Eason #20931-424 v. United States of America

Filing 15

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

U N I T E D STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

A N T H O N Y EASON, M o v a n t, File No. 1:07-CV-674 v. H O N . ROBERT HOLMES BELL U N IT E D STATES OF AMERICA, R e sp o n d e n t. / OPINION T h is matter comes before the Court on Anthony Eason's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this Court. For the re a so n s that follow the motion will be denied. I. O n May 9, 1996, Eason was charged in an indictment with conspiring to distribute and p o s s e s s with intent to distribute cocaine and crack cocaine in violation of 21 U.S.C. § § 841(a)(1) and 846 (the "Curtis conspiracy"). United States v. Eason, File No. 1:96-CR-72 ( W .D . Mich.) (Dkt. No. 1.) On November 19, 1996, Eason was charged in a second su p e rse d in g indictment in a separate case with conspiring to distribute and possess with in te n t to distribute cocaine, crack cocaine, and marijuana in violation of 21 U.S.C. § § 841(a)(1) and 846 (the "Ross conspiracy"). United States v. Ross, File No. 1:96-CR-84 1

(W .D . Mich.) (Dkt. No. 112).1 An arrest warrant was issued, but Eason was not arrested p rio r to the March 1997 jury trial of his co-defendants. A third superseding indictment was f ile d on August 25, 2004, charging Eason with the Ross conspiracy, the Curtis conspiracy, a n d one count of engaging in a continuing criminal enterprise in violation of 21 U.S.C. § 848. (D k t. No. 421.) Eason was arrested on September 1, 2004, in Chicago, Illinois. (Dkt. No. 4 2 2 .) The Court initially appointed Attorney Lawrence Phelan to represent Eason. (Dkt. N o . 430.) On November 2, 2004, the Court granted Attorney Phelan's motion to withdraw d u e to a conflict of interest. (Dkt. No. 450.) The Court also granted an ends of justice

c o n tin u a n c e in order to provide new counsel sufficient time to prepare for trial or other d is p o s itio n of the case. (Id.) On November 9, 2004, the Court appointed Attorney John K ara fa to represent Eason. (Dkt. No. 455.) Eason's jury trial commenced on January 10, 2005. The trial included the testimony o f nineteen co-conspirators. On January 14, 2005, the jury returned its verdict finding Eason g u ilty on all three counts of the third superseding indictment. (Dkt. No. 490.)2 Eason was s e n te n c e d to forty years in custody and five years of supervised release. (Dkt. No. 539.) E a s o n 's conviction and sentence were affirmed on appeal. United States v. Eason, No. 051

Unless otherwise indicated, all docket numbers in this opinion refer to the docket for F ile No. 1:96-CR-84. The indictment against Eason in File No. 1:96-CR-72 was dismissed on July 5, 2005, in light of his conviction in the related criminal case in File No. 1:96-CR-84. (File No. 1:96C R -72 , Dkt. No. 292.) 2
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1 8 7 4 , slip copy (6th Cir. July 14, 2006) (File No. 1:96-CR-84, Dkt. No. 580). Eason timely f ile d this § 2255 motion on July 16, 2007. II. A prisoner who moves to vacate his sentence under § 2255 must show that the s e n te n c e was imposed in violation of the Constitution or laws of the United States, that the c o u rt was without jurisdiction to impose such sentence, that the sentence was in excess of the m a x im u m authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. To prevail on a § 2255 motion "a petitioner must demonstrate the existence of an e rro r of constitutional magnitude which had a substantial and injurious effect or influence o n the guilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th C ir. 2005) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). As a general rule, claims not raised on direct appeal are procedurally defaulted and m a y not be raised on collateral review unless the petitioner shows either 1) "cause" and " a ctu a l prejudice" or 2) "actual innocence." Massaro v. United States, 538 U.S. 500, 504 (2 0 0 3 ); Bousley v. United States, 523 U.S. 614, 621-22 (1998); United States v. Frady, 456 U .S . 152, 167-68 (1982). An ineffective assistance of counsel claim, however, is not subject to the procedural default rule. Massaro, 538 U.S. at 504. An ineffective assistance of c o u n s e l claim may be raised in a collateral proceeding under § 2255, whether or not the p e titio n e r could have raised the claim on direct appeal. Id.

