Randolph v. United States of America

Filing 18

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that movant Albert Randolph's motion and amended motion under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody are DENIED. [Docs. 1 and 3]. IT IS FURTHER ORDERED that movant Albert Randolph has not made a substantial showing of the denial of a constitutional right such that reasonable jurists would find the Courts assessment of the constitutional claims debatable, or that reasonable jur ists would find it debatable whether the Court was correct in its procedural rulings, and therefore this Court will not issue a certificate of appealability on those claims. See Miller-El v. Cockrell, 537 U.S. 332, 338 (2003); Slack v. McDaniel, 529 U.S. 473, 484-85 (2000). Signed by District Judge Charles A. Shaw on 9/17/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ALBERT RANDOLPH,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 4:09-CV-1416 CAS

MEMORANDUM AND ORDER
This matter is before the Court on federal prisoner Albert Randolph’s motion pursuant to 28
U.S.C. § 2255 to vacate, set aside or correct sentence (“Motion to Vacate”). The motion is fully
briefed and ready for decision. For the following reasons, movant’s motion will be denied.
I. Background
On October 25, 2007, movant was indicted and charged with knowingly and intentionally
possessing with the intent to distribute five (5) grams or more of a mixture or substance containing
a detectable amount of cocaine base (crack) in violation of Title 21, U.S. Code, Section 841 (a)(1)
and punishable under Section 841 (b)(1)(B)(iii). Attorney Felicia A. Jones, a Federal Public
Defender, was appointed to represent movant. Ms. Jones filed a motion to suppress evidence and
statements on movant’s behalf. The motion was withdrawn, however, and movant filed a waiver
of pretrial motions.
In March 2008, the parties reached a plea agreement under which movant would plead guilty
to the charge against him. Movant signed a written Plea Agreement, Guidelines Recommendations
and Stipulations (“Plea Agreement”). Under the Plea Agreement, the parties agreed that movant’s
base offense level should be at least 26, but that the base level should be reduced by three levels

under United States Sentencing Guidelines (“U.S.S.G.” or “Guidelines”) Section 3E1.1(a) because
movant demonstrated acceptance of responsibility and “timely notified” the government of his
intention to enter a guilty plea. See Plea Agreement at 6-7. It is noted in the Plea Agreement that
the government “contends [movant] is a Career Offender and potentially subject to the provisions
of sec. 4B1.1, including a base level offense of 34 and a criminal history category VI.” Id. at 6. The
Plea Agreement also states that movant disagrees that he qualifies as a Career Offender. Id. The
Plea Agreement further states that “[movant] is fully aware . . . that if he is determined, based on his
criminal history, to be a Career Offender, under Sentencing Guidelines § 4B1.1, as the government
contends he is, then the Guideline sentence shall be determined under Sentencing Guidelines
§ 4B1.1, and not § 2D1.1, resulting in a total offense of 31.” Id. at 8.
As for Criminal History, the Plea Agreement states that the determination of defendant’s
Criminal History Category “shall be left to the Court after it reviews the Presentence Report. . . .
Both parties retain their right to challenge, before sentencing, the findings in the Presentence Report
as to [movant]’s criminal history and the applicable Criminal History Category. All decisions as to
the appropriate Criminal History Category by the Court, however, are final and not subject to
appeal.” Id. 8-9. Furthermore, “[movant] is pleading guilty with full knowledge of the possibility
of an enhanced sentence, has discussed this possibility with defense counsel, and acknowledges that
the guilty plea will not be withdrawn in the event the Presentence Investigation Report determines
the enhanced sentence applies to [movant]’s sentence. [Movant] does, however, retain the right to
litigate these issues at sentencing.” Id. at 12.
As for statutory penalties, the Plea Agreement provides “[movant] fully understands that the
maximum possible penalty provided by law as to Count I is imprisonment of not less than five years

