Foreman #12658-040 v. United States of America

Filing 12

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

F o r e m a n #12658-040 v. United States of America

D o c . 12

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

B E N JA M IN PRESTON FOREMAN, M o v a n t, File No. 1:08-CV-1115 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 is before the Court on Movant Benjamin Preston Foreman's motion p u rs u a n t to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Dkt. No. 1.) The g o v e rn m e n t has filed a motion to dismiss Movant's § 2255 motion. (Dkt. No. 6.) Movant h a s also filed an application to proceed without payment of fees (Dkt. No. 2), a motion for d is c o v e ry (Dkt. No. 4), a motion for leave to file excess pages (Dkt. No. 5), and a motion for a n order granting his § 2255 motion. (Dkt. No. 10). For the reasons that follow, the g o v e rn m e n t's motion to dismiss will be granted, and Movant's § 2255 motion will be denied. C o n s e q u e n tly, Movant's application to proceed without payment of fees, motion for d isc o v e ry, motion for leave to file excess pages, and motion for order will be denied as moot. I. M o v a n t was indicted on February 8, 2006, for: (1) possession, with the intent to d is trib u te , fifty grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and

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8 4 1 (b )(1 )(A )(iii) ("Count 1"); (2) possession, with the intent to distribute, cocaine in v io la tio n of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C) ("Count 2"); (3) possession of firearms d u rin g and in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 9 2 4 ( c ) ( 1 )(A ) (i) ("Count 3"). (W.D. Mich. File No. 1:06-CR-30, Dkt. No. 1.) Movant p le a d ed guilty on March 16, 2006, pursuant to a written plea agreement in which he agreed to waive the right to challenge his sentence, for any reason, either on appeal or by collateral a tta c k . (Id., Dkt. No. 29.) On September 7, 2006, this Court sentenced Movant to 240 m o n th s of incarceration as to Counts 1 and 2, to run concurrently, and sixty months as to C o u n t 3, to run consecutive to his sentence as to Counts 1 and 2. This Court also sentenced M o v a n t to five years of supervised release. (Id., Dkt. No. 32, J.) Movant appealed his s e n te n c e on September 15, 2006. This appeal was dismissed on September 6, 2007, because M o v a n t had waived his right to appeal in his plea agreement. (File No. 1:06-CR-30, Dkt. No. 4 2 .) On November 28, 2008, Movant filed his § 2255 motion. The government moved to d is m is s this motion on January 13, 2009. (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)). Nonc o n s titu tio n a l errors are generally outside the scope of § 2255 relief. United States v.

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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 movant 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 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 eight distinct claims: (1) counsel was ineffective

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b e c au s e he failed to investigate the facts of the case, research the law, or provide competent a ss is ta n c e; (2) the Court erred in sentencing because 18 U.S.C. § 924(c)(1)(A) provides that M o v a n t's sentence as to Count 3 should run concurrently to the sentences as to Counts 1 and 2 ; (3) Movant's conviction and sentence as to Count 3 are in violation of the Second and N in th Amendments; (4) Movant's indictment for violation of 18 U.S.C. § 924(c)(1)(a)(i) is f a ta lly defective because it does not contain a mens rea element; (5) the federal government la c k s jurisdiction to prosecute Movant because Movant was not registered in a federal p ro g ra m and, thus, was not involved in interstate commerce; (6) the United States District C o u rt for the Western District of Michigan lacks Article III judicial power and, thus, lacks s u b je c t-m a tte r jurisdiction; (7) Movant was subjected to pretrial punishment in violation of th e Fourteenth Amendment because he was referred from state detainment for federal p ro s e c u tio n , which carries more severe penalties; and (8) the United States Attorney failed to follow through on an oral promise to file a motion to reduce Movant's sentence by seven ye a rs for his substantial assistance. The Court must first address whether Movant's § 2255 motion is barred by the waiver o f his right to collaterally attack his conviction and sentence in his plea agreement. "A d e f en d a n t may waive any right in a plea agreement, including a constitutional right, if the w a iv e r is made knowingly and voluntarily." United States v. Fleming, 239 F.3d 761, 763-64 (6 th Cir. 2001). The Sixth Circuit has held, in particular, that a movant's waiver of his right to collaterally attack his sentence is generally enforceable. In re Acosta, 480 F.3d 421, 422