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A court is generally required to grant a hearing to determine the issues and make f in d in g s of fact and conclusions of law on a § 2255 motion "[u]nless the motion and the files a n d records of the case conclusively show that the prisoner is entitled to no relief . . . ." 28 U .S .C . § 2255. No evidentiary hearing is required if the petitioner's allegations "cannot be a c ce p te d as true because they are contradicted by the record, inherently incredible, or c o n c lu s io n s rather than statements of fact." Valentine v. United States, 488 F.3d 325, 333 (6 th Cir. 2007) (quoting Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999)). W h e re the judge considering the § 2255 motion also conducted the trial, the judge may rely o n his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1 9 9 6 ). III. E a so n seeks relief based upon four separate claims of ineffective assistance of c o u n se l. He alleges that counsel was ineffective for failing to attempt to obtain a plea a g re e m e n t, for failing to advise him of his right to testify, for failing to raise a Batson c h a lle n g e during jury selection, and for failing to move for a continuance. To make out a claim of ineffective assistance of counsel, a petitioner must show that c o u n se l's representation fell below an objective standard of reasonableness, and that he was p re ju d ic e d by counsel's deficient performance. Strickland v. Washington, 466 U.S. 668, 6 8 7 -8 8 (1984). "The benchmark for judging any claim of ineffectiveness must be whether c o u n se l's conduct so undermined the proper functioning of the adversarial process that the tria l cannot be relied on as having produced a just result." Id. at 686. 4

A . Plea Agreement E a so n 's first contention is that counsel was ineffective for failing to attempt to obtain a plea agreement. Eason contends that Attorney Karafa advised him that there was no plea o f f e r and that he would not attempt to seek a plea offer. Eason has acknowledged that his first attorney, Attorney Phelan, advised him on more th a n five occasions that a plea offer was available. (Dkt. No. 1, § 2255 Mot. 5.) Attorney K a ra f a reviewed Attorney Phelan's file documents, including a letter Phelan sent to Eason d a te d October 27, 2004, explaining that the plea agreement Phelan had negotiated with the g o v e rn m e n t would only stay open until Thursday, October 28, 2004, and that if Eason did n o t enter a plea on that date, the only plea that the government would accept was a plea to th e indictment. (Dkt. No. 7, Gov.'s Resp., Karafa Aff. ¶ 9.) A change of plea hearing was s c h e d u le d for October 28, 2004, but although the parties appeared in court on that date, E a so n did not enter a plea. (Dkt. No. 446, 10/28/04 Mins.) Attorney Phelan advised A tto rn e y Karafa of his efforts to arrive at a reasonable plea disposition in this case and E a so n 's refusal to accept the plea offers. (Karafa Aff. ¶¶ 10-11.) The government advised A tto rn e y Karafa on November 8, 2004, that the "great deal" it had offered Eason was no lo n g e r available because Eason's proffer session did not go well. (Karafa Aff. ¶ 13.) On D e c em b e r 17, 2004, the government further advised that it would not entertain any plea n e g o tia tio n s unless Eason "really wants to come to the table and fess up." (Karafa Aff. ¶ 15.) A tto rn e y Karafa states that he visited Eason in jail the same day to discuss weighing the o p tio n s of trial versus a plea. According to Karafa, Eason became agitated and repeatedly 5

in te rru p te d and deviated from the topic of plea negotiations. (Karafa Aff. ¶¶ 16-29 and 1 2 /1 7 /0 4 memo to file.) Attorney Karafa noted in his memo to the file that during the course o f the December 17, 2004, meeting Eason made it "very clear" that "he would not cooperate w ith anyone under any circumstances, that he's not going to enter into a plea agreement and th a t he would rather face life imprisonment than 20 years in any event, and that he will go to trial and spend his time filing lawsuits, contacting the ACLU, etc." (Id.) Based upon his re v ie w of the file, as well as his discussions with Eason, Attorney Phelan, and the g o v e rn m e n t, Attorney Karafa concluded that Eason "absolutely rejected the idea of pleading g u ilty pursuant to a plea agreement with the government." (Karafa Aff. ¶ 20.) According to Attorney Karafa, Eason never requested him to pursue or reopen plea discussions. (Id.) A t the final pretrial conference on January 4, 2005, Attorney Karafa advised the Court in E a so n 's presence that he had discussed the subject of plea negotiations with Eason, but that their discussions did not yield any proposals to bring to the government. (Dkt. No. 547, Tr. o f Final Pretrial Conf. 45.) The Court subsequently addressed Eason directly regarding his c o m p la in ts about his attorney's alleged conflict of interest. (Id. at 50-52.) Eason raised a n u m b e r of issues with the Court, but he did not suggest that he wanted to enter into plea n e g o tia tio n s . While the Court is aware that "[a] defense attorney's failure to notify his client of a p ro s e c u to r's plea offer constitutes ineffective assistance of counsel," Griffin v. United States, 3 3 0 F.3d 733, 737 (6th Cir. 2003), the Court is not aware of any authority to suggest that the f a ilu re to "attempt to obtain" a plea agreement constitutes ineffective assistance of counsel. 6

