Cobbs v. United States of America

Filing 15

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

C o b b s v. United States of America

D o c . 15

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, 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, this Court finds that Movant is entitled to a c o n d i tio n a l grant of a writ of habeas corpus. I. M o v a n t was originally indicted on January 19, 2005, on the following charges: (1 ) conspiracy to possess, with the intent to distribute, over five grams of cocaine base in v io la tio n of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B)(iii), and 846; (2) possession of eight f ire a rm s in furtherance of drug trafficking crimes in violation of 18 U.S.C. §§ 924(c)(1)(A) a n d 924(c)(1)(B)(ii); (3) possession of a machine gun in violation of 18 U.S.C. §§ 922(o) and 9 2 4 (a )(2 ); and (4) possession of a semiautomatic pistol, with the knowledge that it had an o b lite ra te d serial number and had been shipped in interstate commerce, in violation of

Dockets.Justia.com

18 U.S.C. §§ 922(k) and 924(a)(1)(B). (Dkt. No. 9, Indictment.) Movant was represented b y appointed counsel, Mr. Tamboer, and was offered a plea agreement on January 19, 2005. (D k t. No. 9, Ex. 1, Letter Regarding Plea Agreement.) The plea agreement required Movant to plead guilty to Count 1, in exchange for dismissal of Count 3, possession of a machine gun in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A), (B), which carried a thirty-year mandatory penalty. (Dkt. No. 9, Ex. 1.) On April 5, 2005, the Court granted M o v a n t's motion to substitute counsel, replacing Mr. Tamboer with Mr. Slocombe. (File No. 1 :0 5 -C R -1 1 , Dkt. No. 32, Order Allowing Substitution of Counsel.) Movant did not accept th e plea offer, and was indicted on the original charges plus three additional drug charges. (F ile No. 1:05-CR-11, Dkt. No. 35, Second Superceding Indictment.) A s part of the defense at trial, Movant's cousin, Mansour Harrell, testified that the d ru g s found in the house belonged to him, and not to Movant. Harrell was impeached and la te r convicted of perjury for this testimony. (File No. 1:06-CR-65, Dkt. No. 35, J.) Movant w a s found guilty on all counts on September 28, 2005. (File No. 1:05-CR-11, Dkt. No.86, J u ry Verdict.) On January 10, 2006, this Court sentenced Movant to 97 months of

in c a r c e r a tio n . (File No. 1:05-CR-11, Dkt. No. 89, Mins. of Sentencing.) Movant also re c eiv e d an additional consecutive sentence of thirty years, or 360 months, for the machineg u n charge. (File No. 1:05-CR-11, Dkt. No. 90, J.) Movant's conviction and sentence were a f f irm e d on appeal. United States v. Cobbs, 233 F. App'x 524 (6th Cir. 2007). Movant filed h is § 2255 motion on May 21, 2008. (Dkt. No. 1.) Movant alleges that Counsel Slocombe w a s ineffective for encouraging Movant to refuse an offered plea bargain even though

M o v an t was guilty and had no viable legal defense. (Dkt. No. 2, at 19.) 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 r r o 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 petitioner can prevail on a § 2255 motion a lleging non-constitutional error only by establishing a "fundamental defect which inherently re su lts 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 quotations o m itte d )) . 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

3

(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. To make out a claim of ineffective assistance of counsel, a movant must show that c o u n se l's representation fell below an objective standard of reasonableness, and that co unsel's deficient performance prejudiced movant. 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. Movant must show a "reasonable probability that, but for counsel's unprofessional errors, the result of the p ro c e ed in g would have been different." Id. at 694. T o determine whether Counsel Slocombe was ineffective, the Court must decide: (1 ) whether there was a plea offer available that excluded the machine-gun charge when M o v a n t retained Counsel; (2) whether Counsel advised Movant to refuse the plea offer and g o to trial; and (3) if so, whether this advice was objectively unreasonable and prejudiced M o v a n t. III. A . There was a plea offer available that excluded the machine-gun charge at the time C o u n se l was retained. 4

