Clay v. United States of America
Filing
12
ORDER granting 7 Pro Se Motion to Amend, denying 9 Pro Se Motion for Extension of Time to File Reply and denying 1 Pro Se Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR 09-5). A certificate of appealability is denied. Signed by Chief Judge Linda R Reade on 10/17/2013 (copy w/NEF mailed to Plt). (skm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
DONNALE C. CLAY,
Movant,
No. C11-0121-LRR
No. CR09-0005-LRR
vs.
UNITED STATES OF AMERICA.
ORDER
____________________________
This matter appears before the court on Donnale C. Clay’s motion to vacate, set
aside or correct sentence pursuant to 28 U.S.C. § 2255 (civil docket no. 1). Donnale C.
Clay (“the movant”) filed such motion on November 14, 2011. On November 15, 2011,
the court, among other things, directed the parties to brief the claims that the movant
included in his motion pursuant to 28 U.S.C. § 2255 (civil docket no. 2). On December
13, 2011, counsel filed their affidavits (civil docket nos. 3 & 4). On January 13, 2012,
the movant filed a supplement (civil docket no. 5). On the same date, the government filed
a resistance (civil docket no. 6). On January 17, 2012, the movant filed a motion to
amend (civil docket no. 7), and, on January 26, 2012, the movant filed a motion for
extension of time to file a reply. The court now turns to consider the movant’s motion for
extension of time to file a reply, motion to amend, supplement and motion pursuant to 28
U.S.C. § 2255.
Concerning the movant’s supplement and motion to amend, the movant asks the
court to consider whether he was coerced into pleading guilty, whether his criminal history
had been correctly calculated, whether counsel promised him that he would receive a
sentence of 51 to 63 months imprisonment, whether the government withheld evidence,
whether the court impermissibly participated in plea negotiations and whether he could
withdraw his guilty plea. All of the movant’s claims are timely and some of his claims
relate to his original claims. See United States v. Craycraft, 167 F.3d 451, 457 (8th Cir.
1999) (concluding an otherwise untimely amendment to a 28 U.S.C. § 2255 motion does
not relate back to a timely filed motion when the original claims are distinctly separate
from the claims in the amendment); see also Mandacina v. United States, 328 F.3d 995,
999-1000 (8th Cir. 2003) (citing Craycraft, 167 F.3d at 457); Moore v. United States, 173
F.3d 1131, 1135 (8th Cir. 1999) (discussing Craycraft, 167 F.3d at 456-57). Despite the
fact that the court already ordered the government to respond to the movant’s original
claims and some of the movant’s claims are distinct from his original claims, the court
finds that it is appropriate for the court to consider the additional claims that the movant
raised in his supplement and motion to amend. Accordingly, the movant’s motion to
amend (civil docket no. 7) shall be granted.
As to the movant’s request for additional briefing, the court concludes that no
further briefing from the government or the movant is necessary. In light of the record,
the court finds that the movant is merely advancing arguments without regard to the truth
in order to gain relief. Very little that the movant states is supported by any verifiable
facts and nearly everything he states is belied by the credible assertions of counsel.
Accordingly, the movant’s motion for extension of time to file a reply (civil docket no. 9)
shall be denied.
A district court is given discretion in determining whether to hold an evidentiary
hearing on a motion under 28 U.S.C. § 2255. See United States v. Oldham, 787 F.2d 454,
457 (8th Cir. 1986). In exercising that discretion, the district court must determine
whether the alleged facts, if true, entitle the movant to relief. See Payne v. United States,
78 F.3d 343, 347 (8th Cir. 1996). “Accordingly, [a district court may summarily dismiss
a motion brought under 28 U.S.C. § 2255 without an evidentiary hearing] if (1) the . . .
allegations, accepted as true, would not entitle the [movant] to relief, or (2) the allegations
2
cannot be accepted as true because they are contradicted by the record, inherently
incredible, or conclusions rather than statements of fact.” Engelen v. United States, 68
F.3d 238, 240-41 (8th Cir. 1995) (citations omitted); see also Delgado v. United States,
162 F.3d 981, 983 (8th Cir. 1998) (stating that an evidentiary hearing is unnecessary
where allegations, even if true, do not warrant relief or allegations cannot be accepted as
true because they are contradicted by the record or lack factual evidence and rely on
conclusive statements); United States v. Hester, 489 F.2d 48, 50 (8th Cir. 1973) (stating
that no evidentiary hearing is necessary where the files and records of the case demonstrate
that relief is unavailable or where the motion is based on a question of law). Stated
differently, a 28 U.S.C. § 2255 motion can be dismissed without a hearing where “the files
and records of the case conclusively show that the prisoner is entitled to no relief.” 28
U.S.C. § 2255; see also Standing Bear v. United States, 68 F.3d 271, 272 (8th Cir. 1995)
(per curiam).
