Stanley #12933-040 v. United States of America

Filing 14

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

S t a n l e y #12933-040 v. United States of America

D o c . 14

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

C A R M E L L JAWAN STANLEY, M o v a n t, File No. 1:08-CV-173 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 Carmell Stanley'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, this motion will be denied. I. M o v an t was indicted on July 12, 2006, for: (1) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1); and (2) possessing with intent to distribute five or more g ra m s of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). Movant p le a d ed guilty on October 31, 2006, pursuant to a written plea agreement in which he agreed to waive the right to challenge his sentence, either on appeal or by collateral attack. After ta k in g into account the 15.7 grams of cocaine base Movant possessed and converting $6273 o f Movant's money into 62.73 grams of cocaine base, this Court, on February 16, 2007, s e n te n c ed Movant to 120 months of incarceration as to Count 1 and 135 months of

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inca rce ratio n as to Count 2, to be served concurrently. Movant was sentenced to three years o f supervised release for Count 1 and four years for Count 2, also to be served concurrently. U n ite d States v. Stanley, File No. 1:06-CR-162 (W.D. Mich. Feb. 16, 2007). Movant did not a p p e al his conviction or sentence. M o v a n t filed his § 2255 motion on February 21, 2008. (Dkt. No. 1.) On March 13, 2 0 0 8 , the government moved to dismiss his motion, claiming both that Movant knowingly a n d voluntarily waived his right to collateral attack in his plea agreement and that the motion w as filed after the statute of limitations had run.1 (Dkt. No. 6, Mot. to Dismiss.) This Court d e n i e d the government's motion to dismiss but also acknowledged that three of Movant's c la im s were barred by the waiver contained in Movant's plea agreement. (Dkt. Nos. 9, 10.) T h is Court ordered the government to respond to the remaining claim of ineffective a ss is ta n c e of counsel, to which the government replied on August 2, 2010. (Dkt. Nos. 10, 1 2 .) Movant claims ineffective assistance of counsel due to Counsel's failure to properly e x p lain essential elements of the charge and the proper range of sentencing exposure. (Dkt. N o . 1.) Specifically, Movant asserts that Counsel told him that he would be sentenced to no m o re than 87 months (Dkt. No. 3) but he was instead sentenced to 135 months based on the

The government's statute of limitations argument is meritless. The Sixth Circuit does n o t consider a judgment final until the time period for appeal expires. Sanchez-Castellano v . United States, 358 F.3d 424, 427 (6th Cir. 2004). Thus, Movant's judgment became final o n February 26, 2007, ten days after he was sentenced, and he had until February 26, 2008, to file his § 2255 motion. 2

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s e n te n c in g range determined by the pre-sentence report. Stanley, File No. 1:06-CR-162 (W .D . Mich. Feb. 16, 2007). II. T o prevail on a § 2255 motion "a petitioner must demonstrate the existence of an error o f constitutional magnitude which had a substantial and injurious effect or influence on the g u ilty plea or the jury's verdict." Humphress v. United States, 398 F.3d 855, 858 (6th Cir. 2 0 0 5 ) (quoting Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)). Non-

co n stitutio n al errors are generally outside the scope of § 2255 relief. United States v. C o field , 233 F.3d 405, 407 (6th Cir. 2000). A petitioner can prevail on a § 2255 motion a lleg in g non-constitutional error only by establishing a "fundamental defect which inherently r e s u l t s in a complete miscarriage of justice, or, an error so egregious that it amounts to a v io la tio n of due process." Watson v. United States, 165 F.3d 486, 488 (6th Cir. 1999) (q u o tin g United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal quotation m a rk s omitted)). 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

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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. 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(b). Where the judge considering the § 2255 motion also conducted the trial, th e judge may rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 2 2 7 , 235 (6th Cir. 1996). III. M o v a n t seeks relief based on ineffective assistance of counsel for failure to properly e x p lain essential elements of the charge and the proper range of sentencing exposure. (Dkt. N o . 1.) To make out a claim of ineffective assistance of counsel, Movant must show that C o u n s e l's representation fell below an objective standard of reasonableness, and that C o u n s e l's deficient performance prejudiced Movant. Strickland v. Washington, 466 U.S. 6 6 8 , 687-88 (1984). Movant claims that he pled guilty based on his understanding that he would receive " n o more than an 87 month sentence." (Dkt. No. 3, Aff. of Carmell Stanley.) He stated that i f he had known "he could receive 135[ months] . . . he would have insisted on going to tria l." (Dkt. No. 8, Reply to Government Resp.) To show deficient assistance, Movant relies o n Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001), which held that the defense

