King v. United States of America
Filing
11
ORDER granting 3 Motion to Dismiss; dismissing 1 Motion to Vacate/Set Aside/Correct Sentence (2255) (Criminal Action CR07-4038-MWB). Judgment shall issue accordingly; and No certificate of appealability will issue. Signed by Judge Mark W Bennett on 5/9/2014. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
ALONZO KING,
No. C 13-4027-MWB
(No. CR 07-4038-MWB)
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent.
MEMORANDUM OPINION AND
ORDER REGARDING
RESPONDENT’S MOTION TO
DISMISS PETITIONER’S § 2255
MOTION
___________________________
Petitioner Alonzo King filed his pro se “Motion To Correct Illegal Sentence” (Civ.
docket no. 1) on March 13, 2013, ostensibly seeking correction of an illegal sentence,
pursuant to Rule 35 of the Federal Rules of Criminal Procedure. King challenges his
sentence to a mandatory minimum of 240 months of imprisonment upon his conviction
of conspiracy to distribute 50 grams or more of crack cocaine after a prior felony drug
conviction, all in violation of 21 U.S.C. §§ 841(a), 846, and 851. In his motion, King
alleges that I improperly imposed a prior conviction enhancement pursuant to § 851,
because (1) I failed to ask him at his sentencing if he affirmed or denied the prior
conviction, as required by § 851(b), and (2) I failed to inform him that any challenge to
a prior conviction that was not made before sentence was imposed may not thereafter be
raised to attack the sentence, as also required by § 851(b). By Order (docket no. 2), filed
March 13, 2013, I construed King’s “Motion To Correct Illegal Sentence” as a Motion
To Vacate Sentence And Judgment Pursuant To 28 U.S.C. § 2255 (§ 2255 Motion) and
directed the respondent to file an answer or other response to King’s § 2255 Motion on
or before May 14, 2013.
On May 1, 2013, the respondent filed the Motion To Dismiss Petitioner’s Motion
Under 28 U.S.C. § 2255 (Civ. docket no. 3) now before me. In that Motion, the
respondent argues that King’s claim is not cognizable under § 2255 or, if it is, that it is
procedurally defaulted, because it was not raised on King’s direct appeal, which
challenged King’s 240-month mandatory minimum sentence only on the ground that it
was “unreasonably harsh.” See Respondent’s Motion To Dismiss, Exhibit 1 (King’s
counsel’s “Anders brief” on direct appeal). The respondent also argues that King’s 1993
conviction, on which the § 851 sentencing enhancement was based, was unchallengeable
pursuant to § 851(e), because it was more than five years old at the time of King’s
sentencing in 2008. By Order (Civ. docket no. 4), filed May 1, 2013, I directed the
Clerk of Court to appoint counsel to represent King; directed King to file, with the aid
of counsel, a response to the respondent’s Motion To Dismiss on or before June 17,
2013; and gave the respondent to and including July 1, 2013, to file any reply brief.
Notwithstanding that I had appointed counsel to represent him, King filed a pro se
Reply Motion To Correct Sentence Title U.S.C. § 2255 Motion (Civ. docket no. 5) on
May 13, 2013. King’s pro se Reply argues the merits of his claim for relief, but does
not respond to the respondent’s grounds for dismissal of King’s § 2255 Motion. King’s
counsel filed no response to the respondent’s Motion To Dismiss, either.1 On May 23,
2013, the respondent filed a Surreply To Petitioner’s Reply Motion To Correct Sentence
Title 28 U.S.C. § 2255 Motion (docket no. 6) challenging King’s assertion in his pro se
Reply that his sentencing enhancement was based on a 2006 conviction rather than a 1993
conviction and reiterating that the 1993 conviction is unchallengeable pursuant to
1
The failure of King’s appointed counsel in this proceeding to file any timely
response to the respondent’s Motion To Dismiss, as directed in my Order (Civ. docket
no. 4), or to seek an extension of time to do so, or to timely certify that counsel had
nothing to add to King’s pro se Reply, is completely unacceptable.
2
§ 851(e). The respondent also states in its Surreply that it stands on its arguments in its
Motion To Dismiss.