The court concludes that it is able to resolve all of the movant’s claims from the
record. See Rogers v. United States, 1 F.3d 697, 699 (8th Cir. 1993) (holding “[a]ll of
the information that the court needed to make its decision with regard to [the movant’s]
claims was included in the record . . . .” and, therefore, the court “was not required to
hold an evidentiary hearing”) (citing Rule Governing Section 2255 Proceedings 8(a) and
United States v. Raddatz, 447 U.S. 667, 674, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980)).
The evidence of record conclusively demonstrates that the movant is not entitled to the
relief sought. Specifically, it indicates that the court properly accepted the movant’s pleas
of guilty, the government did not engage in inappropriate conduct and counsel represented
the movant in a manner that exceeded constitutional requirements. As such, the court finds
that there is no need for an evidentiary hearing.
With respect to the merits of the movant’s three original claims, the court deems it
appropriate to deny the movant’s 28 U.S.C. § 2255 motion for the reasons stated in the
government’s resistance. The government’s brief adequately sets forth the law that is
3
applicable to the facts in the movant’s case. Specifically, the government correctly
concluded that counsel provided professional and effective assistance to the movant and
the movant suffered no prejudice as a result of counsel’s actions.
Moreover, the court thoroughly reviewed the record and finds that the denial of the
movant’s 28 U.S.C. § 2255 motion comports with the Constitution, results in no
“miscarriage of justice” and is consistent with the “rudimentary demands of fair
procedure.” Hill v. United States, 368 U.S. 424, 428, 82 S. Ct. 468, 7 L. Ed. 2d 417
(1962); see also United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996) (“Relief under
28 U.S.C. § 2255 is reserved for transgressions of constitutional rights and for a narrow
range of injuries that could not have been raised for the first time on direct appeal and, if
uncorrected, would result in a complete miscarriage of justice.” (citing Poor Thunder v.
United States, 810 F.2d 817, 821 (8th Cir. 1987))). It is not subject to debate that the
movant knowingly and voluntarily pleaded guilty pursuant to a plea agreement that he
entered into with the government. See Walker v. United States, 115 F.3d 603, 604 (8th
Cir. 1997) (“[A] valid guilty plea forecloses an attack on conviction unless ‘on the face of
the record the court had no power to enter the conviction or impose the sentence.’”);
United States v. Jennings, 12 F.3d 836, 839 (8th Cir. 1994) (a voluntary and unconditional
guilty plea waives all defects except those related to jurisdiction). The parties’ plea
agreement addressed, among other things, the possibility of the movant receiving a
mandatory minimum sentence depending on the drug quantity found by the court1 and the
fact that nobody threatened or forced the movant to plead guilty. It is true that the movant
could have faced additional charges pursuant to a second superseding indictment and/or
a lengthier sentence if he did not plead guilty, but the movant’s situation does not suggest
1
The court notes that the parties’ plea agreement is dated May 4, 2009, and the
Supreme Court decided later that judicial fact finding that increases the mandatory
minimum sentence is not permissible. See generally Alleyne v. United States, ___ U.S.
___, 133 S. Ct. 2151 (2013).
4
that either the court or the government did anything improper. In addition, at no point
during the multi-day sentencing hearing did the movant ever complain about facing a
sentencing range of 100 to 125 months imprisonment rather than a sentencing range of 51
to 63 months imprisonment. The record clearly indicates that the movant’s contention
about what counsel promised him is false. Indeed, it indicates that the movant knew that
he faced a wide range of possible sentences—up to 40 years based on the applicable
statutes and between 37 to 162 months imprisonment but more likely between 70 and 87
months imprisonment or 120 to 150 months imprisonment depending on the applicable
sentencing guidelines—and that he received a shorter sentence than he and counsel were
expecting. In the event that the movant elected to go to trial or he tried to withdraw his
guilty plea, it is a near certainty that the movant would have received a longer sentence.
This is especially so because a jury would have found the movant guilty in light of the
stipulation of facts that he agreed could be used against him in any proceeding, the movant
would have lost acceptance of responsibility and the government most likely would have
filed a second superseding indictment and/or introduced evidence of drug quantity.
Further, it is evident that the court appropriately sentenced the movant. The court’s
application of the advisory sentencing guidelines and consideration of the parties’
arguments violated no constitutional right. See United States v. Villareal-Amarillas, 562
F.3d 892, 898 (8th Cir. 2009) (observing that a sentencing judge is only constrained by
the statutory maximum and minimum for an offense and the factors included in 18 U.S.C.