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co u n sel's erroneous advice concerning sentence exposure "fell below an objective standard o f reasonableness under prevailing professional norms." A criminal defendant has a right to expect at least that his attorney will review th e charges with him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and e x p la in the sentencing exposure the defendant will face as a consequence of e x e rc is in g each of the options available. In a system dominated by sentencing g u id e lin e s, we do not see how sentence exposure can be fully explained w ith o u t completely exploring the ranges of penalties under likely guideline sc o rin g scenarios, given the information available to the defendant and his la w ye r at the time. Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003). The case at hand can be distinguished from Magana. Whereas in Magana the defense c o u n se l demonstrated "complete ignorance of the relevant law under which his client was c h a rg e d " and gave "gross misadvice," in this case Counsel's alleged deficiency is not as e x tre m e . Id. at 548. Movant contends that Counsel never told him that the court could c o n v e rt his money into drugs for sentencing purposes and give him a higher sentence than th e estimated range of 70-87 months. (Dkt. No. 2, 8.) The record is unclear as to whether C o u n s e l did communicate the alleged range to Movant or how Counsel arrived at that range. It appears probable that if Counsel did inform Movant of the 70-87 month sentencing range, s h e did not take into account the possibility of conversion.2

Pursuant to U.S.S.G. § 2D1.1(c)(7), the offense level for possession of 15.7 grams o f cocaine base is 26. As a result of conversion, the base offense level became 32 for p o s s e ss io n of 78.43 grams of cocaine base. U.S.S.G. § 2D1.1(c)(4). After a two level e n h a n ce m e n t for possession of a firearm (U.S.S.G. § 2D1.1(b)(1)) and a three-level reduction (c o n tin u e d ...) 5

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W h ile "[f]amiliarity with the structure and basic content of the Guidelines . . . has b e c o m e a necessity for counsel who seek to give effective representation," United States v. M e rr itt, 102 F. App'x 303, 308 (4th Cir. 2004) (quoting United States v. Day, 969 F.2d 39, 4 3 (3d Cir. 1992), plea agreements are generally held to be knowing and voluntary n o tw ith s ta n d in g "a defense attorney's erroneous calculation and prediction of the sentencing g u id e lin e s." United States v. Hicks, 4 F.3d 1358, 1363 n. 3 (6th Cir. 1993) (citing United S t a t e s v. Stephens, 906 F.2d 251, 254 (6th Cir. 1990)). Failure of defense counsel to a c c u ra te ly predict a sentence does not constitute defective performance. See Sullivan v. U n ite d States, 11 F.3d 573 (6th Cir. 1993); United States v. Khouri, 169 Fed. App'x. 459 (6 th Cir. 2006); Stephens, 906 F.2d at 254 (holding that "[t]he fact that the range was . . . e stim a te d incorrectly by his counsel[ ]does not justify withdrawing his plea."). However, the a lle g e d deficiency in this case goes beyond inaccurate prediction. Counsel allegedly did not a d e q u a te ly understand or explain the range of possible sentencing outcomes. (Dkt. No. 1.) If Counsel failed to inform Movant about the possibility of conversion, then Counsel's c o n d u c t may have fallen below an objectively reasonable standard. See Moss v. United S ta te s, 323 F.3d 445, 474 (6th Cir. 2003) (finding that failure to adequately explain a

(...continued) f o r acceptance of responsibility and timely notification of a guilty plea (U.S.S.G. §§ 3E1.1(a) a n d 3E1.1(b)), the offense level becomes 25 without the conversion and 31 with the c o n v e rs io n . Under criminal history level III, the advisory sentence for offense level 25 is 708 7 months. 6