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(6th Cir. 2007). However, waiver of collateral attack may be unenforceable "in cases where a defendant argues that his plea was not knowing or voluntary, or was the product of in e f fe c tiv e assistance of counsel" because: [ I]t would be entirely circular for the government to argue that the defendant h a s waived his right to an appeal or a collateral attack when the substance of h is claim challenges the very validity of the waiver itself. Id. In paragraph ten of his plea agreement, Movant agreed to waive the right to challenge h is sentence by direct appeal and by collateral attack: The Defendant understands that the law affords him the right to appeal the s e n te n c e imposed. Acknowledging this the Defendant knowingly waives the rig h t to appeal the sentence as determined by the Court at sentencing and the m a n n e r in which the sentence was determined on the grounds set forth under 1 8 U.S.C. § 3742 or any ground whatever, in exchange for the concessions m a d e by the United States Attorney's Office in this plea agreement. The D e f en d a n t also waives the right to challenge such a sentence and the manner in which it was determined in any collateral attack, including but not limited to , a motion brought under Title 28, United States Code, § 2255. (W .D . Mich. File No. 1:06-CR-30, Dkt. No. 24.) Furthermore, at his plea hearing before the M a g is tra te Judge, Movant stated under oath that he understood that he was waiving his right o f collateral attack: T H E COURT: All right. Now, in addition to having a right to appeal, which yo u are giving up, a defendant in this court also has the right to come back into th is court after a sentence and file a motion attacking the sentence if they think th a t it was improperly imposed for some reason. And that is called a number o f things. It's called a collateral attack, it's called a petition for writ of habeas c o rp u s . And since it's provided for in Section 2255 of Title 28, which is the c rim in a l code, it's sometimes referred to, shorthand, 2255 motion.

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B u t no matter what you call it, it's a motion filed in this court attacking the s e n te n c e. Now, you would normally have that right. But again, in exchange for so m e concessions made by the government, you're giving up your right to file th a t motion in this court; do you understand that? T H E DEFENDANT: Yes, Your Honor. T H E COURT: And you're agreeing to that; is that correct? T H E DEFENDANT: Yes. ( I d ., Dkt. No. 29, Plea Hr'g Tr. 20-21.) It thus appears from the plea agreement and M o v a n t's statements at the plea hearing that Movant's plea was knowing and voluntary. H o w e v e r, Movant argues that his first and eighth claims demonstrate that his guilty plea was in v o lu n ta ry or invalid because his counsel was ineffective and because he was relying on an o r a l promise made by the United States Attorney. (Dkt. No. 8, Reply to Govt.'s Mot. to D is m is s 5.) If Movant is correct, his first and eighth claims are not barred by his waiver of c o lla te ra l attack in the plea agreement. However, his second through seventh claims, which d o not affect the validity of his plea or his waiver of his right to collaterally attack his s e n te n c e, are barred. A. M o v a n t's First Claim Movant's first claim, that his counsel was ineffective, does not demonstrate that the p lea agreement is invalid. Movant contends that his attorney was ineffective for multiple re a so n s , but identifies seven specific examples of erroneous assistance which he contends in f lu e n c ed his guilty plea: (1) counsel failed to prepare sentencing guidelines for Movant a n d adequately discuss his sentencing exposure; (2) counsel failed to determine whether 6

M o v a n t qualified as a career offender pursuant to U.S.S.G. § 4B1.1 prior to Movant pleading g u ilty, despite Movant's repeated requests for him to do so; (3) counsel improperly pressured M o v a n t into pleading guilty and rushed Movant through the process; (4) counsel failed to in v e s tig a t e the facts and research the law, and, as a result, failed to file a motion to suppress e v id e n c e; (5) counsel failed to explain the mens rea element of 18 U.S.C. § 924(c)(1); (6) c o u n se l failed to communicate a counter-offer to the United States Attorney; and (7) counsel f a ile d to seek a plea agreement in Washington, D.C. (Dkt. No. 5, Mem. in Supp. of § 2255 M o t. 19-20.) To 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 supports his first and second contentions, that counsel failed to review the s e n te n c in g guidelines with Movant prior to his plea and failed to determine if he qualified a s a career offender prior to his plea, with two letters indicating that counsel was planning to meet with him two months after the entry of his plea to go over the sentencing guidelines. ( D k t. No. 5, Ex. M.) However, these letters do not indicate that counsel had not reviewed th e guidelines with Movant before the plea. Nor do they indicate that counsel failed to d e te rm in e prior to the plea that Movant qualified as a career offender. In fact, Movant stated a t his plea hearing that he had talked to his counsel about the sentencing guidelines:

