808
Gerald A. Coraz
United States Attorney’s Office
[e-mail]

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