Woods v. USA

Filing 24

OPINION MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct Sentence, [Doc. 1], is DENIED. IT IS FURTHER ORDERED that this Court will not issue a Certificate of Appealability as Movant has not made a substantial showing of the denial of a federal constitutional right.A separate judgment is entered this same date. Signed by District Judge Henry E. Autrey on 11/14/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
ROBERT Q. WOODS,
Movant,
vs.
UNITED STATES OF AMERICA,
Respondent.

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No. 1:12CV88 HEA

OPINION, MEMORANDUM AND ORDER
This matter is before the Court on Movant’s Motion under 28 U.S.C. § 2255
by a Person in Federal Custody, [Doc. No. 1] Pursuant to this Court’s Order, the
government has responded to the motion to vacate. Subsequent to the filing of the
original Motion, Movant advised the Court that he seeks only to pursue his claim
that counsel was ineffective for failing to object to the assessment of two criminal
history points for his allegedly un-counseled misdemeanor. For the reasons set
forth below, the Motion is denied without a hearing.
Movant’s Claim
Movant makes a single claim in his Motion: counsel was ineffective for
failing to object to the two criminal history points assessed against him for a
misdemeanor that was allegedly adjudicated without counsel.
Facts and Background

The grand jury charged in Count I that on August 19, 2009, Movant
distributed a mixture or substance containing cocaine base in violation of 21
U.S.C. § 841(a)(1); in Count II, Movant was charged with distributing five or
more grams of a mixture or substance containing cocaine base on August 25,
2009, in violation of 21 U.S.C. § 841(a)(1); Count III charged Movant with
manufacturing five grams or more of a mixture or substance containing cocaine
base in violation of 21U.S.C. § 841(a)(1); in Count IV, Movant, was charged with
possessing with the intent to distribute five or more grams of cocaine base on
August 25, 2009 in violation of 21 U.S.C. § 841(a)(1).
On April 19, 2010, pursuant to a written plea agreement, Movant entered a
plea of guilty to Counts I, II and III of the indictment. As part of the plea
agreement, the Government dismissed Count IV. In the plea agreement, the parties
stipulated that the possible penalty for Count I of the indictment was a term of
imprisonment of not more than 20 years and/or a fine of not more than $1,000,000,
or both such fine and imprisonment. As to Counts II and III, the parties agreed
that there is a mandatory minimum sentence of at least five years but not more
than 40 years imprisonment, and a fine of not more than $2,000,000 or both such
imprisonment and fine. The plea agreement was signed by Woods, his counsel,
and the Government.
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The Government agreed that it would not seek to institute any further
charges against Movant for any violations of federal laws which had occurred
within the Eastern District of Missouri and which arose out of or were related to
the facts underlying the charges to which Movant entered a guilty plea, and of
which the Office of the United States Attorney for the Eastern District of Missouri
was aware at the time of the plea.
As part of the plea process, the Government announced that it had
previously filed a notice of enhanced sentence under 21 U.S.C. §851, which had
the effect of raising the mandatory minimum sentences in Counts II and III to ten
years. The Government then requested to withdraw the notice of enhanced
sentence.
The Court accepted Movant’s plea, finding that the plea was knowingly and
voluntarily entered of his own free will and that Movant was fully cognizant of the
range of punishment applicable to Counts I, II and III. The Court therefore
ordered that a presentence investigation report be prepared. Sentencing was set
for July 20, 2010.
A Presentence Report (PSR) was prepared by the United States Probation
Office, Officer Paul H. Boyd. Under the heading of “Offense Conduct” the report
set forth the following facts with regard to Movant’s criminal conduct.
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The investigation into the distribution of cocaine base by Movant began on
August 17, 2009, when a cooperating informant met with Special Agents for the
Drug Enforcement Administration regarding Movant’s distribution of controlled
substances in the Cape Girardeau, Missouri area. The PSR reflected that for the
previous 18 months the CI had purchased cocaine base from Movant on at least 50
occasions, normally in one gram quantities, but on at least one occasion at least
seven grams. The CI reported that on two occasions, Movant converted cocaine
into cocaine base at the CI’s residence. On one occasion, Movant created 56 grams
of cocaine base, and 26 grams on another occasion. Utilizing a second
confidential informant, DEA agents and local law enforcement officers purchased
.67 grams of cocaine base from Movant for $100. This conduct constituted
Count I of the indictment. On August 25, 2009, the confidential informants made
