Cobbs v. United States of America

Filing 12

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

A A R O N MOSES COBBS, III, M o v a n t, File No. 1:08-CV-471 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 Movant Aaron Moses Cobbs, III's motion p u rsu a n t to 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him b y this Court. For the reasons that follow, an evidentiary hearing will be granted. I. M o v a n t was originally indicted on January 19, 2005. A superseding indictment was f ile d on March 17, 2005, and a second superseding indictment was filed on March 31, 2005, c h a rg in g Movant with: (1) conspiracy to possess, with the intent to distribute, over five g ra m s of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 846 (" C o u n t 1"); (2) knowing and intentional distribution, on January 6, 2005, of a mixture or s u b s ta n c e that contained a detectable amount of cocaine base in violation of 21 U.S.C. § § 841(a)(1) and 841(b)(1)(C) ("Count 2"); (3) knowing and intentional distribution, on J a n u a ry 10, 2005, of a mixture or substance that contained a detectable amount of cocaine

b a se in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count 3"); (4) possession, w ith the intent to distribute, of over five grams of a mixture or substance that contained a d e tec tab le amount of cocaine base in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii) (" C o u n t 4"); (5) possession of nine firearms in furtherance of drug trafficking crimes in v io la tio n of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(B)(ii) ("Count 5"); (6) possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 924(a)(2) ("Count 6"); (7) possession o f a semiautomatic pistol, with the knowledge that it had an obliterated serial number and h a d been shipped in interstate commerce, in violation of 18 U.S.C. §§ 922(k) and 9 2 4 (a )( 1 )( B ) ("Count 7"). On April 5, 2005, the Court granted Movant's motion to substitute counsel. Movant w a s tried and found guilty on all counts on September 28, 2005. On January 11, 2006, this C o u rt sentenced Movant to ninety-seven months of incarceration as to each of Counts 1-4 a n d 6, and sixty months as to Count 7, all to be served concurrently. This Court also s e n te n c ed Movant to 360 months as to Count 5 to be served consecutively, for a total of 457 m o n th s of incarceration. Movant also received four years of supervised release. United S ta te s v. Cobbs, File No. 1:05-CR-11, Dkt. No. 90 (W.D. Mich. Jan. 11, 2006). Movant's c o n v ic tio n and sentence were affirmed on appeal. United States v. Cobbs, 233 F. App'x 524 (6 th Cir. 2007). Movant filed his § 2255 motion on May 21, 2008. II. T o prevail on a § 2255 motion "`a petitioner must demonstrate the existence of an

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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)). Nonc o n s titu tio n a l errors are generally outside the scope of § 2255 relief. United States v. C o field , 233 F.3d 405, 407 (6th Cir. 2000). A movant 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. 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 s e l claim may be raised in a collateral proceeding under § 2255, whether or not the m o v a n t could have raised the claim on direct appeal. Id. A court is required to grant a hearing to determine the issues and make findings of fact a n d conclusions of law on a § 2255 motion "[u]nless the motion and the files and records of

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th e 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, the judge m a y rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996). I I I. M o v a n t seeks relief based on ineffective assistance of counsel, for which he asserts f o u r distinct claims: (1) counsel encouraged Movant to refuse the offered plea bargain even th o u g h Movant was guilty and had no viable legal defenses; (2) counsel failed to file legally m e rito rio u s pre-trial motions despite his promises to do so; (3) counsel failed to communicate a n y plea offers, case analysis, or any other relevant information regarding the status or in v e s tig a tio n of the case to Movant in writing; (4) counsel failed to object to improper e v i d e n c e at trial, make appropriate legal motions, or request applicable jury instructions. (D k t. No. 1.) 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). "The benchmark for judging any claim of ineffectiveness must be w h e t h e r counsel's conduct so undermined the proper functioning of the adversarial process th a t the trial cannot be relied on as having produced a just result." Id. at 686. M o v a n t's second, third, and fourth claims are unsupported. Movant fails to provide

