Richardson v. United States of America

Filing 3

OPINION ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

WILLIE R. RICHARDSON,
Petitioner,
CASE NO. 1:12-CV-112
v.
HON. ROBERT J. JONKER
UNITED STATES OF AMERICA,
Respondent.
__________________________________/
OPINION AND ORDER
This matter is before the Court on Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set
Aside or Correct Sentence (docket # 1). The Court has carefully reviewed Petitioner’s motion and
determined that neither a government response nor an evidentiary hearing is necessary to the
resolution of this case. See Rule 8, RULES GOVERNING 2255 CASES; see also Arredondo v. United
States, 178 F.3d 778, 782 (6th Cir. 1999) (holding that an evidentiary hearing is not required when
the record conclusively shows that the petitioner is not entitled to relief).
BACKGROUND
A superseding indictment charged Petitioner with conspiracy to distribute and possess with
intent to distribute 50 grams or more of a mixture or substance containing a detectable amount of
cocaine base (crack cocaine), a Schedule II controlled substance under 21 U.S.C. § 846, § 841(a),
and 841(b)(1)(B)(iii). (Case No.1:08-cr-65, at docket # 42.) A four-day trial ensued. Petitioner
elected to testify at trial. Among other things, Petitioner described traveling to Detroit with his codefendant and procuring heroin and cocaine for resale. Petitioner described traveling to his

girlfriend’s trailer with his co-defendant and allowing co-defendant into the trailer to cook cocaine
into crack in Petitioner’s presence. (Case No.1:08-cr-65, at docket # 140.) Petitioner testified that
he sold heroin primarily and sold crack occasionally. (Id.) The jury unanimously found Petitioner
guilty of the crime with which he was charged. (Case No.1:08-cr-65, docket # 122.) The Court
sentenced Petitioner on April 24, 2009. Petitioner appealed his conviction. Among other things, he
argued that he was denied an impartial jury drawn from a fair cross-section of the community in
violation of the Sixth Amendment and Jury Selection and Service Act of 1968 (“JSSA”). (Case
No.1:08-cr-65, at docket # 1.) The Sixth Circuit affirmed the conviction, ruling that “because
defendants raised their objection [to the jury composition] . . . after the jury had been sworn in, their
claims under the JSSA [were] time-barred,” and that cause and actual prejudice did not exist to
excuse this waiver. (Id.)
In his 2255 motion, Petitioner challenges several aspects of both his conviction and his
sentence. First, he asserts that it was the duty of the jury, not the Court, to determine the drug
quantity actually attributed to him at sentencing. Second, he claims that his counsel provided
ineffective assistance at both the trial and appellate levels. Third, he argues that the evidence
presented at trial was insufficient to support the guilty verdict against him. Finally, he mounts a
general challenge to his sentence.
LEGAL STANDARD
A federal prisoner may challenge his sentence by filing in the district court where he was
sentenced a motion under 28 U.S.C. § 2255. A valid section 2255 motion requires a petitioner to
show that “the sentence was imposed in violation of the Constitution or laws of the United States,
the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the
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maximum authorized by law or is otherwise subject to collateral attack.” 28 U.S.C. § 2255(a).
Section 2255 affords relief for a claimed constitutional error only when the error had a substantial
and injurious effect or influence on the proceedings. Watson v. United States, 165 F.3d 486, 488 (6th
Cir. 1999). Non-constitutional errors generally are outside the scope of section 2255 relief, and they
should afford collateral relief only when they create a “fundamental defect which inherently results
in a complete miscarriage of justice, or, an error so egregious that it amounts to a violation of due
process.” Id. (internal quotation marks omitted). Petitioner has identified no such error.
ANALYSIS
1.

Drug Quantity

Petitioner’s claim that it was the duty of the jury, not the judge, to determine the drug
quantity attributable to him as relevant conduct for sentencing purposes is mistaken. The threshold
amount of crack cocaine attributable to the conspiracy is a question for the jury. Here, the jury found
beyond a reasonable doubt that 50 grams or more of crack cocaine was involved in the conspiracy
(Case No.1:08-cr-65, at docket # 122), which was the threshold at the time sufficient to trigger a
statutory penalty range of ten years minimum to a maximum of life in prison. But sentencing within
the authorized statutory range of ten years to life involves a separate inquiry. To calculate the base
offense level for purposes of sentencing, the court “considers the quantities of drugs that were ‘part
of the same course of conduct or common scheme or plan.’” U.S. v. Gibbs, 182 F.3d 408, 440 (6th
Cir. 1999). “The government bears the burden of proving the quantity of drugs chargeable to a
defendant for sentencing purposes by a preponderance of the evidence.” Id. (quotation omitted).
Here, the Court found that the evidence “amply supports conspiracy involving at least 500 grams of
crack cocaine,” and noted that the Court’s “own review of the presentence report struck [the Court]
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as being quite conservative in calculating the overall quantities attributable to the conspiracy.” (Case
No.1:08-cr-65, at docket # 174.) The jury verdict, including its quantity determination, opened an
authorized statutory sentencing range of ten years to life, and the Court’s final sentence was within
that range. Petitioner’s argument that the Court’s use at sentencing of facts the Court found by a
preponderance of the evidence concerning drug quantities therefore fails. See U.S. v. Zidell, 323
F.3d 412, 428 (6th Cir. 2003) (“[I]t does not matter whether . . . the term of imprisonment imposed
. . . reflects further drug quantity findings at sentencing by a preponderance of the evidence. . . . that
triggered an enhanced Sentencing Guideline range. . . . . Apprendi permits such a procedure at
sentencing, so long as the resulting sentence does not exceed the statutory maximum established
through the jury verdict alone.”).
2.