arrangements with Movant to purchase 11 grams of cocaine base for $800.
Movant then sold the confidential informants 7.2 grams of cocaine base for $500.
This constituted Count II of the indictment.
Movant stated that he had more cocaine base available, but he needed to
convert it from cocaine powder. Movant left the area and then returned to the CI’s
apartment a short time later with a quantity of cocaine which he converted into
cocaine base. Officers were able to observe the conversion process by a camera
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secreted in the apartment. The officers believed that Movant converted the cocaine
powder into about 28 grams of cocaine base. This conduct served to support the
offenses charged in Counts II and IV of the indictment.
In summary, the PSR concluded that Movant was responsible for
distributing and possessing with intent to distribute at least 172.87 grams of
cocaine base. The PSR recommended that the base offense level be set at 32
because the offenses involved at least 150 grams but less than 500 grams of
cocaine base. After subtracting two levels for acceptance of responsibility
pursuant to U.S.S.G. §3E1.1(a), the total offense level was recommended to be 30.
Movant’s criminal history category was set forth under part B of the PSR.
On June 7, 2002, at the age of 17, Movant was convicted of his first criminal
offense. He was convicted of Assault on a Law Enforcement Officer and
Resisting/Interfering With Arrest. He was sentenced to 60 days in jail on the
Assault and 30 days on the Resisting/Interfering charge. The executions of the
sentences were suspended, and Movant was placed on probation but his probation
was revoked, because he violated his conditions of probation by committing new
criminal conduct, including possessing weapons and using cocaine. Within seven
months of being released from his first sentence, Movant committed his next
criminal offense. On December 5, 2003, he possessed more than five grams of
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cocaine base with the intent to distribute. On June 28, 2004, he was sentenced in
the United States District Court for the Eastern District of Missouri to 63 months in
the Bureau of Prisons, to be followed by a four year term of supervised release.
The Presentence Report reflected that Movant was responsible for 32.5 grams of
cocaine and a firearm. This sentence was later reduced to 60 months pursuant to 18
U.S.C. §3582(c)(2).
Movant was released from custody on July 16, 2008, and six months later, on
January 29, 2009, his supervised release was revoked for a number of violations,
including the use of cocaine and marijuana. Movant was sentenced to four months
in the Bureau of Prisons, followed by 52 months of supervised release. He was
next released from prison on May 15, 2009. Movant committed the instant offense
while on supervised release for the 2004 possession of cocaine base with intent to
distribute. Movant’s criminal convictions resulted in a criminal history score of 8,
establishing a criminal history category of IV.
Based upon a total offense level of 30 and a criminal history category of IV,
the guideline imprisonment range was recommended at 135-168 months.
On August 30, 2010, Petitioner filed objections to the Presentence Report
contending, among other things that the recommended offense level of 32 was not
correct because it was based in part on statements of confidential witnesses who he
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claimed were not credible. There was no claim as to what the proper offense level
should be.
The parties appeared for sentencing on October 19, 2010, and the
Government’s witnesses were prepared to testify as to the scope of Movant’s
relevant conduct. At the sentencing hearing, defense counsel stated that they were
withdrawing any previously filed objections to the PSR and that there were no
longer any objections on behalf of Movant. Movant, standing by his counsel at the
time the objections were withdrawn in open court, remained silent, voicing no
objection. The Court’s docket entry noted that “Defendant withdraws his
objections to the PSR.”
The Government then stated that even though Movant had not announced
until the day before the hearing that he would be accepting the PSR and not
contesting those facts, the Government recommended that Movant receive three
points for acceptance of responsibility, as opposed to two as recommended in the
PSR. This brought the final offense level to 29 and the guideline range to 121-151
months.
The Court then accepted the facts as set out in the PSR. The Court found
that the final offense level was 29, and with a criminal history category of IV, the
suggested guideline range was 121-151 as to Counts I, II and III.
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Following argument, the District Court entered its order and judgment that,
pursuant to the Sentencing Reform Act of 1984 as well as the provisions of 18
U.S.C. §3553(a), and in consideration of the arguments set forth by counsel, that