T h e government alleged, in its initial plea 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, in the f ir s t two paragraphs of its response, the government implies that the plea offer was still a v a ila b le when Slocombe was initially retained, on April 5, 2005, over two weeks after the s u p e rs e d in g indictment was filed. (Dkt. No. 9, ¶¶ 1-2.) ("There is no credible evidence that th e defendant's second attorney ever advised the defendant against accepting the g o v ern m en t's plea offer.") In the evidentiary hearing held on this matter, Slocombe testified that he had discussed th e plea agreement with Movant. There was no evidence offered by either party to indicate th a t the plea offer had been revoked and that Movant would have been unable to take the plea o f f er after retaining Slocombe. The Court finds that, based on the record, the plea offer was a v a ila b le at the time Slocombe was retained by Movant. B. Counsel advised Movant to refuse the plea offer and go to trial W h e n Slocombe took over the case, Tamboer sent him copies of everything in M o v a n t's file. Tamboer testified that, in a phone conversation, he explained the severity of th e machine-gun charge and Slocombe did not seem to appreciate the gravity of the situation. F u r th e r, Tamboer stated that Slocombe did not even know the sentencing guidelines for the c h a rg e s facing Movant. Tamboer testified that he recommended taking the plea, and this C o u rt finds his testimony credible.

5

M o v a n t and his grandfather, Aaron Cobbs Sr., both testified that Slocombe had p ro m is e d Movant would win at trial and that there was no way he could be found guilty. M o v a n t stated that Slocombe indicated they could beat the drug charge if someone else took re sp o n sib ility for the drugs and then the machine-gun charge would be taken care of as well. M o v a n t testified that he was informed he could be sentenced to 170 months for the drug c h a rg e if he plead guilty. But as he understood it, trial posed no risk of a greater penalty. M o v a n t claims that there was no substantive discussion about the plea agreement because S l o c o m b e insisted he could do at least as well by going to trial. Movant testified that he listen e d to Slocombe's advice to go to trial because it seemed to him the attorney's role is to te ll him about the law and what he should do. To the contrary, Slocombe testified that he gave Movant all of the facts surrounding th e case and that he told Movant he was unlikely to win at trial. Slocombe denies ever m a k in g claims that he would beat the government at trial or any other promises about the c a se . Slocombe claims that he does not generally make recommendations to clients

re g a rd in g taking or not taking pleas because it is the client's decision. He testified that M o v a n t was the one who made the decision to reject the plea offer and go to trial. There is a discrepancy in the evidence presented regarding the circumstances that led to Slocombe's meeting with Movant. Slocombe testified that he was contacted ­ he could n o t recall by whom ­ and that at their behest he went to meet with Movant in jail. On the o th e r hand, Movant stated that Slocombe "solicited" Movant and offered his services based

6

o n Slocombe's "superior legal skills and record of success in similar cases." (Dkt. No. 1, at 3 .) Movant's assertions of solicitation are consistent with his testimony that Slocombe in d u c e d Movant to hire him based on Slocombe's promise to win at trial. The Court finds that the testimony of Slocombe is not credible, particularly in light o f all other testimony received. Slocombe could not produce a single letter, personal note, o r any documentation of any kind supporting his vague testimony. Movant was receiving p ro f ic ie n t services, free of charge, from Tamboer prior to Slocombe's involvement. But, as M o v a n t stated, because of Slocombe's "persistence and favorable analysis" Movant decided to change counsel. (Dkt. No. 1, at 3.) Even if Movant initially sought out Slocombe for a s e c o n d opinion on his case, the only reason to dismiss Tamboer would be that Slocombe p ro m ise d a better result. Based on the above findings, the only conclusion to which this C o u rt can arrive is that Slocombe induced Movant to change his attorney and go to trial b a se d on promises that Movant could avoid conviction on at least the machine-gun charge a n d possibly on all counts. C . This advice was objectively unreasonable and prejudiced Movant. i. Counsel's recommendation to go to trial was unreasonable. C o u n s e l recommended going to trial even though he had no viable defense. The d e f en s e at trial consisted almost entirely of placing the blame on Harrell for the drugs, and a tte m p t in g to show that Movant did not own the machine gun. Both of these lines of defense w e re unreasonable and ineffective.

