Morris v. United States of America

Filing 4

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

M o rr is v. United States of America

Doc. 4

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

A N D R E W DAMARR MORRIS, M o v a n t, File No. 1:09-CV-229 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 Andrew Damarr Morris's motion u n d e r 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. (Dkt. No. 1.) Movant h a s also filed a motion to appoint counsel. (Dkt. No. 3.) Rule 4(b) of the Rules Governing S e c tio n 2255 Proceedings provides that if it plainly appears from the face of the § 2255 m o tio n , exhibits, and prior proceedings that the petitioner is not entitled to relief, the judge sh a ll make an order for its summary dismissal. Upon initial consideration of this motion, it p lain ly appears that Movant is not entitled to relief based on any of the grounds raised in his m o tio n . I. O n November 28, 2007, a superseding felony information was filed against Movant c h a rg in g him with: (1) knowing and intentional possession with intent to distribute five or m o re grams of a mixture or substance containing a detectable amount of cocaine base in

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v io la tio n of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(B)(iii) ("Count 1"); and (2) knowing p o s s e s s io n of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A)(i). On December 3, 2007, Movant pleaded guilty to Counts 1 and 2 of the s u p e rs e d in g information, pursuant to a written plea agreement in which he agreed to waive th e right to challenge his sentence, either on appeal or by collateral attack. This Court, on M a rc h 21, 2008, sentenced Movant to ninety-six months of incarceration as to Count 1 and s ix ty months of incarceration as to Count 2, to be served consecutively. This Court also s e n te n c e d Movant to five years of supervised release. United States v. Morris, File No. 1:07C R -1 9 3 (W.D. Mich. March 21, 2008). Movant did not appeal his conviction or sentence. M o v a n t filed his § 2255 motion on March 16, 2009. 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 (6 th Cir. 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 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.

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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 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). I I I. M o v a n t seeks relief based on ineffective assistance of counsel, for which he has three d is tin c t claims: (1) counsel failed to explain the true nature of Count 2 to Movant; (2) c o u n s e l failed to object to the government's violation of Movant's proffered privilege against s e lf -in c rim in a tio n ; and (3) counsel failed to object to the "government non-written open plea

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a g re e m e n t, which was nevered reach [sic], which had no safeguard, protection, or benefit for th e defendant." (Dkt. No. 1, Attach. to § 2255 Mot. 3.) T h e Court must first 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). The Sixth Circuit has held, in particular, that a movant's waiver b y plea agreement of his right to collaterally attack his sentence is generally enforceable. In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007). However, waiver of collateral attack may be u n e n f o rc e a b le "in cases where a defendant argues that his plea was not knowing or voluntary, o r was the product of ineffective 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 his plea agreement, Movant agreed to waive the right to challenge his conviction o r sentence on appeal or by collateral attack. The plea agreement states: T h e 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 any sentence that is at or below the maximum of the guideline ra n g e as determined by the Court. The defendant retains the right to appeal a s e n te n c e above the guideline range. This waiver is in exchange for the c o n c es s io n s made by the United States Attorney's Office in this plea a g re e m e n t. The defendant also waives the right to challenge such a sentence a n d the manner in which it was determined in any collateral attack, including b u t not limited to, a motion brought under Title 28 United States Code, § 2255.

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(F ile No. 1:07-CR-193, Dkt. No. 24, Am. Plea Agmt. ¶ 9.) However, because all three of M o v a n t's claims allege that his decision to enter into this plea agreement was the "product o f ineffective assistance of counsel," his waiver of collateral attack is unenforceable. Acosta, 4 8 0 F.3d at 422. Movant's first claim is that counsel failed to explain the true nature of Count 2 of the s u p e rs e d in g information, and that this failure resulted in Movant being charged with and c o n v ic te d of possessing a firearm in furtherance of drug trafficking, despite his innocence. T o make out a claim of ineffective assistance of counsel, Movant must show that counsel's re p re se n ta tio n fell below an objective standard of reasonableness and that counsel's deficient p e rf o rm a n c e prejudiced Movant. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). M o v a n t makes no attempt to argue that his counsel was objectively unreasonable and fails to explain what his counsel did or did not tell him that resulted in counsel's performance b e in g deficient. (Dkt. No. 1, Attach. to § 2255 Mot. 2.) Unsupported, conclusory statements a re "wholly insufficient to raise the issue of ineffective assistance of counsel." Elzy v. United S ta te s, 205 F.3d 882, 886 (6th Cir. 2000). "`[I]ssues adverted to in a perfunctory manner, u n a c co m p a n ie d by some effort at developed argumentation, are deemed waived.'" United S ta tes v. Hall, 549 F.3d 1033, 1042 (6th Cir. 2008) (quoting United States v. Johnson, 440 F .3 d 832, 846 (6th Cir. 2000)). Even if Movant was able to establish that his counsel was objectively unreasonable, h e is unable to show prejudice. While Movant is correct that the gun was wrapped in a