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and not more than 40 years, or a fine of not more than $2,000,000, or both. . . . [Movant] fully
understands that under Count I, to which he is pleading guilty, he will be required to serve a
mandatory minimum of five years imprisonment.” Id. at 12.
With regard to representation, under the Plea Agreement movant agreed that he was “fully
satisfied with the representation he received from his defense counsel,” and that movant had
“reviewed the government’s evidence and discussed the government’s case and all possible defenses
and defense witnesses with defense counsel.” Id. at 15. The Plea Agreement provides that “defense
counsel completely and satisfactorily explored all areas [movant] had requested relative to the
government’s case and any defenses.” Id. With respect to coercion, the Plea Agreement states that
“neither defense counsel nor the government have made representations which are not included in
this document as to the sentence to be imposed.” Id. at 4. In addition, the Plea Agreement states that
“no person has, directly or indirectly, threatened or coerced [movant] to do or refrain from doing
anything in connection with any aspect of this case, including entering a plea of guilty.” Id. at 16.
On March 13, 2008, movant appeared with counsel before this Court and pleaded guilty as
charged. Movant took an oath to tell the truth and was asked several questions, the purpose of which
was to establish the voluntariness of his plea. Specifically, movant was asked his age, the extent of
his education, whether he was under the influence of alcohol or any drug, and whether he suffered
from any mental disease or defect. Hearing Transcript at 2-3. Movant gave appropriate responses
to all the questions asked. Movant was advised of the charge to which he was pleading guilty and
the range of punishment, which was five (5) to forty (40) years imprisonment. Id. at 3. Movant
stated under oath that he understood the charge and the range of punishment. Movant, his counsel,
and the government’s attorney were asked whether there had been any threats or promises made in

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exchange for movant’s guilty plea, and all responded that there had not. Id. at 7. The Court
accepted movant’s guilty plea, the matter was set for sentencing, and a Presentence Investigation
Report (“PSR”) was ordered.
In the PSR, prepared on May 2, 2008, movant’s total offense level was determined to be 31,
and his criminal history was calculated to be a category VI, based upon a total of ten criminal history
points. See PSR at 4, 7-8. According to the PSR, movant should be classified as a Career Offender
pursuant to Section 4B1.1 “due to his conviction from St. Louis County, Missouri for four counts
of Distribution of a Controlled Substance, each of which occurred on separate dates, under Docket
No. 03CR-199, and his conviction from St. Louis County, Missouri for Deliver of a Controlled
Substance, under Docket No. 02CR-3488.” Id. at 8. Movant’s Guidelines sentencing range was
calculated to be 188 to 235 months. Id. at 12.
Ms. Jones filed written objections to the PSR on movant’s behalf. She argued that movant
should not be classified as a Career Offender because the offenses upon which the prior state
convictions were based occurred over a short period of time, and they should be counted as a single
felony under the Sentencing Guidelines. Ms. Jones also argued, in the alternative, that should the
Court find movant is a Career Offender, he should be granted a downward departure because his
criminal history has been overstated. She also argued that the Court should consider a two-level
reduction because the base (crack) cocaine amendments did not apply to Career Offenders, and for
policy reasons they should. The government filed a memorandum in opposition to movant’s
objections.
The undersigned held a sentencing hearing on July 1, 2008. At the hearing, the Court heard
arguments regarding movant’s objections to the PSR and his classification as a Career Offender.

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Movant’s objections were overruled, and the Court found movant was a Career Offender because
there had been an intervening arrest between the relevant conduct upon which his prior state
convictions were based. Despite language in the Plea Agreement and the government’s opposition,
the Court allowed Ms. Jones to argue for a downward departure or variance. Ms. Jones argued
movant should receive a shorter sentence because movant’s prior offenses were non-violent, he had
received light sentences from the state, he was young, and he had a good relationship with his
family. Ms. Jones also argued that under the amendments to the Guidelines, Career Offenders are
not entitled to the two-level reduction that are granted to non-Career Offenders convicted of crack
cocaine offenses. Ms. Jones urged the Court to give movant, who was charged with a crack cocaine
offense, at least the two-level reduction, even though he was classified as a Career Offender. The
government objected to this argument. The Court, however, stated that it was inclined to agree with
Ms. Jones. After giving movant an opportunity to be heard, the undersigned granted movant a
downward variance and sentenced him to a term of imprisonment of 160 months, followed by four
(4) years of supervised release.
Movant filed a timely appeal, which was submitted to the Eighth Circuit Court of Appeals
on the record of the district court. Movant argued in his appeal that the district court abused its
discretion because it failed to consider all of the 18 U.S.C. § 3553(a) factors, and it imposed a
substantially unreasonable sentence. On June 8, 2009, the Eighth Circuit Court of Appeals rejected
movant’s arguments and affirmed the judgment of the district court. United States v. Randolph, 326
Fed. Appx. 974 (8th Cir. Jun. 8, 2009).

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In the § 2255 motion presently before the Court, movant asserts four grounds for relief:
Ground One: Movant’s counsel was ineffective at the sentencing hearing in that she
“inappropriately informed him of the magnitude of his criminal history category
pursuant to §4B1.1, which triggered a misinterpretation of [movant]’s sentencing
guidelines, and sentence[ ] imposed in his case.” See Doc. 3 at 6.
Ground Two: Movant’s counsel was ineffective in that she failed to object to
movant’s criminal history, and had she objected, he would not have been subject to
the Career Offender sentence.
Ground Three: Movant’s counsel was ineffective in that she failed to investigate and
research the application of the criminal history guidelines and the prior state
convictions applied in his case.
Ground Four: The district court erred in finding movant qualified as a Career
Offender in that it improperly relied on information detailed in the PSR, as opposed
to “documented evidence” of prior state convictions.