On January 10, 2014, the respondent filed a Status Request (docket no. 7), noting
that counsel appointed to represent King had not filed any response to its Motion To
Dismiss, reiterating that the respondent stands on its arguments in its Motion To Dismiss,
and reiterating its request that King’s § 2255 Motion be dismissed in its entirety. On
January 13, 2014, I entered an Order Regarding Respondent’s Status Request (docket no.
8), noting that respondent’s Motion To Dismiss is fully submitted and stating that that
motion would be considered by the court within the next 60 days. Regrettably, I did not
meet that self-imposed deadline. On January 14, 2014, King’s counsel belatedly entered
the fray, or more accurately, belatedly stated that he would not enter the fray, by filing
a Report To The Court (docket no. 9), in which he stated that, “having investigated this
matter . . . he has nothing additional to add to this matter as attorney on Mr. King’s
behalf.” On May 5, 2014, King filed what I construe to be a pro se Supplement (docket
no. 10), “respectfully request[ing] a decision” on his § 2255 Motion and reiterating his
assertions that “[t]he record reflect[s] a valid constitutional violation.”
Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a pre-answer
motion to dismiss for “failure to state a claim upon which relief can be granted.” FED.
R. CIV. P. 12(b)(6). Although factual “plausibility” is ordinarily the central focus of
Rule 12(b)(6) motions to dismiss under the current Twom-bal standard,2 various federal
2
The “Twom-bal standard” is my nickname for the “plausibility” pleading
standard established in the United States Supreme Court’s twin decisions on pleading
requirements, and standards for dismissal for failure to state a claim upon which relief
can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for
claims in federal court. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct.
1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173
L.Ed.2d 868 (2009).
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Circuit Courts of Appeals have expressly recognized, and the Eighth Circuit Court of
Appeals has suggested, that the Twom-bal standard still permits dismissal pursuant to
Rule 12(b)(6) of a claim that lacks a cognizable legal theory, in addition to permitting
dismissal for factual implausibility. See, e.g., Somers v. Apple, Inc., 729 F.3d 953, 959
(9th Cir. 2013); Ball v. Famiglio, 726 F.3d 448, 469 (3d Cir. 2013) (a claim may be
dismissed if it is based on an “indisputably meritless legal theory”); Commonwealth
Property Advocates, L.L.C. v. Mortgage Electronic Registration Sys., Inc., 680 F.3d
1194, 1202 (10th Cir. 2011) (“Dismissal is appropriate if the law simply affords no
relief.”); see also Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649
(6th Cir. 2013) (recognizing that a claim must plead sufficient facts under a “viable legal
theory”); cf. Brown v. Mortgage Electronic Registration Sys., Inc., 738 F.3d 926, 933
n.7, 934 (8th Cir. 2013) (noting the appellate court’s agreement “with the district court’s
sound reasoning that the facts pled do not state a cognizable claim under Arkansas law”
and holding that dismissal pursuant to Rule 12(b)(6) was appropriate, because Arkansas
law did not impose the purported duty on which an unjust enrichment claim and a state
statutory claim were based). It is precisely the lack of a cognizable legal theory for
King’s § 2255 Motion that the respondent asserts in its Motion To Dismiss in this case.
On the respondent’s Motion To Dismiss pursuant to Rule 12(b)(6) in this case, I
may consider the docket and documents in the underlying criminal case, from which King
seeks § 2255 relief, because they are “‘incorporated by reference or integral to [his]
claim,’” Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir. 2012)
(quoting 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1357 (3d ed. 2004)), and because they are “‘necessarily embraced by the
pleadings.’” Whitney v. Guys, Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (quoting Mattes
v. ABC Plastics, Inc., 323 F.3d 695, 697 n.4 (8th Cir. 2003)).
As I have repeatedly explained, § 2255 provides as follows:
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A prisoner in custody under sentence of a court
established by Act of Congress claiming the right to be
released upon the ground [1] that the sentence was imposed
in violation of the Constitution or laws of the United States,
or [2] that the court was without jurisdiction to impose such
sentence, or [3] that the sentence was in excess of the
maximum authorized by law, or [4] is otherwise subject to
collateral attack, may move the court which imposed the
sentence to vacate, set aside or correct the sentence.