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T H E COURT: However, your attorney has access to the same material as e v e r yb o d y else does about how these are calculated, and he may have been a b le to give you some idea of how he believes they would impact you in this c a se . Although, he certainly cannot guarantee you that his calculations will be th e final calculations. D o you understand what I'm talking about when I talk about sentencing g u i d e l in e s ? T H E DEFENDANT: Yes, I do, Your Honor. T H E COURT: Fine. Have you talked about these with your attorney? T H E DEFENDANT: Yes, I have. T H E COURT: Was he able to give you some idea of how these guidelines m ig h t affect you in this case if the judge followed them? T H E DEFENDANT: Yes. (W.D. Mich. File No. 1:06-CR-30, Dkt. No. 29, Plea Hr'g Tr. 4-5.) Movant also indicated th a t he was satisfied with his counsel: T H E COURT: Are you satisfied with his advice to you and his representation o f you? T H E DEFENDANT: Absolutely. (Id . at 36.) These statements contradict Movant's claim that he "repeatedly requested" co u n sel to calculate his guidelines. (Dkt. No. 5, at 20.) Movant also alleges that his counsel promised him, "if you plead guilty today you'll g e t the mandatory minimum of 15 years." (Dkt. No. 5, Attach. 2, Benjamin Foreman Aff. 2 .) However, the plea agreement explicitly states that the Court can sentence Movant a n yw h e re between the statutory minimum and maximum: 8

T h e Defendant further understands that the Court shall make the final d e t e rm in a t io n of the Guideline range that applies in this case, and may impose a sentence within, above, or below the Guideline range, subject to the statutory m a x im u m and minimum penalties described elsewhere in this Agreement. The D e f en d a n t further understands that disagreement with the Guideline range or s e n te n c e shall not constitute a basis for withdrawal of the plea. The 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. B o th parties reserve the right to seek any sentence within the statutory m a x im u m , and to argue for any criminal history category and score, offense le v e l , specific offense characteristics, adjustments and departures. .... The Defendant understands that the Court is not a party to this agreement and is under no obligation to accept any recommendation by the U.S. Attorney's O f f ic e or the parties regarding the sentence to be imposed. The Defendant f u rth e r understands that even if the Court ignores such a recommendation or im p o s e s any sentence up to the maximum established by statute, the Defendant c a n n o t, for that reason, withdraw his guilty pleas, and he will remain bound to f u lf ill all his obligations under this agreement. The Defendant understands th a t no one - not the prosecutor, the Defendant's attorney, or the Court - can m a k e a binding prediction or promise regarding the sentence the Defendant w ill receive, except that it will be within the statutory maximum. (File No. 1:06-CR-30, Dkt. No. 24, at ¶¶ 7, 8, 12.) Additionally, Movant stated at the plea h e a rin g that no promises had been made to him that were not contained in the plea a g re e m e n t: T H E COURT: And do you think anybody else has made you any promises w h a ts o e v e r to get you to plead guilty or to get you to sign this agreement that a re not written down in this agreement? T H E DEFENDANT: No, Your Honor. T H E COURT: You understand this would be the time to say so if you thought th a t there had been any other promises. 9

T H E DEFENDANT: No. T H E COURT: There haven't been? T H E DEFENDANT: No. (Id., Dkt. No. 29, at 18.) Movant supports his third contention with two letters indicating that as of May 1, 2 0 0 6 , counsel and Movant were seeking a better plea agreement. (Dkt. No. 5, Ex. D.) These le tte rs do not indicate that Movant was rushed or improperly pressured into pleading guilty. In d e e d , Movant indicated at his plea hearing that he was given ample time and opportunity to review the plea, and that he was satisfied with counsel's representation: T H E COURT: All right. Mr. Foreman, have you had ample time and o p p o rtu n ity, sufficient time and opportunity to talk about this case with your a tto rn e y and to discuss it with him? T H E DEFENDANT: Yeah. Yes, I have. I'll say yes. T H E COURT: All right. T H E DEFENDANT: Not as much as I would like to, but yes. T H E COURT: Are you satisfied with his advice to you and his representation o f you? T H E DEFENDANT: Absolutely. T H E COURT: And do you have any questions about anything we've talked ab o u t so far? T H E DEFENDANT: No. T H E COURT: Do you still wish to plead guilty?