II. Legal Standard
Pursuant to 28 U.S.C. § 2255, a defendant may seek relief on grounds that the sentence was
imposed in violation of the Constitution or law of the United States, that the court lacked jurisdiction
to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the
sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255. To warrant relief under § 2255,
the errors of which movant complains must amount to a fundamental miscarriage of justice. Davis
v. United States, 417 U.S. 333 (1974); Hill v. United States, 368 U.S. 424, 428 (1962). The
Supreme Court has stated that “a collateral challenge may not do service for an appeal.” United
States v. Frady, 456 U.S. 152, 165 (1982).
“A § 2255 motion ‘can be dismissed without a hearing if (1) the [movant]’s allegations,
accepted as true, would not entitle the [movant] to relief, or (2) the allegations cannot be accepted
as true because they are contradicted by the record, inherently incredible, or conclusions rather than

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statements of fact.’” Sanders v. United States, 341 F.3d 720, 722 (8th Cir. 2003) (quoting Engelen
v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
III. Discussion
A.

Ineffective Assistance of Counsel

In Grounds One through Three, movant makes claims of ineffective assistance of counsel.
“To establish ineffective assistance of counsel within the context of section 2255, . . . a movant
faces a heavy burden.” United States v. Apfel, 97 F.3d 1074, 1076 (8th Cir. 1996). To prevail on
an ineffective assistance of counsel claim, movant must show that his counsel’s performance was
deficient and that he was prejudiced by the deficient performance. See McReynolds v. Kemna, 208
F.3d 721, 722 (8th Cir. 2000) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
“Counsel’s performance was deficient if it fell outside the wide range of professionally competent
assistance.” McReynolds, 208 F.3d at 723 (internal quotations and citations omitted). Prejudice is
shown if there is a “reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id.
1.

Movant’s plea was knowing and voluntary.

In Ground One, movant argues that Ms. Jones was ineffective in that she failed to inform him
of the magnitude of the Career Offender classification and the impact it would have on his sentence.
Although not clearly stated, movant implies that he was prejudiced because had he been given more
information about the Career Offender status and its effect on his sentence, he would not have
pleaded guilty and would have gone to trial. The record shows otherwise.

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The Strickland standard applies to guilty plea challenges premised upon allegations of
ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To satisfy the second
prong’s “prejudice” requirement, the movant must show “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, 474 U.S. at 59. A court may address the two prongs of the Strickland test in any order, and if
the movant fails to make a sufficient showing of one prong, the court need not address the other
prong. Strickland, 466 U.S. at 697; Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000).
Under Eighth Circuit law, “[i]naccurate advice of counsel about the sentencing guidelines
or likely punishment does not render involuntary a defendant’s decision to plead guilty, so long as
the defendant is informed of the maximum possible sentence permitted by statute and the court’s
ability to sentence within that range.” United States. v. Quiroga, 554 F.3d 1150, 1155 (8th Cir.
2009). See also United States v. Granados, 168 F.3d 343, 345 (8th Cir. 1999) (“a defendant’s
reliance on an attorney’s mistaken impression about the length of sentence is insufficient to render
a plea involuntary as long as the court informed the defendant of his maximum possible sentence.”);
United States v. Bond, 135 F.3d 1247, 1248 (8th Cir. 1998) (“[a] defense counsel’s erroneous
estimate of a guidelines sentence does not render an otherwise voluntary plea involuntary.”);
Roberson v. United States, 901 F.2d 1475, 1478 (8th Cir. 1990) (holding that a defendant’s reliance
on defense counsel’s erroneous prediction that he would receive a more lenient sentence if he pled
guilty did not make his plea involuntary, where the defendant was fully informed of the maximum
sentence on each count). The Eighth Circuit has held that this precedent is equally, if not more
applicable to cases where the Guidelines are “merely advisory.” Quiroga, 554 F.3d at 1156.