28 U.S.C. § 2255; Watson v. United States, 493 F.3d 960, 963 (8th Cir. 2007) (“Under
28 U.S.C. § 2255 a defendant in federal custody may seek post conviction relief on the
ground that his sentence was imposed in the absence of jurisdiction or in violation of the
Constitution or laws of the United States, was in excess of the maximum authorized by
law, or is otherwise subject to collateral attack.”); Bear Stops v. United States, 339 F.3d
777, 781 (8th Cir. 2003) (“To prevail on a § 2255 motion, the petitioner must demonstrate
a violation of the Constitution or the laws of the United States.”). Thus, a motion
pursuant to § 2255 “is ‘intended to afford federal prisoners a remedy identical in scope
to federal habeas corpus.’” United States v. Wilson, 997 F.2d 429, 431 (8th Cir. 1993)
(quoting Davis v. United States, 417 U.S. 333, 343 (1974)); accord Auman v. United
States, 67 F.3d 157, 161 (8th Cir. 1995) (quoting Wilson).
One “well established principle” of § 2255 law, however, is that “‘[i]ssues raised
and decided on direct appeal cannot ordinarily be relitigated in a collateral proceeding
based on 28 U.S.C. § 2255.’” Theus v. United States, 611 F.3d 441, 449 (8th Cir. 2010)
(quoting United States v. Wiley, 245 F.3d 750, 752 (8th Cir. 2001)); Bear Stops, 339
F.3d at 780. Just as § 2255 may not be used to relitigate issues raised and decided on
direct appeal, it also ordinarily “is not available to correct errors which could have been
raised at trial or on direct appeal.” Ramey v. United States, 8 F.3d 1313, 1314 (8th Cir.
1993) (per curiam). “Where a defendant has procedurally defaulted a claim by failing to
raise it on direct review, the claim may be raised in habeas only if the defendant can first
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demonstrate either cause and actual prejudice, or that he is actually innocent.” Bousley
v. United States, 523 U.S. 614, 622 (1998) (internal quotations and citations omitted).
Here, I find that King appealed his sentence of 240 months of imprisonment, based
on a § 851 enhancement for a prior conviction, only on the ground that it was
“unreasonably harsh,” not on the ground that I had failed to conduct the colloquy required
by § 851(b). See Respondent’s Motion To Dismiss, Exhibit 1 (King’s brief on direct
appeal). Consequently, King is attempting to assert a claim that he could have, but failed
to, raise on direct appeal, which is not a basis for relief on a § 2255 motion. Ramey, 8
F.3d at 1314. In short, King’s claim is “procedurally defaulted.” Bousley, 523 U.S. at
622. Neither King nor his counsel has even attempted to assert “cause and prejudice” or
“actual innocence” as a basis for considering King’s procedurally defaulted claim. See
id. Indeed, while King complains that he was not presented with the inquiry and advice
required by § 851(b), he does not assert that he was not guilty of the charged offense in
violation of §§ 841 and 846 or the prior offense in 1993 on which the § 851 enhancement
of his sentence was based. The respondent is entitled to dismissal of King’s § 2255
Motion on the ground that it asserts only a procedurally defaulted claim.
Moreover, considering King’s claim—perhaps with more care than I originally
gave it, on initial review, in my March 13, 2013, Order (docket no. 2)—I now conclude
that it “plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that [King] is not entitled to relief” on his claim that I committed errors
under § 851(b). See Rule 4(b) of the Rules Governing Section 2255 Proceedings. In
United States v. Henderson, 613 F.3d 1177 (8th Cir. 2010), the Eighth Circuit Court of
Appeals considered on direct appeal a defendant’s claim that his sentence should not have
been enhanced pursuant to § 851, “because the district court failed to follow 21 U.S.C.
§ 851(b) procedure.” 613 F.3d at 1184. The court explained that the colloquy required
by § 851 requires the district court to ask the defendant to affirm or deny the prior
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conviction. Id. at 1184-85 (citing § 851(b)).3 The court held that the district court had
erred by not asking the defendant this question. Id. The court then explained,
The district court's error was, however, harmless.
