Punschke 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 D A M SETH PUNSCHKE, M o v a n t, File No. 1:08-CV-479 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 Adam Seth Punschke's motion under 2 8 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon him by this C o u rt. For the reasons that follow, this motion will be denied. I. A n indictment of Movant was filed on November 22, 2005, and superseded on J a n u a ry 5, 2006. On March 20, 2006, a superseding information was filed charging Movant w ith possession, with intent to distribute, of more than 500 grams of cocaine in violation of 2 1 U.S.C. §§ 841(a) and 841(b)(1)(C). Movant pleaded guilty on March 20, 2006, pursuant to a written plea agreement in which the government agreed to dismiss the original and s u p e rs e d in g indictments. This Court, on June 20, 2006, sentenced Movant to seventy-eight m o n th s of incarceration and three years of supervised release. United States v. Punschke, F ile No. 1:05-CR-273, Dkt. No. 76 (W.D. Mich. June 20, 2006). Movant's conviction and

s e n te n c e were affirmed on appeal. United States v. Punschke, 247 F. App'x 789 (6th Cir. 2 0 0 7 ). On January 28, 2008, the Supreme Court denied Movant's petition for a writ of c e rtio ra ri. Movant filed his § 2255 motion on May 27, 2008. 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)). 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

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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 th e 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, for which he has four d is tin c t claims: (1) counsel failed to ensure that Movant received a sentence of fifty-three m o n th s as agreed upon in the plea agreement; (2) counsel failed to properly object to the drug q u a n tity calculation used for sentencing; (3) counsel failed to properly object to the g o v e rn m e n t seeking a sentence above and beyond that which was guaranteed in the plea a g re e m e n t; (4) counsel failed to properly object to the calculation of Movant's criminal h is to ry level. (Dkt. No. 1, at 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). Movant's first contention is that the plea agreement guaranteed a s e n te n c e of fifty-three months. (Dkt. No. 1, at 2.) The record fails to support this contention.

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S e c tio n 7 of the plea agreement, titled "There is No Agreement About the Final Sentencing G u i d e lin e s Range," states: T h e Defendant and the U.S. Attorney's office have no agreement as to the a p p lic a b le Sentencing Guidelines factors or the appropriate guideline range . . . . Both parties reserve the right to seek any sentence within the statutory m a x i m u m and to argue for any criminal history category and score, offense le v e l, specific offense characteristics, adjustments and departures. (Plea Agreement ¶ 7.) Furthermore, in his response to the government, Movant concedes that th e re was no binding sentence agreed upon in the plea agreement. (Dkt. No. 8.) Thus, the C o u rt finds that counsel was objectively reasonable and did not prejudice Movant by not a r g u in g for a specific sentence of fifty-three months. M o v a n t's second claim is that counsel was ineffective for not objecting to the drug q u a n tity calculation contained in the presentence report ("PSR") and used by the Court for s e n te n c in g . Movant expected the drug quantity calculation to reflect his agreement with the g o v e rn m e n t that between 500 grams and two kilograms of cocaine would be attributed to h im . (Dkt. No. 1, at 7.) However, the Court decided, after consulting the PSR and Movant's p le a agreement, that the amount of drugs in question was "well in excess of two kilograms." (F ile No. 1:05-CR-273, Dkt. No. 88, Sent. Tr. 12.) As a result, the Court started Movant at a Sentencing Guidelines base offense level of 28, instead of level 26 as Movant expected. U .S .S .G . § 2D1.1. Nevertheless, Movant's claim is without merit, because counsel did, in fact, object to th e calculation of the drug quantity:

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M R . HILLS: Your Honor, the next objection that I have is to the base offense lev e l. .... I'm arguing that my -- I believe my client testified to between 500 grams and tw o kilograms, that that's the extent of his involvement in this conspiracy. T h at's what I'm arguing, Your Honor. (Id. at 8, 11.) Even if the Court was to find that counsel's objection was not properly made, the C o u rt still finds that Movant fails to establish prejudice. While Movant and the government d id agree in the plea agreement that the amount of cocaine attributable to Movant should be b e tw e e n 500 grams and two kilograms, Movant stipulated to conduct that involved more than tw o kilograms of cocaine. (Plea Agreement ¶ 5.) Movant acknowledges this stipulation, but h e claims that there was a misunderstanding and that these transactions involved a much sm a ller amount of cocaine. (Dkt. No. 8, at 1-3.) However, Movant is bound by his s tip u la tio n , especially considering he asserted before signing: "I have read this agreement a n d carefully discussed every part of it with my attorney." (Plea Agreement 6.) In addition, th e Court had the ability to reject a recommendation made in the plea agreement, and p a ra g ra p h 9 of the plea agreement clearly informed Movant of that possibility: T h e Court is not a party to this agreement and is under no obligation to accept a n y recommendation by U.S. Attorney's Office of the parties regarding the s e n te n c e to be imposed. The Defendant further understands that, even if the C o u rt ignores such a recommendation or imposes any sentence up to the m a x im u m established by the statute, the Defendant cannot, for that reason, w ith d ra w his guilty plea.

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(Id . at ¶ 9.) Moreover, the Court of Appeals agreed that Movant's stipulation was enough o n its own to support the Court's decision to sentence Movant for possession of more than tw o kilograms of cocaine. United States v. Punschke, 247 F. App'x 789, 792 (6th Cir. 2007). M o v a n t's third claim that counsel failed to properly object to the government seeking a sentence above and beyond that which was guaranteed in the plea agreement is also without m e rit. A counsel is not ineffective for failing to make a futile objection. Harris v. United S ta te s, 204 F.3d 681, 683 (6th Cir. 2000). As conceded by Movant, there was no guarantee o f a fifty-three month sentence. (Dkt. No. 8, at 1.) Both parties reserved the right in the plea a g re e m e n t to "seek any sentence within the statutory maximum." (Plea Agreement ¶ 7.) M o r e o v e r, the government never argued for or attempted to prove that more than two k ilo g ra m s of cocaine were attributable to Movant. (File No. 1:05-CR-273, Dkt. No. 88, Sent. T r.) Thus, counsel was objectively reasonable and did not prejudice Movant by failing to ra ise this argument. M o v a n t's fourth claim is that counsel failed to properly object to the calculation of his c rim in a l history score. This claim is also without merit. Counsel did properly object to the c rim in a l history calculation at sentencing: U n d e r criminal history I object to I believe it's Paragraph 74. This is the resistin g arrest, attempted assaulting, resisting, obstructing a police officer. M y client was afforded one point under criminal history in Paragraph 74. I w o u ld object to that scoring. (Id. at 14.) Counsel also moved the Court to lower Movant's criminal history level on a c c o u n t of the minor nature of his past offenses: 6

I believe that Section 4A1.3 could be utilized as a net if the Court were so in c lin e d to depart downward on the scoring of the criminal history because of th e petty nature of the offenses. These offenses substantially overrepresent the d e f e n d a n t's criminal history, so I'd ask the Court to consider coming down to a n o th e r level, level I criminal history. (Id . at 18.) Even if the Court was to find that Movant did not properly object to the criminal h isto ry level calculation, the Court finds that there was no prejudice. The Court of Appeals re v iew e d the criminal history calculation and determined that the two criminal history points a s s e s s e d for possession of marijuana and retail fraud were properly calculated. United States v . Punschke, 247 F. App'x 789, 794 (6th Cir. 2007) As a result, it held that any possible e rro r in assessing one point for attempted assault was harmless because even without that e x tra point Movant's criminal history category would still be II. Id. at 795. T h e 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 c o rr e c t his sentence pursuant to 28 U.S.C. § 2255 will be denied. Pursuant to 28 U.S.C. § 2253(c), the Court must also assess whether to issue a c e rtif 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 (6th Cir. 2001).

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Rather, 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. at 467. Upon review of each claim, the Court does not b e liev e that reasonable jurists would find its assessment of Movant's claims to be debatable o r wrong. Accordingly, a certificate of appealability will also be denied. A n order and judgment consistent with this opinion shall be entered.

Dated: June 10, 2010

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