Stanley #12933-040 v. United States of America

Filing 9

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

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 #12933-040, 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 the government's motion to dismiss Movant C a rm e ll Jawan Stanley's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sen tenc e imposed upon him by this Court. (Dkt. No. 6.) I. M o v a n t was indicted on July 12, 2006, for: (1) being a felon in possession of a f ire a rm in violation of 18 U.S.C. § 922(g)(1); and (2) possessing with intent to distribute five o r more grams of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii). M o v a n t pleaded guilty pursuant to a written plea agreement in which he agreed to waive the rig h t to challenge his sentence, either on appeal or by collateral attack. Following a plea h e a rin g on October 31, 2006, United States Magistrate Judge Hugh W. Brenneman, Jr., re c o m m e n d e d that the Court accept Movant's plea pursuant to the plea agreement. (File No. 1 :0 6 - C R -1 6 2 , Dkt. No. 15.) At Movant's sentencing hearing on February 16, 2007, this

C o u rt indicated that it would convert the $6,273 found in Movant's possession into 62.73 g ram s of cocaine base, to be added to the 15.7 grams of cocaine base found in Movant's p o s s e ss io n , and sentence Movant to 120 months of incarceration as to Count 1 and 135 m o n th s of incarceration as to Count 2, to be served concurrently. On February 18, 2007, the C o u rt entered the judgment of sentence. (File No. 1:06-CR-162, Dkt. No. 26, J.). Movant d id not file an appeal. Movant filed his § 2255 motion on February 21, 2008. On March 13, 2008, the g o v e rn m e n t moved to dismiss this motion, claiming both that the motion was filed after the s ta tu te of limitations had run and that Movant had knowingly and voluntarily waived his right to collateral attack in his plea agreement. (Dkt. No. 6.) II. T o 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)). Nonco 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 lle g in g non-constitutional error only by establishing a "`fundamental defect which in h e re n tly results in a complete miscarriage of justice, or, an error so egregious that it a m o u n ts to a violation of due process.'" Watson v. United States, 165 F.3d 486, 488 (6th Cir.

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1 9 9 9 ) (quoting United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (internal q u o ta tio n marks 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 c o u n se 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). III. M o v a n t seeks relief based on ineffective assistance of counsel. Movant claims that: (1 ) counsel failed to object to the pre-sentence report and the conversion of seized funds into d ru g s ; (2) counsel failed to properly explain essential elements of the charge and the e v id e n c e required for a conviction; (3) counsel failed to explain the proper range of s e n te n c in g exposure; (4) counsel failed to file a sentencing memorandum presenting

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m itig a tin g factors and arguing for a downward departure from the advisory guideline range; a n d (5) counsel failed to consult with Movant about filing a direct appeal and the advantages an d disadvantages of appeal. (Dkt. Nos. 2, 3.) A. Statute of Limitations A one-year period of limitations applies to § 2255 motions that begins to run from the la te s t of, inter alia, the date on which the judgment of conviction becomes final. 28 U.S.C. § 2255(f)(1). Although Movant's motion was officially filed on February 21, 2008, the p ris o n mailbox rule considers a motion filed when it is handed to prison authorities. Houston v . Lack, 487 U.S. 266, 275 (1988). This mailbox rule applies to § 2255 motions. Towns v. U n ite d States, 190 F.3d 468, 469 (6th Cir. 1999). In his motion, Movant states: "This 2255 p e titio n is timely filed as it was handed over to the mail room at Federal Correctional In s titu te Gilmer on February 15, 2008. This is to support that the mailbox rule establishes th a t once I serve this petition to prison officials it is timely filed therein." (Dkt. No. 1, at 12.) A lth o u g h Movant failed to certify the date that the motion was placed in the prison mailing system , he did assert in the motion that it was delivered to the prison mail room on February 1 5 , 2008. (Id. at 13-14.) If true, Movant filed his motion within the one-year statute of lim ita tio n s . H o w e v e r, even if Movant did not deliver the motion to the prison mail room on F e b r u a r y 15, 2008, his motion was filed with the Court on February 21, 2008, which is also w ith in the one-year statute of limitations period. The government contends that the statute

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o f limitations started running on the day of Movant's sentencing hearing, February 16, 2007; h o w e v e r, the Sixth Circuit does not consider a judgment final until the time period for appeal e x p ire s . Sanchez-Castellano v. United States, 358 F.3d 424, 427 (6th Cir. 2004). Thus, M o v a n t's judgment became final on March 2, 2007, ten business days after judgment was e n te re d , and Movant had until March 2, 2008, to file his § 2255 motion. See Fed. R. App. P . 4(b)(1), 26 (amended 2009). Therefore, Movant's motion is not barred by the statute of lim ita tio n s . B. Waiver of Collateral Attack T h e Court must next address whether Movant's § 2255 motion is barred by his plea a g re e m e n t. "A defendant may waive any right in a plea agreement, including a constitutional rig h t, if the waiver is made knowingly and voluntarily." United States v. Fleming, 239 F.3d 7 6 1 , 763-64 (6th Cir. 2001). However, a waiver of collateral review may be invalid if it was th e product of ineffective assistance of counsel: [ I]n cases where a defendant argues that his plea was not knowing or v o lu n tar y, or was the product of ineffective assistance of counsel . . . it would b e entirely circular for the government to argue that the defendant has waived h is right to an appeal or a collateral attack when the substance of his claim c h a lle n g e s the very validity of the waiver itself. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). In paragraph ten of his plea agreement, Movant agreed to waive the right to challenge h is sentence and the manner in which it was determined, either in appeal or in any collateral a tta c k (including a § 2255 motion), in exchange for the concessions made by the United