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T H E DEFENDANT: Yes. T H E COURT: You don't feel you've been hurried through this process too f a st, do you? T H E DEFENDANT: No. ( W .D . Mich. File No. 1:06-CR-30, Dkt. No. 29, Plea Hr'g Tr. 36-37.) As Movant's first th re e ineffective assistance of counsel contentions are contradicted by the record, the C o u rt finds that they are without merit, and they do not undermine the validity of M o v a n t's waiver of collateral attack. M o v a n t 's fourth through seventh ineffective assistance of counsel contentions also d o not undermine the validity of Movant's waiver of collateral attack. Movant claims that c o u n se l failed to investigate the facts of the case and research the law, failed to explain th e mens rea element of 18 U.S.C. § 924(c)(1), failed to communicate a counter-offer to th e United States Attorney, and failed to seek a plea agreement in Washington, D.C. However, Movant fails to explain or demonstrate how these actions prejudiced him or a f f e c t the validity of his plea. Movant also claims that a motion to suppress evidence should have been filed. Movant alleges, without support, that the police illegally used coerced statements from h is girlfriend to obtain a search warrant for his house. (Dkt. No. 5, Ex. B, Benjamin F o re m a n Aff.) However, this self-serving affidavit fails to show that a motion to s u p p re ss was warranted. Because Movant was not present for any of the conduct he a lle g e s, his testimony is not evidence that his girlfriend was arrested illegally or coerced 11

in to making statements against him. Furthermore, Movant presents no evidence that the s e a rc h warrant was even obtained on the basis of his girlfriend's statements. Thus, M o v a n t fails to satisfy the prejudice prong of his ineffective assistance of counsel claim. B. M o v a n t's Eighth Claim Just as with Movant's ineffective assistance of counsel contentions, Movant's e ig h th claim does not demonstrate that the plea agreement was invalid. Movant claims th a t the United States Attorney promised his counsel that the government would introduce a U.S.S.G. § 5K1.1 motion to reduce Movant's sentence by seven years, but this claim is c o n tra d ic te d by the record. Movant's plea agreement explains the possibility of a § 5K1.1 m o tio n , but explicitly states: The U.S. Attorney's Office will decide whether to file a motion for d e p a r tu r e or reduction of sentence pursuant to Sentencing Guidelines § 5 K 1 .1 or Rule 35(b) of the Federal Rules of Criminal Procedure. The D e f e n d a n t fully understands that such a motion may be made pursuant to la w if, and only if, the Defendant fully cooperates with the Government and m a te ria lly and substantially assists the Government in the investigation or p ro s e c u tio n of others. The determination of whether the Defendant has p ro v id e d substantial assistance to the United States, or to designated state or lo c a l law enforcement authorities, will be made in the sole discretion of the U .S . Attorney's Office. The Defendant fully understands that this p a ra g ra p h is not a promise by the government to file such a motion. (Dkt. No. 24, at ¶ 6(d).) Furthermore, paragraph fourteen of the plea agreement states th a t there were no other agreements between the parties:

This agreement has been entered into by both sides freely, knowingly, and v o lu n ta rily, and it incorporates the complete understanding between the 12

p a rtie s. No other promises have been made, nor may any additional a g re e m e n ts , understandings or conditions be entered into unless in a writing sig n e d by all parties or on the record in open court. (Id . at ¶ 14.) At his plea hearing Movant stated that he was not relying on any promises o th e r than those in the plea agreement: T H E COURT: And do you think anybody else has made you any promises w h a ts o e v e r to get you to plead guilty or to get you to sign this agreement th a t are not written down in this agreement? T H E DEFENDANT: No, Your Honor. T H E COURT: You understand this would be the time to say so if you th o u g h t that there had been any other promises. T H E DEFENDANT: No. T H E COURT: There haven't been? T H E DEFENDANT: No. (F ile No. 1:06-CR-30, Dkt. No. 29, at 18.) Because Movant's first and eighth claims are without merit, the Court finds that M o v a n t's waiver of collateral attack was valid and that his right to challenge his c o n v ic tio n and sentence via § 2255 is barred. The files and records in this case conclusively show that Movant is entitled to no re lief under § 2255. Accordingly, no evidentiary hearing is required to resolve the merits o f the pending motion. For the reasons stated herein, Movant's motion to vacate, set a sid e , or correct his sentence pursuant to 28 U.S.C. § 2255 will be denied, and the g o v e rn m e n t's motion to dismiss will be granted. 13

P u r s u a n t 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 the grant of a certificate of a p p e ala b ility, Movant "must demonstrate that reasonable jurists would find the district c o u rt's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 5 2 9 U.S. 473, 484 (2000). The Sixth Circuit Court of Appeals has disapproved of the is s u a n c e of blanket denials of a certificate of appealability. Murphy v. Ohio, 263 F.3d 4 6 6 , 467 (6th Cir. 2001). Rather, the district court must "engage in a reasoned a s s e s s m e n t of each claim" to determine whether a certificate is warranted. Id. Upon re v ie w of each claim, the Court does not believe that a reasonable jurist would find the C o u rt's assessment of Movant's claims debatable or wrong. Accordingly, a certificate of a p p e a la b ility will be denied as to each claim. A n order and judgment consistent with this opinion shall be entered.

Dated: July 19, 2010

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

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