In any event, even if the Court were to accept Eason's assertion that counsel failed to attempt to obtain a plea agreement, and even if the Court were to find that such failure fell below an o b je c tiv e standard of reasonableness, Eason nevertheless cannot show any prejudice s te m m in g from that failure. Given Eason's admitted rejection of five previous plea offers, th e failure of his proffer session, the government's ultimatum with respect to its October 28 p le a offer, and Eason's failure to contradict his attorney's representation in open court that th e y had discussed plea negotiations, the record does not support Eason's suggestion that he w o u ld have entered into a plea but for counsel's alleged failure to initiate plea negotiations. A lth o u g h Eason has stated, under penalty of perjury, that counsel's failure to seek a plea o f f e r was against Eason's wishes, (Dkt. No. 1, § 2255 Mot. at 5), this statement is c o n tra d ic te d by the record and is inherently incredible. B. Right to Testify E a so n asserts that counsel ineffectively failed to advise him of his right to testify on h is own behalf and improperly coerced him to relinquish his right to testify in his own d e f e n se at trial. (§ 2255 Mot. 6; Dkt. No. 12, Reply Br. 4.) Eason also states in his affidavit th a t he did not knowingly and intelligently waive the right to testify. (Reply Br., Eason Aff. ¶ 8.) According to Eason, if he had testified he could have directly contradicted the g o v e rn m e n t's witnesses' testimony that he was selling drugs in Indiana and that he had p o sses sed firearms. (Reply Br. 4-5.) Eason's assertions are contradicted by the record. This Court had a lengthy colloquy w i th Eason on the record at which time Eason assured the Court that he had discussed his 7

rig h t to testify with counsel, that he understood this right, and that he was choosing to remain sile n t: THE COURT: Do you understand that you have the right to take the witness s ta n d on your own behalf in this matter and give testimony? D E F E N D A N T EASON: Yes. T H E COURT: Do you understand that you could be questioned by your a tt o rn e y about matters relevant to this case and the government would then h a v e an opportunity to cross-examine you as to those facts and circumstances? D o you understand that? D E F E N D A N T EASON: Yes. T H E COURT: And what is your desire as it pertains to testifying or not t e s t i f yi n g ? D E F E N D A N T EASON: I'd rather not testify. T H E COURT: Now, in saying you would rather not testify, you understand th a t you would be then what we call giving up the right to testify; is that right? D E F E N D A N T EASON: Yes. T H E COURT: Do you have any questions about that right which you would b e giving up? D E F E N D A N T EASON: No. T H E COURT: Okay. Mr. Karafa, are there any additional questions that you b e liev e the Court should ask of your client as it relates to that? M R . KARAFA: I don't believe so, Your Honor. I have talked with Mr. Eason q u ite extensively about his options and his constitutional rights with regard to b o th testifying and not testifying, and I believe the Court has adequately a d d re ss e d the matter at this point. T H E COURT: You understand, Mr. Eason, in your not testifying, no one can c o m m e n t about your not testifying, and the jury will be so advised of that? 8

D E F E N D A N T EASON: Yes. T H E COURT: You understand that? D E F E N D A N T EASON: Yes, sir. T H E COURT: Any questions about that that I can answer for you? D E F E N D A N T EASON: Well, a lot of things changed in my life, and by me te stif yin g , I can't even recall a lot of things back in 1990 and '91 and '92 and '9 3 because a lot of people saying that they was knowing me in '96 and '95, I w a s n 't even in the western -- in the Midwest living. I wasn't even here. I m e a n , I was -- I was -- I pursued an acting career in California. I was in "The R a c i n g " with Arnold Swartzenegger and Vanessa Williams, I played the C h i c a g o police on "ER", I was a California ironworker for Local 433. My last jo b was at the stadium where the Lakers play at. I was working. I changed my lif e . I mean, I don't know why they saying all these things. T H E COURT: Okay. I can appreciate that. But you understand that if you tes tify, you can tell the jury all these things, but if you do not testify, you could n o t be cross-examined and no comment could be made about your failure to t e s t i f y? D E F E N D A N T EASON: Could you repeat that? I -T H E COURT: You understand that you have the right to testify in this case? D E F E N D A N T EASON: Uh-huh. Yes, sir. Yes, Your Honor. T H E COURT: But you have the right to remain silent. DEFENDANT EASON: I'd rather remain silent. T H E COURT: Okay. You've given this some thought? D E F E N D A N T EASON: Yes, because I can't remember a lot. r e m e m b e r a lot of things. I can't