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S tates Attorney's Office. (File No. 1:06-CR-162, Dkt. No. 19.) At his plea hearing before M a g is tra te Judge Brenneman, Movant stated under oath that he understood that he was w a iv in g his rights of appeal and collateral attack: T H E COURT: In addition to that right, after sentencing, you also have the rig h t to come back to this court and file a motion to attack your sentence. And th a t motion is called a collateral attack or it's sometimes called a 2255 motion, b e c a u s e Section 2255 of the Federal Code, Criminal Code, provides for it, so f o r shorthand purposes we call it a 2255 motion. Other people call it a petition f o r writ of habeas corpus, but whatever you call it, it's the same thing. It's a m o tio n you file in this court to bring back to Judge Bell and asking for relief b e c au s e you think your sentence was improperly imposed, or was improper for s o m e other reason. S o those are the rights that you have under the law, even if you plead guilty. N o w , having said that, you are entering into an agreement here with the p ro se c u to r and you are saying, Mr. Prosecutor, in return for certain c o n c e s s i o n s you're making, I'm going to make some too. I'm going to give u p my right to appeal my sentence to the Sixth Circuit Court of Appeals or in a 2255 motion or a collateral attack back in this court. I want to give up those rig h ts , I will not appeal my sentence either to the higher court or back to you, e v e n if I think it's improper in some way. I'm giving up that right in return for c e rta in concessions you're making. You understand what you're doing? T H E DEFENDANT: Yes, sir. T H E COURT: And you're agreeable to that? T H E DEFENDANT: Yes, sir. (F ile No. 1:06-CR-162, Dkt. No. 22, Plea Hr'g Tr. 26-27.) Although it appears that Movant k n o w in g ly and voluntarily waived his right to collateral attack, at least one of his claims in h is § 2255 motion alleges that the waiver was the product of ineffective assistance of c o u n s e l. 6

M o v a n t claims that his counsel failed to properly explain essential elements of the c h a rg e and the proper range of sentencing exposure. Movant contends that his counsel e x p la in e d to him that his final maximum sentencing guidelines range would be between s e v e n ty and eighty-seven months, though Movant ultimately received a sentence of 135 m o n ths.1 (Dkt. No. 2, at 6.) T o make out a claim of ineffective assistance of counsel, Movant must show that c o u n se 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). A counsel's failure to adequately explain a client's sentencing exposure " m a y constitute deficient assistance." Moss v. United States, 323 F.3d 445, 474 (6th Cir. 2 0 0 3 ). See Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001) (finding that counsel's " c o m p le te ignorance of the relevant law under which his client was charged" and "gross m is a d v ic e " constituted deficient assistance). 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 i th 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.

It appears that the lower range of seventy to eighty-seven months reflects a guidelines calculation that does not take into account the higher quantity of drugs after conversion of the seized funds. 7

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Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003). With respect to Strickland's p r e ju d ic e prong, "[i]n the context of an allegedly involuntary guilty plea, prejudice can be d e m o n s tra te d by showing that `but for counsel's errors, [the petitioner] would not have p le a d ed guilty.'" Anderson v. Carlton Hill, 150 F. App'x 499, 501 (6th Cir. 2005) (quoting H ill v. Lockhart, 474 U.S. 52, 59 (1985)). At his plea hearing, Movant acknowledged that he had spoken to his counsel about th e sentencing guidelines, that she had given him an idea of the range of sentences he could f a ce , and that he was accepting the plea agreement with this range in mind: T H E COURT: I cannot tell you today what the guidelines would be in your c a se , because they have to be calculated by the probation office when it does a pre-sentence report. However, these guidelines are no secret, they are a v a ila b le to everybody, and your attorney has access to these, and she may h a v e been able to give you an idea of how the guidelines would impact you in th is case. Now, she certainly cannot guarantee you that her calculations will be c o rre c t, but she may have been able to give you some idea of how they would tu r n out. Have you talked to your attorney about these guidelines? T H E DEFENDANT: Yes, sir. T H E COURT: So you understand what I'm talking about? T H E DEFENDANT: Yes, sir. T H E COURT: Was she able to give you some idea of what the guidelines m ig h t be in your case? T H E DEFENDANT: Yes, sir. T H E COURT: So knowing that and knowing the maximum possible penalties f o r these charges, and knowing the charges themselves, it is your desire to e n ter a plea of guilty to both of these charges today; is that correct?

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T H E DEFENDANT: Yes, sir. (F ile No. 1:06-CR-162, Dkt. No. 22, Plea Hr'g Tr. 6-7.) Movant reasserts this same in f o rm a tio n in an affidavit filed with his motion. (Dkt. No. 3.) A cc o rd in g ly, the government's motion to dismiss will be denied because Movant's m o tio n was timely filed and because at least one of his claims alleges that his plea was the p rod u ct of ineffective assistance of counsel. If Movant can demonstrate that his counsel's p e rf o rm a n c e was deficient and that this deficiency prejudiced him, his waiver of the right to c o lla te ra lly attack his sentence may be invalid. Therefore, in accordance with Rule 4 of the R u le s Governing Section 2255 Proceedings, the government will be required to file an a n sw e r or other response to the motion. A n order will be entered that is consistent with this opinion.

Dated: June 4, 2010

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

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