Movant be committed to the custody of the Bureau of Prisons for a term of 121
months as to Counts I, II and III, to be served concurrently. The Court then took up
the issue of whether the sentence imposed would run concurrently or consecutively
to any sentence which would be imposed for revocation of Movant’s supervised
release. The Court ordered the sentences run consecutively.
Movant filed a direct appeal in the Eighth Circuit Court of Appeals. In his
appeal, Movant raised three grounds: (1) that the District Court abused its
discretion in denying his motion to continue his sentencing hearing until 90 days
after the effective date of the Fair Sentencing Act; (2) the District Court erred in
sentencing the defendant based upon a mistake in statement of the Probation
Officer as to the status of proposed amendments to the United States
Sentencing Guidelines; and (3) the District Court erred by imposing an
unreasonable sentence.
The Eighth Circuit denied Movant’s appeal and affirmed the sentence
previously imposed. United States v. Woods, 642 F.3d 640 (8th Cir. 2011). None
of the grounds alleged in petitioner’s current §2255 motion were raised on direct
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appeal.
On December 2, 2011, Movant filed a motion for reduction of sentence
pursuant to 18 U.S.C. §3582(c)(2) based upon Amendment 750 to the United States
Sentencing Guidelines. The Court found that under the amended guidelines,
Petitioner’s final offense level would be reduced from 29 to 25 and his guideline
range would be 84 to 105 months. The Court then sentenced the defendant to a
term of 84 months.
Standards for Relief Under 28 U.S.C. 2255
Pursuant to 28 U.S.C. § 2255, a federal prisoner may seek relief from a
sentence imposed against him on the ground that “the sentence was imposed in
violation of the Constitution or law of the United States, or that the court was
without jurisdiction to impose such sentence, or that the sentence was in excess of
the maximum authorized by law, or is otherwise subject to collateral attack.” 28
U.S.C. § 2255. Claims brought under § 2255 may also be limited by procedural
default. A Movant “cannot raise a nonconstitutional or nonjurisdictional issue in a
§ 2255 motion if the issue could have been raised on direct appeal but was not.”
Anderson v. United States, 25 F.3d 704, 706 (8th Cir. 1994) (citing Belford v.
United States, 975 F.2d 310, 313 (7th Cir. 1992)). Furthermore, even
constitutional or jurisdictional claims not raised on direct appeal cannot be raised
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collaterally in a § 2255 motion “unless a petitioner can demonstrate (1) cause for
the default and actual prejudice or (2) actual innocence.” United States v. Moss,
252 F.3d 993, 1001 (8th Cir. 2001) (citing Bousley v. United States, 523 U.S. 614,
622 (1998)). Claims based on a federal statute or rule, rather than on a specific
constitutional guarantee, “can be raised on collateral review only if the alleged
error constituted a ‘fundamental defect which inherently results in a complete
miscarriage of justice.’” Reed v. Farley, 512 U.S. 339, 354 (1994)(quoting Hill v.
United States, 368 U.S. 424, 477 n. 10 (1962)).
The Court must hold an evidentiary hearing to consider claims in a § 2255
motion “unless the motion, files and records of the case conclusively show that the
prisoner is entitled to no relief.” Shaw v. United States, 24 F.3d 1040, 1043 (8th
Cir. 1994)(citing 28 U.S.C. § 2255). Thus, a “[movant] is entitled to an evidentiary
hearing ‘when the facts alleged, if true, would entitle [movant] to relief.’” Payne v.
United States, 78 F.3d 343, 347 (8th Cir. 1996)(quoting Wade v. Armontrout, 798
F.2d 304, 306 (8th Cir. 1986)). The Court may dismiss a claim “without an
evidentiary hearing if the claim is inadequate on its face or if the record
affirmatively refutes the factual assertions upon which it is based.” Shaw, 24 F.3d
at 1043. Since the Court finds that Movant’s remaining claims can be conclusively
determined based upon the parties’ filings and the records of the case, no
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evidentiary hearing will be necessary.
Discussion
Standard for Ineffective Assistance of Counsel
It is well-established that a petitioner’s ineffective assistance of counsel
claim is properly raised under 28 U.S.C. § 2255 rather than on direct appeal. United
States v. Davis, 452 F.3d 991, 994 (8th Cir.2006); United States v. Cordy, 560 F.3d
808, 817 (8th Cir. 2009). The burden of demonstrating ineffective assistance of
counsel is on a defendant. United States v. Cronic, 466 U.S. 648, 658 (1984);
United States v. White, 341 F.3d 673, 678 (8th Cir.2003). To prevail on an
ineffective assistance of counsel claim, a convicted defendant must first show
counsel’s performance “fell below an objective standard of reasonableness.”
Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The defendant must also
establish prejudice by showing “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different. Id., at 694.