§ 3553(a)). None of the terms that the parties included in their plea agreement restricted
the court’s discretion during the sentencing hearing; the parties did not stipulate to any
application of particular sentencing guidelines.
Lastly, it is apparent that the conduct of counsel fell within a wide range of
reasonable professional assistance, Strickland v. Washington, 466 U.S. 668, 689 (1984),
and any deficiencies in counsel’s performance did not prejudice the movant’s defense, id.
at 692-94. The movant’s claims regarding ineffective assistance of counsel are devoid of
5
merit. Contrary to the movant’s assertions, counsel did not coerce or threaten the movant
into pleading guilty, counsel did not fail to raise any viable sentencing argument and
counsel made strategic decisions that tremendously benefitted the movant. There is no
credible basis to conclude that counsel’s investigation was inadequate, counsel should have
sought suppression of certain evidence, counsel pressured the movant into pleading guilty,
counsel promised a sentence of 51 to 63 months imprisonment, counsel should have sought
to withdraw the movant’s plea of guilty or counsel should have further challenged the
movant’s criminal history category when he had been correctly assessed with a total of 12
points. Moreover, the movant’s assertions as to what counsel did or failed to do would not
have changed the outcome.
In sum, the alleged errors that are asserted by the movant do not warrant relief
under 28 U.S.C. § 2255. The movant’s claims are baseless. None of the movant’s
assertions in support of his request for relief lead the court to conclude that a violation of
the Constitution occurred. Based on the foregoing, the movant’s 28 U.S.C. § 2255 motion
shall be denied.
In a 28 U.S.C. § 2255 proceeding before a district judge, the final order is subject
to review, on appeal, by the court of appeals for the circuit in which the proceeding is
held. See 28 U.S.C. § 2253(a). Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals. See 28 U.S.C. §
2253(c)(1)(A). A district court possesses the authority to issue certificates of appealability
under 28 U.S.C. § 2253(c) and Fed. R. App. P. 22(b). See Tiedeman v. Benson, 122 F.3d
518, 522 (8th Cir. 1997). Under 28 U.S.C. § 2253(c)(2), a certificate of appealability
may issue only if a movant has made a substantial showing of the denial of a constitutional
right. See Miller-El v. Cockrell, 537 U.S. 322, 335-36, 123 S. Ct. 1029, 1039, 154 L.
Ed. 2d 931 (2003); Garrett v. United States, 211 F.3d 1075, 1076-77 (8th Cir. 2000);
Carter v. Hopkins, 151 F.3d 872, 873-74 (8th Cir. 1998); Cox v. Norris, 133 F.3d 565,
569 (8th Cir. 1997); Tiedeman, 122 F.3d at 523. To make such a showing, the issues
6
must be debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings. Cox, 133 F.3d at 569 (citing Flieger v. Delo,
16 F.3d 878, 882-83 (8th Cir. 1994)); see also Miller-El, 537 U.S. at 335-36 (reiterating
standard).
Courts reject constitutional claims either on the merits or on procedural grounds.
“‘[W]here a district court has rejected the constitutional claims on the merits, the showing
required to satisfy [28 U.S.C.] § 2253(c) is straightforward: the [movant] must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.’” Miller-El, 537 U.S. at 338 (quoting Slack v.
McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000)). When a
federal habeas petition is dismissed on procedural grounds without reaching the underlying
constitutional claim, “the [movant must show], at least, that jurists of reason would find
it debatable whether the petition states a valid claim of the denial of a constitutional right
and that jurists of reason would find it debatable whether the district court was correct in
its procedural ruling.” See Slack, 529 U.S. at 484.
Having thoroughly reviewed the record in this case, the court finds that the movant
failed to make the requisite “substantial showing” with respect to the claims that he raised
in his 28 U.S.C. § 2255 motion. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b).
Because he does not present a question of substance for appellate review, there is no
reason to grant a certificate of appealability. Accordingly, a certificate of appealability
shall be denied. If he desires further review of his 28 U.S.C. § 2255 motion, the movant
may request issuance of the certificate of appealability by a circuit judge of the Eighth
Circuit Court of Appeals in accordance with Tiedeman, 122 F.3d at 520-22.
IT IS THEREFORE ORDERED:
1) The movant’s motion to amend (civil docket no. 7) is granted.
7
2) The movant’s motion for extension of time to file a reply (civil docket no. 9) is
denied.
3) The movant’s 28 U.S.C. § 2255 motion (civil docket no. 1) is denied.
4) A certificate of appealability is denied.
DATED this 17th day of October, 2013.
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?