“Although § 851[(c)] allows a defendant to attack a prior
conviction ... [§ 851(e)] precludes challenges to convictions
‘which occurred more than five years before the date of the
information alleging such prior conviction.’” [United States
v.] Rounsavall, 115 F.3d [561,] 566 [(8th Cir. 1997)],
quoting 21 U.S.C. § 851(e); United States v. Samuels, 543
F.3d 1013, 1020 (8th Cir.2008); see also Custis v. United
States, 511 U.S. 485, 487, 114 S.Ct. 1732, 128 L.Ed.2d 517
(1994) (holding that due to statute, defendant cannot
collaterally attack prior convictions used to enhance sentence
unless in violation of the right to counsel). Henderson's
convictions occurred 20 and 16 years before the date of the
information, nullifying any § 851(c) challenge. The district
court’s § 851(b) error did not, therefore, affect his substantial
rights.
Henderson, 613 F.3d at 1185.
Similarly, here, I must accept as true King’s allegation that I did not conduct the
colloquy required by § 851 prior to imposing a sentencing enhancement based on a prior
conviction. See Freitas v. Wells Fargo Home Mortg., Inc., 703 F.3d 436, 438 (8th Cir.
2013); Whitney, 700 F.3d at 1128; Richter v. Advance Auto Parts, Inc., 686 F.3d 847,
3
See 21 U.S.C. § 851(b) (providing, inter alia, that “[i]f the United States attorney
files an information under this section [seeking enhancement of a sentenced based on a
prior conviction, as authorized by § 851(a)], the court shall after conviction but before
pronouncement of sentence inquire of the person with respect to whom the information
was filed whether he affirms or denies that he has been previously convicted as alleged
in the information”). King is also correct that the colloquy required by § 851(b) requires
that the district court “shall inform [the defendant] that any challenge to a prior conviction
which is not made before sentence is imposed may not thereafter be raised to attack the
sentence.” 28 U.S.C. § 851(b).
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850 (8th Cir. 2012). Indeed, the record of prior proceedings shows conclusively that I
did not conduct that colloquy at King’s sentencing. See Transcript of Sentencing (Crim.
docket no. 40); Rule 4(b) of the Rules Governing Section 2255 Proceedings (permitting
the court, on initial review of a § 2255 motion, to consider, inter alia, “the record of
prior proceedings”); Miller, 688 F.3d at 931 n.3 (permitting a court to consider, on a
Rule 12(b)(6) motion to dismiss, the docket and documents in a prior court case, because
they are “‘incorporated by reference or integral to [a plaintiff’s] claim’”); Whitney, 700
F.3d at 1128 (permitting a court to consider, on a motion to dismiss, documents that are
“necessarily embraced by the pleadings”). Nevertheless, my failure to do so, while not
acceptable, was harmless as a matter of law, because the 1993 conviction on which the
enhancement of King’s sentence was based was already more than 5 years old when the
information alleging a prior conviction was filed in his criminal case on May 8, 2008.
See Information (Crim. docket no. 22); see also Indictment (Crim. docket no. 1) (also
identifying
this
prior
conviction).
Consequently,
that
prior
conviction
was
“unchallengeable” pursuant to § 851(e). Henderson, 613 F.3d at 1185. Because King
plainly is not entitled to relief on his claim, that claim is also dismissed pursuant to Rule
4(b) of the Rules Governing Section 2255 Proceedings.
Finally, I conclude that King has failed to make a substantial showing that his
§ 2255 claim is debatable among reasonable jurists, that a court could resolve that claim
differently, or that his claim deserves further proceedings. Consequently, a certificate of
appealability is also denied. See 28 U.S.C. § 2253(c)(1)(B); Miller-El v. Cockrell, 537
U.S. 322, 335-36; Cox v. Norris, 133 F.3d 565, 569 (8th Cir. 1997), cert. denied, 525
U.S. 834 (1998).
THEREFORE,
1.
The respondent’s May 1, 2013, Motion To Dismiss Petitioner’s Motion
Under 28 U.S.C. § 2255 (Civ. docket no. 3) is granted;
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2.
This action is dismissed with prejudice as procedurally defaulted and as
asserting a claim upon which the petitioner plainly is not entitled to relief as a matter of
law;
3.
Judgment shall issue accordingly; and
4.
No certificate of appealability will issue.
IT IS SO ORDERED.
DATED this 9th day of May, 2014.
______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA
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