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The case at bar is very similar to the facts in Matthews v. United States, 114 F. 3d 112 (8th
Cir. 1997). The petitioner in Matthews asserted a claim of ineffective assistance because he claimed
he pleaded guilty on his trial counsel’s assurance that his potential sentencing range would be five
to eight years of imprisonment, and yet he received a sentence of 20 years of imprisonment on one
count, and 10 years of imprisonment on a second count. In finding the petitioner had suffered no
prejudice as a result of the misinformation he received from his counsel, the Eighth Circuit wrote:
[W]e find it unnecessary to determine if Matthews’ counsel performed in a deficient
manner because we are satisfied that Matthews suffered no actual prejudice from
counsel’s alleged errors. Matthews alleged he pleaded guilty on his trial counsel’s
assurance that the potential sentencing range would be five to eight years of
imprisonment. Regardless of what his trial counsel advised him concerning the
length of the potential sentences that might result from his guilty pleas, the record
demonstrates that the trial judge clearly explained the potential maximum sentence
to Matthews at the plea proceeding. The trial court advised Matthews that he faced
a maximum term of 40 years of imprisonment on one count and 20 years of
imprisonment on the other count. . . . Matthews indicated that he understood, and he
proceeded to enter a plea of guilty. There is no indication that Matthews would not
have pleaded guilty had his counsel, in addition to the trial judge, properly advised
him of the maximum potential sentence.
Id. at 114.
The same analysis applies here. Movant does not state in his petition or memoranda exactly
what misinformation Ms. Jones provided him. To the extent movant is claiming that Ms. Jones told
him that he would not be classified as a Career Offender or gave him misinformation about the
possible length of a sentence he would receive, these claims are not supported by the record. It is
clear movant understood there was a possibility that he would be classified a Career Offender, and
he was apprised of the range of punishment.
First, the Plea Agreement, which movant signed, states that the government will contend that
movant is a Career Offender, and “if he is detemined, based on his criminal history, to be a Career

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Offender, under the Sentencing Guidelines § 4B1.1, as the Government contends he is, then the
Guideline sentence shall be determined under the Sentencing Guidlines § 4B1.1 and not § 2D1.1,
resulting in a total offense level of 31.” See Plea Agreement at 7. Movant knew, based on the Plea
Agreement, that there was a possibility that he would be classified at sentencing as a Career
Offender, which would significantly impact the length of his sentence.
Second, movant stated under oath at the change of plea hearing held on March 13, 2008, that
he understood the charge and the range of punishment, including that he was subject to a statutory
mandatory minimum term of five years and a possible term of 40 years imprisonment.
In sum, movant has not established that his counsel’s performance was deficient. Strickland,
466 U.S. at 687; McReynolds, 208 F.3d at 723. He also cannot show how he was prejudiced
because his plea was knowing and intelligently made. Even if his counsel provided him with
misinformation regarding the length of sentence he would receive – which movant has not explicitly
claimed she did – movant was correctly informed at the change of plea hearing of the maximum and
minimum sentence he was facing, and knowing that he was facing up to 40 years imprisonment, he
entered a guilty plea. Movant simply cannot show “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,
474 U.S. at 59. The Court finds movant’s claim arose out of disappointment that the Court ruled in
the government’s favor on the issue of his status as a Career Offender, and imposed a sentence that
was longer than he had hoped.

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2.

Movant’s counsel did object to the Career Offender classification.

In Ground Two, movant claims that Ms. Jones erred by failing to object to the Career
Offender classification at the sentencing hearing. The Court does not agree with movant’s
characterization of what occurred at the hearing. Ms. Jones did indeed object to the application of
the Career Offender status to movant. She argued in her written brief and during the hearing that
two of movant’s prior state convictions should be treated as a single felony because there was an
absence of an intervening arrest. The Court did not agree with Ms. Jones and overruled the
objection. The Court found that it was undisputed that between the time of the drug sales for which
he was convicted, movant had been arrested and taken into custody. Movant does not state in his
petition or memoranda in support how Ms. Jones mishandled this argument, or what other objections
or arguments Ms. Jones should have made but failed to make. On the record before it, the Court
cannot find that movant has met the Strickland two-part test based on Mr. Jones’s alleged failure to
object to the Career Offender classification, because she did object. Therefore, the Court cannot
conclude Mr. Jones’s performance during the sentencing hearing was deficient, or that movant was
prejudiced by his counsel’s conduct.
Furthermore, Ms. Jones also moved for a downward departure, which movant received. She
argued movant should receive a two-level reduction based on the amendments to the crack cocaine
guidelines, even though he was classified as a Career Offender. Despite the government’s
objections, the Court agreed with Ms. Jones, and the Court sentenced movant below the Guidelines
for a Career Offender.

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3.

Movant’s counsel did not fail to investigate the prior state convictions.