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b a n d a n a in a brown bag and that the mere presence of a firearm by itself is not enough to v io late § 924(c), he ignores the evidence that establishes his guilt. (Dkt. No. 1, Attach. to § 2255 Mot. 2.) The police found a loaded firearm in the apartment where Movant stored h is drugs. (Presentence Report ¶¶ 22, 32.) Movant also admitted that he had placed the f ire a rm there and that he purchased it for protection after his partner stole six pounds of m a riju a n a for them to sell. (Id. ¶¶ 33-34.) This evidence is enough to convict Movant of p o s s e s s in g the firearm in furtherance of drug trafficking. See United States v. Craft, 150 F. A p p 'x 413, 416 (6th Cir. 2005) (finding that a drug dealer's possession of a firearm for the p u rp o se of protection is in furtherance of drug trafficking). No matter what counsel told M o v a n t about the charge, the necessary elements to convict Movant still existed. Therefore, h e was not prejudiced by counsel's alleged failure. M o v a n t's second claim is that counsel's failure to object to the government's violation o f Movant's proffered privilege against self-incrimination resulted in the filing of the s u p e rs e d in g information. Movant makes no attempt at explaining this ambiguous allegation, a n d thus it is deemed waived. See Hall, 549 F.3d at 1042. Moreover, the record does not su p p o rt Movant's claim. If Movant is referring to the agreement concerning proffers in his p le a agreement, he is correct that the government did agree not to use information provided b y Movant in a proffer to enhance Movant's sentence. Paragraph 6(C) of the plea agreement s ta te s : T h e United States Attorney's Office also agrees that the information the d e f en d a n t provides pursuant to proffer, and any information to be provided 6

p u rsu a n t to the defendant's promise to cooperate as described in this ag re e m en t, will not be used by the government to enhance the Defendant's s e n te n c e pursuant to the Guidelines Section 1B1.8 and subject to the terms of th e written proffer agreement entered into between the parties. (File No. 1:07-CR-193, Dkt. No. 24, Am. Plea Agmt. ¶ 6(C).) However, the superseding inf o rm atio n could not have violated this agreement because it was filed one day before M o v a n t signed the plea agreement. (Id., Dkt. No. 19, Superseding Felony Info.) If Movant is referring to an agreement prior to the plea agreement, there is no indication in the record th a t such a proffer agreement granting Movant a privilege against self-incrimination existed. E v e n if there was such an agreement, there is no indication that the government violated the ag ree m en t by filing the superseding information or that counsel failed to object. When there is no support for Movant's allegations in the record, and those allegations are "conclusions ra th e r than statements of fact," an evidentiary hearing is not warranted. Engelen v. United S ta te s, 68 F.3d 238, 240 (8th Cir. 1995) (quoted in Arredondo v. United States, 178 F.3d 778, 7 8 2 (6th Cir. 1996)). M o v a n t's third claim is that counsel failed to object to the "government non-written o p e n plea agreement, which was nevered reach [sic], which had no safeguard, protection, or b e n e f it for the defendant." (Dkt. No. 1, Attach. to § 2255 Mot. 3.) Once again, Movant fails to make any attempt to explain this ambiguous allegation, and thus it is deemed waived. See H a ll, 549 F.3d at 1042. Moreover, it seems that Movant is alleging that his counsel failed to object to an oral plea agreement offered by the government which had no benefit for M o v a n t. However, Movant cannot show prejudice because, as he admits, this alleged a g re e m e n t was never reached. 7

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 rre c t his sentence pursuant to 28 U.S.C. § 2255 must be denied. Movant's motion to a p p o in t counsel will also be denied as moot. 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 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, 467 (6th Cir. 2001). R a th e r, 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. Upon review of each claim, the Court does not believe th a t a reasonable jurist would find the Court's assessment of Movant's claims debatable or w r o n g . Accordingly, a certificate of appealability 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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