Ineffective Assistance

Normally, to establish a claim of ineffective assistance, a criminal defendant must show
deficient performance and actual prejudice. Strickland v. Washington, 466 U.S. 688, 687 (1984);
Roe v. Flores-Ortega, 528 U.S. 470, 476-77 (2000). A district court “must judge the reasonableness
of counsel’s challenged conduct on the facts of the particular case, viewed as of the time of counsel’s
conduct, and judicial scrutiny of counsel’s performance must be highly deferential.” Flores-Ortega,
528 U.S. at 477. Counsel must be “a reasonably competent attorney” and give “reasonable effective
assistance.” Strickland, 466 U.S. 687. Petitioner must show that “counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment.” Id. Actual prejudice means “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceedings would have been different.” Id. at 694.

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Petitioner has not established a claim of ineffective assistance, because he has not shown
either deficient performance or actual prejudice. Petitioner argues that his counsel provided
ineffective assistance at trial by failing to raise a timely objection to the composition of the jury
venire; at sentencing by failing to persuade the Court that sentencing enhancements for possession
of an AK-47 and for a leadership role were not warranted; and on appeal by failing to raise various
issues Petitioner wanted counsel to argue. None of Petitioner’s arguments persuade the Court of
either deficient performance or actual prejudice. The Court of Appeals already effectively disposed
of the jury venire issue by affirming Petitioner’s conviction. Though the Court of Appeals relied on
a waiver theory regarding the jury issue, this Court had found in the alternative that there was no
showing of systematic exclusion of minority jurors in any event.
As to the other issues, overwhelming evidence supported both the guilty verdict against
Petitioner and the sentencing enhancements. This evidence included non-party witness testimony
and physical evidence. But critically, Petitioner’s own testimony practically compelled conviction.
While on the witness stand, Petitioner acknowledged and detailed his involvement in the conspiracy
with which he was charged, explaining that he sold heroin primarily and crack cocaine occasionally.1
As for the sentencing enhancements, the Court described on the record at the sentencing hearing the
evidence supporting the sentencing enhancements both for possession of the AK-47 and a leadership
role. (Appeal Tr., docket # 174, pp. 16-17, 19-21.) On appeal, Petitioner’s counsel was not required
to advance every argument Petitioner wanted him to pursue. It was a reasonable strategy for counsel
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Indeed, Petitioner’s own testimony was so damaging that the Court decided not to apply an
obstruction enhancement at sentencing despite a legitimate basis to conclude that Petitioner perjured
himself in some respects during his testimony. (Case No.1:08-cr-65, at docket # 174, 23-28.)
Petitioner was apparently under the mistaken impression that he could beat the crack cocaine
conspiracy charge if he claimed his primary focus was heroin, not crack.
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to focus on the claim he wanted to highlight and not to press arguments he considered less likely to
succeed and which risked detracting from his principal claim. There is no basis to conclude that
counsel’s decision-making was deficient, or that the outcome of the proceedings would have been
different but for the alleged errors of Petitioner’s counsel. Petitioner’s claim of ineffective assistance
of counsel therefore fails.
3.

Sufficiency of Evidence

To determine whether there is sufficient evidence to support a conviction, courts must
consider whether “after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.” U.S. v. Martinez, 588 F.3d 301, 314 (6th Cir. 2009) (quotation omitted). It is beyond
dispute that sufficient evidence supported the guilty verdict against Petitioner. As already noted, the
extensive inculpatory evidence presented at trial included Petitioner’s own testimony acknowledging
and detailing his involvement in the conspiracy with which he was charged. Petitioner’s contention
that there was insufficient evidence to support the guilty verdict fails.
4.

Propriety of Sentence

Petitioner raises a general challenge to his sentence, in essence claiming that the Court failed
to follow the sentencing process delineated in 18 U.S.C. § 3553. This general challenge lacks merit.
There was no failure to follow the process the statute provides, as the transcript of the sentencing
hearing demonstrates. (Case No.1:08-cr-65, at docket # 174.) To the extent Petitioner is asserting
that the evidence the Court considered at sentencing was insufficient to support the sentence the
Court imposed, the contention fails. As already noted, ample evidence, which the Court described
in detail during Petitioner’s sentencing hearing, supports the sentence imposed.
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Conclusion
For these reasons, the Court concludes that Petitioner is not entitled to the relief he seeks.
Before Petitioner may appeal the Court’s dismissal of his petition, a certificate of
appealability must issue. 28 U.S.C. § 2253(c)(1)(B); FED. R. APP. P. 22(b)(1). The Federal Rules
of Appellate Procedure extend to district judges the authority to issue certificates of appealability.
FED. R. APP. P. 22(b); see also Castro v. United States, 310 F.3d 900, 901-02 (6th Cir. 2002). Thus
the Court must either issue a certificate of appealability indicating which issues satisfy the required
showing or provide reasons why such a certificate should not issue. 28 U.S.C. § 2253(c)(3); FED.
R. APP. P. 22(b)(1); In re Certificates of Appealability, 106 F.3d 1306, 1307 (6th Cir. 1997).
A certificate of appealability may issue “only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To make the required “substantial
showing,” the petitioner must demonstrate that “reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Miller-El v. Cockrell, 537 U.S. 322,
338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). The Court does not believe that
reasonable jurists would find the Court’s assessment of the claim Petitioner raised debatable or
wrong.
ACCORDINGLY, IT IS ORDERED:
Petitioner’s Motion under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence
(docket # 1) is DENIED.
IT IS FURTHER ORDERED that Petitioner’s request for a certificate of appealability is
DENIED.

Dated:

April 19, 2013

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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