In Ground Three movant faults his counsel for failing to investigate the prior state
convictions that were listed in the PSR. This claim is also without merit. From the transcript of the
sentencing hearing it is clear that Ms. Jones did attempt to investigate the prior state convictions
upon which the Career Offender classification was based. She noted that she had procured records
and had tried to located a booking sheet. See Transcript at 5. Movant only states in a conclusory
manner that she failed to investigate the prior state convictions. He does not state what more she
could have done. Therefore, the Court cannot conclude Ms. Jones’s performance was deficient in
this respect.
What is more, movant has not shown how he was prejudiced by Ms. Jones’s supposed failure
to investigate. Movant does not claim that the prior state convictions were in some way invalid, and
there is no indication whatsoever that the prior state convictions, as presented in the PSR, were in
any way inaccurate. There was simply no prejudice as a result of Ms. Jones’s supposed errors, and
movant’s claim fails under Strickland.
B.

The Court Did Not Error in Sentencing Movant as a Career Offender.

In Ground Four movant faults the Court for relying on the PSR in finding him a Career
Offender. Movant argues that the Court should have used “documented evidence,” as opposed to
relying on information in the PSR in deciding whether he qualified as a Career Offender. This claim
is procedurally barred because movant could have raised it on appeal. It is also without merit.
If a claim could have been raised on direct appeal but was not, it cannot be raised in a § 2255
motion unless the movant can show both (1) “cause” that excuses the default, and (2) “actual
prejudice” resulting from the errors of which he complains. See Frady, 456 U.S. at 168; Matthews,

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114 F.3d at 113. If a movant is unable to show “cause” and “actual prejudice,” he must make a
“substantial claim that constitutional error has caused the conviction of an innocent person . . . .”
Schlup v. Delo, 513 U.S. 298, 321 (1995). A claim of actual innocence must be based on “new
evidence,” and must convince the Court that “it is more likely than not that no reasonable juror
would have found [movant] guilty beyond a reasonable doubt.” Id. at 327. See also Embrey v.
Hershberger, 131 F.3d 739, 741 (8th Cir. 1997) (applying Schlup actual innocence standard in the
context of a § 2255 motion), cert. denied, 525 U.S. 828 (1998).
“Cause” under the cause and prejudice test “must be something external to the [movant],
something that cannot fairly be attributed to him,” for example, a showing that the factual or legal
basis for a claim was not reasonably available, or that some interference by officials made
compliance with the procedural rule impracticable. Stanley v. Lockhart, 941 F.2d 707, 709 (8th Cir.
1991) (citing Coleman v. Thompson, 501 U.S. 722 (1991)); see also Greer v. Minnesota, 493 F.3d
952, 957-58 (8th Cir. 2007).
Movant does not make a claim of actual innocence and he has not attempted to show cause
for his failure to raise the claim in Ground Four on direct appeal.1 Therefore, the claim is
procedurally barred. But even if the Court were to review the claim on the merits, it would be
dismissed. As stated above, movant has not alleged, and there is nothing in the record to indicate
that the PSR was somehow inaccurate as to movant’s prior state convictions. Movant has made no
showing that his prior state convictions were invalid or overstated in the PSR. There is no basis for

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Movant argues in his memorandum in support of his petition that there is cause and
prejudice to lift the procedural bar to his ineffective assistance of counsel claims. Movant does not
assert there are grounds to lift the procedural bar as to his claim that the district court erred in
sentencing him as a Career Offender.
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movant’s argument that it was error for the district court to have relied on the PSR and applied the
Career Offender classification in this case.
IV. Conclusion
In his motion pursuant to 28 U.S.C. § 2255 to vacate, set aside or correct sentence, movant
has failed to raise a meritorious and cognizable claim. In Grounds One through Three, movant has
raised claims of ineffective assistance of counsel. These claims are without merit because movant
has not shown his counsel’s performance was constitutionally defective and that he suffered
prejudice. The claim in Ground Four of error by the district court is procedurally barred because
the issue could have been raised on appeal. Moreover, the Court finds it is without merit.
Accordingly,
IT IS HEREBY ORDERED that movant Albert Randolph’s motion and amended motion
under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody
are DENIED. [Docs. 1 and 3].
IT IS FURTHER ORDERED that movant Albert Randolph has not made a substantial
showing of the denial of a constitutional right such that reasonable jurists would find the Court’s
assessment of the constitutional claims debatable, or that reasonable jurists would find it debatable
whether the Court was correct in its procedural rulings, and therefore this Court will not issue a
certificate of appealability on those claims. See Miller-El v. Cockrell, 537 U.S. 332, 338 (2003);
Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).

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An appropriate judgment will accompany this memorandum and order.

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE

Dated this

17th

day of September, 2012.

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