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(D k t. No. 551, Tr. IV at 48-50.)3 If a defendant disagrees with counsel's advice not to testify, he must alert the court a b o u t that desire or waive his right to testify: A defendant who wants to testify can reject defense counsel's advice to the c o n tra ry by insisting on testifying, communicating with the trial court, or d is c h a rg in g counsel. At base, a defendant must "alert the trial court" that he d e sire s to testify or that there is a disagreement with defense counsel regarding w h e th e r he should take the stand. When a defendant does not alert the trial c o u rt of a disagreement, waiver of the right to testify may be inferred by the d e f e n d a n t's conduct. Waiver is presumed from the defendant's failure to te s tif y or notify the trial court of the desire to do so. Gonzales v. Elo, 233 F.3d 348, 356-57 (6th Cir. 2000) (citations omitted). Eason was p ro v id e d with an ample opportunity to advise the Court of his desire to testify or his d is a g re e m e n t with counsel's recommendation not to testify. By failing to do so he waived h i s right to testify or to object to counsel's strategy. There is nothing in the record to suggest th a t Eason's waiver of his right to testify was coerced or that he did not knowingly and in te llig e n tly waive the right to testify. C. Batson Challenge E a so n contends that his counsel was ineffective for failing to raise a Batson 4 challenge w h e n the government struck each black juror from the jury panel during jury selection. E a so n has not identified which of the prospective jurors were black. The most specificity he

The trial transcript consists of four volumes. (Dkt. Nos. 548-551.) The trial tra n sc rip ts will be referenced as "Tr." followed by the volume number and page number, e.g. " T r . IV at 47."
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Batson v. Kentucky, 476 U.S. 79 (1986). 10

h a s offered is that one black juror stated that her brother was convicted, and she was struck f ro m the panel as a result. The record does not indicate which, if any, of the prospective jurors who were seated in the jury box during voir dire were black. The record does indicate that Juror Lopez stated th a t her brother had been convicted for conspiracy and deported to the Dominican Republic a n d that she was excused. (Tr. I at 27-28.) Contrary to Eason's assertions, the government d id not exercise a peremptory challenge to remove this juror. The Court excused this juror f o r cause because she stated that her conscience did not allow her to judge anybody (Tr. I a t 29-30.) The government exercised six peremptory challenges, but there is no evidence in th e record to suggest that any one of these potential jurors was black. (Tr. I at 41, 46, 50, 59, 6 8 , 69). Neither Attorney Karafa nor the government recall the government striking any ju ro rs of a racial minority. (Karafa Aff. ¶ 43; Gov.'s Resp. 9.) In fact, when Attorney Karafa raised an objection to the representation of the jury panel, he noted on the record that there w e re only two people of color, both of whom were removed for cause. (Tr. I at 72.) The re c o rd simply does not support Eason's assertion that counsel was ineffective for failing to ra is e a Batson challenge because there is no evidence that the government used any p ere m p tory challenges to excuse a single juror of color. D . Continuance E a s o n contends that counsel was ineffective for failing to move for a continuance so a s to investigate, interview and call witnesses. Eason contends that because Attorney Karafa d i d not consult with him until mid-December, and because of the intervening holidays, 11

A tto rn e y Karafa could not have adequately prepared his case in such short time. Eason cites U n ited States v. Cronic, 466 U.S. 648 (1984), in support of the proposition that appointment o f counsel close to the start of trial amounts to a denial of effective assistance of counsel. Eason's reliance on Cronic is misplaced. In Cronic the Court observed that it had p re su m e d prejudice in Powell v. Alabama, 287 U.S. 45 (1932), when there was an indefinite a p p o in tm e n t of defense counsel a mere six days before a trial on a highly publicized capital c a s e against multiple young, illiterate defendants. Id. at 660. "Powell was thus a case in w h ic h the surrounding circumstances made it so unlikely that any lawyer could provide e f f e c tiv e assistance that ineffectiveness was properly presumed without inquiry into actual p e rf o rm a n c e at trial." Cronic, 466 U.S. at 661. The Supreme Court emphasized that "only w h e n surrounding circumstances justify a presumption of ineffectiveness can a Sixth A m e n d m e n t claim be sufficient without inquiry into counsel's actual performance at trial." C ro n ic , 466 U.S. at 662. The circumstances of this case do not come close to the circumstances that justified th e presumption of ineffectiveness in Powell. Attorney Karafa was appointed to represent E aso n two months before trial. Attorney Karafa had the benefit of Attorney Phelan's p re lim in a ry work on the case, (Karafa Aff. ¶ 9), and, as noted by Eason, he also had the b e n e f it of transcripts of the testimony of the government's witnesses from previous trials. T h e re is no basis for presuming that Attorney Karafa needed additional time to prepare for tr ia l.