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a n y examples of counsel's deficiency with regard to plea offers not delivered, pre-trial m o tio n s, or conduct at trial, and he has not indicated how counsel's conduct in this regard p re ju d ic e d him. Unsupported, conclusory statements are "wholly insufficient to raise the is s u e of ineffective assistance of counsel." Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2 0 0 0 ). Thus, the Court finds that these claims are without merit. Movant's first claim alleges that counsel was ineffective because he urged Movant t o reject the plea offer and go to trial. (Dkt. No. 2, at 19.) On January 19, 2005, the g o v e rn m e n t represented that if Movant pleaded guilty to the original indictment, it would not in d ic t Movant for possessing a machine gun in furtherance of drug trafficking, a charge that c a rr ie d a mandatory thirty-year penalty. (Dkt. No. 9, Ex. 1, Letter Regarding Plea Agmt.) A f te r Movant declined the plea agreement, he was indicted through a superseding indictment f o r possessing a machine gun in furtherance of drug trafficking. (File No. 1:05-CR-11, Dkt. N o . 25.) The government alleged, in its initial offer, that the offer would not be available a f te r this superseding indictment was filed because "once the machine gun was charged as a Section 924(c) violation it could not be dismissed." (Dkt. No. 9, at 4.) However, the g o v e rn m e n t's statements to the Court suggest that the offer was still available after the s u p e rs e d in g indictment was filed. In paragraphs 1 and 2 of its response, the government im p lies that the plea offer was still available when the counsel in question was initially re ta in e d , on April 5, 2005, over two weeks after the superseding indictment was filed. P a ra g ra p h s 1 and 2 state:

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T h e defendant was offered a resolution to the case prior to trial, in which he w a s given the change [sic] to plead to all charges in the indictment except the m o s t serious offense, possession of a machine gun in furtherance of drug tra f f ic k in g in violation of 18 U.S.C. § 924(c). . . . . There is no credible evidence that the defendant's second attorney ever ad v ised the defendant against accepting the government's plea offer. (D k t. No. 9 ¶¶ 1-2.) In the government's response, it again implies that Movant had the a b ility to accept the plea offer through his new counsel. The response states that: In this case, the heart of the defendant's claim is that Mr. Slocombe blundered b y advising against a plea and advocating for a trial, based on a belief that C o b b s could prevail on the Section 924(c) charge in connection with the m a c h in e gun. The government expects the proof to show that Slocombe did n o t advise the defendant to try the case. However, even if he did, the d e f en d a n t cannot meet his burden of showing that the advice was ineffective. (D k t. No. 9, at 8.) The government offers no evidence that counsel did not advise Movant to reject the plea offer. Instead it indicates that it could prove its assertions at an evidentiary h e a rin g . (Id. at 8-9.) If counsel did advise Movant to reject the plea offer, Movant must also show that this a d v i c e was objectively unreasonable and that it prejudiced him. "In the context of guilty p le a s, the first half of the Strickland v. Washington test is nothing more than a restatement o f the standard of attorney competence . . . ." Hill v. Lockhart, 474 U.S. 52, 58 (1985). S tr ic k la n d held that counsel's assistance is unreasonable when it is "outside the wide range o f professionally competent assistance." Strickland v. Washington, 466 U.S. 668, 690 (1 9 8 4 ). As for the machine gun charge at issue, the government argues that "the proof was c irc u m s ta n tia l and not so conclusive that it was impossible to imagine a jury acquitting the 6

d e f en d a n t." (Dkt. No. 9, at 8.) However, in a February 16, 2005, letter to the original d e f e n se attorney, the government's attorney claimed that he was "convinced that I could p ro v e to a jury that your client possessed the machine gun in part to further his drug t ra f f i c k i n g ." (Id., Ex. 1.) The Court recognizes the possibility that this statement was p o s tu rin g ; however, the weight of the evidence indicates that defense counsel should have b e e n aware of the strength of the government's case. The Sixth Circuit has provided several factors for determining whether a firearm was u s e d in furtherance of drug trafficking: In order for the possession to be in furtherance of a drug crime, the firearm m u s t be strategically located so that it is quickly and easily available for use . . . . Other factors . . . include whether the gun was loaded, the type of weapon, th e legality of its possession, the type of drug activity conducted, and the time a n d circumstances under which the firearm was found. United States v. Mackey, 265 F.3d 457, 462 (6th Cir. 2001). The record suggests that all of th e foregoing factors were present. Movant admitted to police that he was the owner of the firearm . (File No. 1:05-CR-11, Dkt. No. 1, Compl., Aff. of Christopher Luhr 7.) The firearm w a s an illegal machine gun that was found on a rack above a dresser in Movant's bedroom w ith a fully loaded magazine inches below it. (Dkt. No. 9, Govt. Resp. Br. 3-4.) The police f o u n d Movant's stash of cocaine inside the same dresser. (Id. at 3.) Also, the police had o b s e rv e d crack being sold out of the house. (Id. at 2.) It also appears that Movant did not possess any meritorious defenses. At trial, counsel a rg u e d that the government did not possess any direct proof that Movant was the one who