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d e f e n d a n t's sentencing exposure "may constitute deficient assistance" under certain c irc u m s ta n c es ) (quoting Magana, 263 F.3d at 550). Nevertheless, Movant fails to show that he was prejudiced by Counsel's performance. T o establish prejudice, the Movant must show a reasonable probability that Counsel's errors a f f e c te d the outcome of the proceeding. Strickland, 466 U.S. at 691-96. "In the context of a n allegedly involuntary guilty plea, prejudice can be demonstrated by showing that `but for c o u n se l's errors, [the petitioner] would not have pleaded guilty.'" Anderson v. Carlton Hill, 1 5 0 F. App'x 499, 501 (6th Cir. 2005) (quoting Hill v. Lockhart, 474 U.S. 52, 59 (1985)). In Magana, the court determined prejudice based on both the disparity in sentencing, a n d the defendant's statement that he only went to trial based on the advice of counsel. M a g a n a , 263 F.3d at 551; See United States v. Gordon, 156 F.3d 376, 381 (2nd Cir. 1998) (s ta tin g that the "disparity between the actual maximum sentencing exposure under the S e n te n c in g Guidelines and the sentence exposure represented by defendant's attorney p ro v id e s sufficient evidence to establish a reasonable probability that the outcome of the p ro c e ed in g s would differ."). Movant submitted an affidavit swearing that he would not have a c c e p te d the plea agreement if he had been aware he could face 135 months. (Dkt. No. 8.) H e claimed that he had no "understanding that he could possibly receive" more than the 87 m o n ths. (Dkt. No. 8, 2.) Despite Movant's assertions, any misleading information provided to him was " re m e d ie d by the plea colloquy." Boyd v. Yukins, 9 Fed. App'x 699, 703, 705 (6th Cir.

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2 0 0 4 ).3 Prior to the plea hearing, Movant was given the plea agreement itself, which c o n ta in e d the accurate sentencing range. (File No. 1:06-CR-162, Dkt. No. 19, Plea Agmt.) A t the plea colloquy, the court questioned Movant at length to ensure he understood that any p re d ic tio n s or promises that had been made to him do not bind the court. (File No. 1:06-CR1 6 2 , Dkt. No. 22, Plea Tr., 4-5.) The court also explicitly told Movant that his counsel " c erta in ly cannot guarantee you that her calculations will be correct." (Plea Tr., 7.) Movant re sp o n d e d that he understood those warnings. (Plea Tr., 19, 28-29.) Even assuming that C o u n s e l provided inaccurate information, "the trial court remedied any misconception by in f o rm in g [Movant] of the potential maximum and minimum terms of imprisonment." Boyd, 9 9 Fed. App'x at 703. Movant's allegation that he did not know the possible sentencing r a n g e is contradicted by the record. Movant was "fully aware that his ultimate sentence u n d e r the agreement was subject to later determination by the court based on a variety of fa ctors at the time he entered into it" and therefore Movant was not prejudiced by Counsel's in a c c u ra te estimations. See Stephens, 906 F.2d at 254. The files and records in this case conclusively show that Movant is entitled to no relief u n d e r § 2255. Accordingly, no evidentiary hearing is required to resolve the merits of the p e n d in g motion. For the reasons stated herein, Movant's motion to vacate, set aside, or

See Ramos v. Rogers, 170 F.3d 560, 566 (6th Cir. 1999) (stating that "[i]f we were to rely on Ramos's alleged subjective impression rather than the record, we would be re n d e rin g the plea colloquy process meaningless, for any convict who alleges that he believed th e plea bargain was different from that outlined in the record could withdraw his plea, d e s p ite his own statement during the plea colloquy."). 8

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c o rre c t his sentence pursuant to 28 U.S.C. § 2255 will be denied and Movant's motion for a n order to grant his § 2255 will also be denied. Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a c e r t i f ic a te of appealability to Movant. To warrant a grant of a certificate of appealability, M o v a n t "must demonstrate that reasonable jurists would find the district court's assessment o f the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 ( 2 0 0 0 ) . The Sixth Circuit Court of Appeals has disapproved of the issuance of blanket d e n ia ls of a certificate of appealability. Murphy v. Ohio, 263 F.3d 466, 467 (6th Cir. 2001). R a th e r, the district court must "engage in a reasoned assessment of each claim" to determine w h e th e r a certificate is warranted. Id. Upon review of each claim, the Court does not believe th a t reasonable jurists would find its assessment of Movant's claims to be debatable or w r o n g . Accordingly, a certificate of appealability will also be denied as to each claim. A n order and judgment consistent with this opinion shall be entered.

Dated: December 1, 2010

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

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