Both parts of the Strickland test must be met in order for an ineffective
assistance of counsel claim to succeed. Anderson v. United States, 393 F.3d 749,
753 (8th Cir.), cert. denied, 546 U.S. 882 (2005). The first part of the test requires
a “showing that counsel made errors so serious that counsel was not functioning as
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the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. Review of
counsel’s performance by the court is “highly deferential,” and the Court presumes
“counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. The court does not “second-guess” trial strategy or rely on the
benefit of hindsight, id., and the attorney’s conduct must fall below an objective
standard of reasonableness to be found ineffective, United States v. LedezmaRodriguez, 423 F.3d 830, 836 (2005). If the underlying claim (i.e., the alleged
deficient performance) would have been rejected, counsel's performance is not
deficient. Carter v. Hopkins, 92 F.3d 666, 671 (8th Cir.1996). Courts seek to
“eliminate the distorting effects of hindsight” by examining counsel’s performance
from counsel’s perspective at the time of the alleged error. Id.
The second part of the Strickland test requires that the movant show that he
was prejudiced by counsel’s error, and “that ‘there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” Anderson, 393 F.3d at 753-54 (quoting Strickland, 466 U.S. at
694). “A reasonable probability is a probability sufficient to undermine confidence
in the outcome.” Strickland, 466 U.S. at 694. When determining if prejudice
exists, the court “must consider the totality of the evidence before the judge or
jury.” Id. at 695; Williams v. U.S., 452 F.3d 1009, 1012-13 (8th Cir. 2006).
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The first prong of the Strickland test, that of attorney competence, is applied
in the same manner to guilty pleas as it is to trial convictions. The prejudice prong,
however, is different in the context of guilty pleas. Instead of merely showing that
the result would be different, the defendant who has pled guilty must establish that
“there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985); Matthews v. United States, 114 F.3d 114.
Movant argues that counsel was ineffective because counsel did not object to
the two criminal history points. Movant argues that he was convicted of the
misdemeanor without the assistance of counsel, and therefore, it was improper to
include this misdemeanor in the calculation of his criminal history.
The record belies Movant’s claims of ineffective assistance. Movant was
indeed given the opportunity to question counsel’s failure to object; after hearing
that counsel withdrew the objections to the PSR and that there were no further
objections, Movant could have addressed the Court. Moreover, the Court
specifically asked Movant if he had anything to say on his own behalf before the
Court imposed sentence. Movant took the opportunity to address the Court. At
that time, he said nothing of his dissatisfaction with his attorney; he said nothing of
his belief that the misdemeanor should not be included in his criminal history
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calculations, despite the fact that he claims to have been continuously raising the
issue with counsel and the probation office prior to sentencing.
Notwithstanding that Movant has failed to show counsel’s performance was
deficient, Movant has also failed to establish prejudice from any of counsel’s
actions. The two points were added to Movant’s criminal history calculation based
on the record which establishes that Movant waived his right to counsel in the
misdemeanor proceeding. Consequently, Movant cannot demonstrate that but for
counsel’s failure to object, the two points would not have been assessed.
Conclusion
Based upon the foregoing analysis, Movant’s claim of ineffective assistance
of counsel fails to afford him relief.
Certificate of Appealablity
The federal statute governing certificates of appealability provides that “[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).
A substantial showing of the denial of a constitutional right requires that “issues
are debatable among reasonable jurists, a court could resolve the issues differently,
or the issues deserve further proceedings.” Cox v. Norris, 133 F.3d 565, 569 (8th
Cir. 1997). Based on the record, and the law as discussed herein, the Court finds
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that Movant has not made a substantial showing of the denial of a constitutional
right.
Accordingly,
IT IS HEREBY ORDERED that the Motion to Vacate, Set aside or Correct
Sentence, [Doc. 1], is DENIED.
IT IS FURTHER ORDERED that this Court will not issue a Certificate of
Appealability as Movant has not made a substantial showing of the denial of a
federal constitutional right.
A separate judgment is entered this same date.
Dated this 14th day of November, 2013.

_______________________________
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE

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