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c o n v e rte d the weapon into a fully automatic machine gun. (File No. 1:05-CR-11, Dkt. No. 9 8 , Tr. of Jury Trial I 166-69; Id., Dkt. No. 99, Tr. of Jury Trial II 209-10, 242-48.) H o w e v e r, the government did not need direct proof to link Movant to the illegally altered f ire a rm . The Sixth Circuit has noted: " E v id e n c e of either actual or constructive possession of a firearm is sufficient to sustain the verdict." . . . Constructive possession may be proved by direct or c irc u m s ta n tia l evidence and it is not necessary that such evidence remove e v e ry reasonable hypothesis except that of guilt. "Proof that `the person has d o m in io n over the premises where the firearm is located' is sufficient to e sta b lis h constructive possession." United States v. Coffee, 434 F.3d 887, 895-96 (6th Cir. 2006) (citations omitted). Counsel also produced a witness who testified that he possessed the drugs found in th e house. (Dkt. No. 9, at 6.) However, this witness was convicted of perjury for his tes tim o n y. (File No. 1:06-CR-65, Dkt. No. 35, Judgment.) Even if the jury had believed this w itn e ss 's testimony, it likely would not have affected Movant's chances of being acquitted o f possessing a machine gun in furtherance of drug trafficking crimes, because, in addition to being convicted for the drugs found in his house on January 10, 2010, Movant was c o n v ic te d for distributing drugs out of his house on January 6, 2010. (File No. 1:05-CR-11, D k t. No. 35.) Given the circumstances surrounding the seizure of the firearm, if counsel did in s is t that Movant would win on the machine gun charge by going to trial, Movant has a p la u sib le argument that counsel was objectively unreasonable. If counsel insisted that Movant go to trial, Movant must also show that this advice p re ju d ice d him. When an ineffective assistance of counsel claim concerns a plea agreement, 8

" [ t]h e second, or `prejudice,' requirement [of Strickland] . . . focuses on whether counsel's c o n stitu tio n a lly ineffective performance affected the outcome of the plea process." Hill v. L o c k h a r t, 474 U.S. 52, 59 (1985). Movant has asserted that if his counsel had provided a d e q u ate assistance, he would have accepted the plea offer from the government. (Dkt. No. 1 , at 4.) While some circuits have held that a Movant's post-conviction testimony that he w o u ld have accepted a plea is insufficient, the Sixth Circuit "has not explicitly adopted such a requirement." Magana v. Hofbauer, 263 F.3d 542, 548 n.1 (6th Cir. 2003). Instead, the S ix th Circuit has held that Strickland "only requires that a defendant demonstrate that there is a `reasonable probability' that the result of the proceeding would have been different. The S u p r e m e Court has imposed no requirement that the defendant meet his burden of proof th ro u g h objective evidence." Id. Furthermore, "[t]he gap between [a Movant's] potential s e n te n c e if convicted and the plea offer is sufficient to merit an evidentiary hearing." Griffin v . United States, 330 F.3d 733, 739 (6th Cir. 2003). While it is unknown what sentence M o v a n t would have received had he accepted the plea agreement, it is evident that, without th e mandatory thirty-year consecutive sentence that the machine gun charge carried, M o v a n t 's sentence would have been significantly less than the 457 months he received as a re su lt of going to trial. Thus, if Movant's allegations are true, he has a plausible argument th a t he was prejudiced by counsel's actions. For the foregoing reasons, the files and records in this case do not conclusively show th a t Movant is entitled to no relief under § 2255. Accordingly, the Court will conduct an

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evidentiary hearing to resolve the merits of Movant's claim that he would have pleaded guilty a n d would not have gone to trial but for the ineffective assistance of his counsel. A n order consistent with this opinion shall be entered.

Dated: August 10, 2010

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