7

T h e first defense was unreasonable because it relied solely on the testimony of Harrell, w h ic h this Court finds Slocombe knew, or should have known, was false. Both Harrell and M o v a n t testified that Slocombe was the impetus for Harrell's testimony taking responsibility f o r the drugs. Harrell stated at the evidentiary hearing that his cousin, Movant, brought him to see Slocombe and that the two of them (Harrell and Slocombe) met alone to discuss the d r u g s . Harrell testified that Slocombe must have known that Harrell was lying because S lo c o m b e coached Harrell on where the drugs were located and recommended that Harrell a c t like a user. Harrell was convicted of perjury for his testimony at trial claiming ownership o f the drugs, and as a result he was incarcerated for 32 months. (File No. 1:06-CR-65, Dkt. N o . 35, J.) S lo c o m b e testified that Movant brought Harrell to meet with him and that Slocombe s im p ly incorporated Harrell into the defense. Slocombe denies telling Harrell the location o f the drugs. Slocombe testified that he did not know whether Harrell was telling the truth o r not, and that it was not his duty to make a value determination about the testimony. This C o u rt finds it troubling that, by his own testimony, Slocombe made no effort to ensure that h e would not be calling on a witness to perjure himself as the main pillar of his client's d e f en se . Counsel's decision to use Harrell's testimony as the main defense was

u n re a s o n a b le . Even if Slocombe did not engineer Harrell's testimony, Slocombe's recommendation to go to trial still would have been unreasonable. According to the testimony from Harrell,

8

M o v an t, and Slocombe, Harrell did not meet with Slocombe until shortly before trial. There is no evidence to show that Slocombe prepared a defense other than the one involving H a rre ll, which could not have been prepared until meeting with him. Slocombe's

recom m end atio n to go to trial before even meeting Harrell was unreasonable because without H a rre ll's testimony, the defense would have been nearly non-existent. C o u n se l's second line of defense ­ attempting to show that Movant did not own the m a c h in e gun ­ was unreasonable because, even if true, that argument does not discount M o v a n t's guilt of being in possession of the gun. 18 U.S.C. §§ 922(o), 924(a)(2). The c h a rg e did not discriminate between ownership or possession, and therefore the defense was n o t a reasonable one in light of the facts and charges facing Movant. Counsel never had a viable defense strategy. Accordingly, this Court finds that S lo c o m b e ' s recommendation that Movant refuse the government's plea offer and go to trial w a s unreasonable. ii. Movant was prejudiced by Counsel's unreasonable recommendation to go to t r ia l. M o v a n t asserts that he was prejudiced by Counsel's ineffective assistance because M o v a n t would have accepted the plea offer from the government if he had not been told by C o u n s e l to go to trial. (Dkt. No. 1, at 4.) A movant who claims that is counsel was i n e f f e c t iv e for encouraging him to reject a plea offer and go to trial states a viable Sixth A m e n d m e n t claim. Turner v. Tennessee, 858 F.2d 1201, 1205 (6th Cir. 1988), vacated on o th e r grounds, 494 U.S. 902 (1989), reinstated on other grounds, 940 F.2d 1000, 1002 (6th 9

C ir. 1991). The Strickland standard applies to claims of ineffective assistance of counsel in v o lv in g counsel's advice during the plea process. Hill v. Lockhart, 474 U.S. 52, 58 (1985). T h e Sixth Circuit has held that Strickland "only requires that a defendant demonstrate that th e re is a `reasonable probability' that the result of the proceeding would have been different. T h e Supreme Court has imposed no requirement that the defendant meet his burden of proof th ro u g h objective evidence." Magana v. Hofbauer, 263 F.3d 542, 548 n.1 (6th Cir. 2003). B a se d on the testimony presented, this Court finds that there is a reasonable p ro b a b ility that Movant would have taken the plea agreement absent Counsel's unreasonable a d v ic e . While it is unknown what sentence Movant would have received had he accepted th e plea agreement, it is evident that, without the mandatory thirty-year consecutive sentence a ss o c iate d with the machine-gun charge, Movant's sentence would have been significantly le ss than the 457 months he received as a result of going to trial. Therefore, Movant was p re ju d ic e d by Slocombe's unreasonable recommendations and actions in attempting to garner M o v a n t's business and in preparing the case for trial. The Court notes that there remains a lingering question as to whether Movant was in v o lv e d in conspiring with Slocombe to introduce false testimony from Harrell as part of th e defense. The Court finds that, even if Movant was complicit, Slocombe was still in e f fe c tiv e for failing to advise Movant to take the government's plea offer and for c o n tin u in g with no viable defense. Any wrongdoing or deception by Movant does not excuse o r permit counsel acting in a way that was, as found by this Court, ineffective.

10

V. T h e Court finds that Movant is entitled to a conditional grant of habeas corpus based o n this Court's finding that Mr. Slocombe provided ineffective assistance of counsel. The G o v e rn m e n t must release Movant from custody unless it brings him to trial again within 70 d a ys . An order consistent with this opinion shall be entered.

Dated: October 13, 2010

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

11