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In Cronic the Supreme Court reiterated that apart from those situations where counsel w a s "totally absent" or "counsel entirely fails to subject the prosecution's case to meaningful a d v e rsa ria l testing," or other circumstances of such magnitude, "there is generally no basis fo r finding a Sixth Amendment violation unless the accused can show how specific errors o f counsel undermined the reliability of the finding of guilt." Id. at 659 nn. 25, 26. The specific errors Eason relies on in his motion are counsel's failure to interview s e v e ra l unidentified witnesses who could have provided an alibi defense and from whom E aso n states he had obtained affidavits, and counsel's failure to investigate the government's w itn esse s to show that they had no prior connection to the case. (§ 2255 Mot. 9.) According to Attorney Karafa, Eason refused to discuss any potential defense w i t n e s s e s in any detail because he did not want them contacted or getting involved. This in c lu d e d a refusal to divulge the name of the person he indicated he had been living with in C alifo rnia. (Karafa Aff. ¶ 12.) It was only after Attorney Karafa denied having received names of witnesses from E a so n that Eason submitted, in his reply brief, affidavits of three individuals who he contends c o u ld have provided him an alibi. Specifically, Eason has provided affidavits signed in 2007 f ro m Angela Spencer, his common law wife, and Percy Perkins, his father, who state that P e titio n e r was living in California during the relevant time frame, and Evelyn Boyles, the m o th e r of his child, who states that Eason had not been in Michigan since 1991. None of th e s e affidavits indicate that the signers provided affidavits or otherwise advised Attorney K a ra f a prior to trial that they could give this testimony. The affidavits accordingly do not 13

re f u te Attorney Karafa's statement that Eason provided no names of potential witnesses prior to trial. The record does indicate that Eason provided one affidavit to counsel prior to trial. T o n y Terry testified at trial that Eason attempted to have him sign a false affidavit indicating th a t he had never been involved in drug dealings with Eason, and that Eason tried to in tim id a te him into falsely denying knowledge of Eason's drug activities. (Tr. I at 189-93.) W h en shown an affidavit produced by Eason that was purportedly signed by Terry, Terry d en ied that the signature was his own. (Tr. I at 202-04). T h e Court specifically asked Eason on the record about his choice not to call w itn e s s e s at trial. THE COURT: Mr. Eason, if would you please stand. You've heard the s ta te m e n t from your lawyer that he does not intend to produce evidence; is that c o rre c t? D E F E N D A N T EASON: Yes. T H E COURT: Do you agree with that? D E F E N D A N T EASON: Yes. (T r. IV at 47.) Later the Court inquired if there were witnesses that Mr. Eason would have d e sire d to have called or evidence that he would have desired to have presented: DEFENDANT EASON: Yes, but -- yes, there was some, there was a few w itn e ss e s I would like to have had called, and there was a procedure that I had s u g g e ste d to Mr. Karafa that we should have taken by me being identified, like a lot of people don't even know me.

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(T r. IV at 50.) Eason then focused on his idea of having someone else sit in for him at trial in order to test the witnesses' ability to identify him in court. (Tr. IV at 51-52.) He did not id e n tif y any witnesses he would have desired to have called to testify. The Court concludes that Eason's contention that counsel was ineffective for failing to seek a continuance to enable him to investigate, interview and call witnesses is vague, c o n c lu s o ry, and contradicted by the record. IV. T h e files and records in this case conclusively show that the Eason is entitled to no re lie f under § 2255. Accordingly no evidentiary hearing is required to resolve the merits of th e pending motion. For the reasons stated herein, Eason's motion to vacate, set aside or c o rre c t sentence pursuant to 28 U.S.C. § 2255 must be denied. An order consistent with this o p in io n will be entered.

Dated: October 30, 2008

/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE

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