Martin v. United States of America

Filing 44

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED THAT Movant Joseph Martin's Motion to Vacate, Set Aside, or Correct Sentence under 28 U.S.C. § 2255 is DENIED and DISMISSED WITH PREJUDICE. A separate Order of Dismissal will accompany this Memora ndum and Order. FURTHER ORDERED that Movant Joseph Martin's request for a review of the Governments threat assessment cases is DENIED. FINALLY ORDERED that, because Movant Joseph Martin cannot make a substantial showing of the denial of a constitutional right, the Court will not issue a certificate of appealability. See 28 U.S.C. § 2253(c). Signed by District Judge Jean C. Hamilton on 01/10/2014. (CLK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
JOSEPH MARTIN, JR.

Movant,
v.
UNITED STATES OF AMERICA
Respondent.

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No.4:11-CV-00705-JCH

MEMORANDUM AND ORDER
This matter is before the court on Movant Joseph Martin‟s Motion to Vacate, Set Aside
or Correct Sentence (“Motion to Correct”), which he filed pursuant to 28 U.S.C. § 2255. The
matter has been fully briefed and is ready for disposition.
On May 30, 2008, Martin pleaded guilty to two violations of 21 U.S.C. § 841(a)(1),
which makes it “unlawful for any person knowingly or intentionally—(1) to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance[.]” 21 U.S.C. §841(a)(1); United States v. Martin, 583 F.3d 1068, 1070 (8th Cir.
2009). Martin received a 160-month sentence. Martin, 583 U.S. at 1070. This has since been
reduced to a 120-month sentence pursuant to 18 U.S.C. § 3582(c)(2). The original 160-month sentence

was based primarily on the sentencing court‟s findings (1) that Martin had distributed 90.67
grams of cocaine base rather than cocaine powder; (2) that during several post-plea telephone
calls from prison Martin denied culpability for his crimes and was therefore not entitled to a
sentence reduction for acceptance of responsibility; and (3) that during several post-plea
telephone calls from prison Martin made threats amounting to obstruction of justice and was

therefore deserving of increased sentencing range. (Sentencing Hearing Transcript, (“Snt. Hrng.
Tr.”)). The sentence was affirmed by the Eighth Circuit, which also denied a rehearing and a
rehearing en banc, and the United States Supreme Court denied certiorari. Martin, 583 F.3d at
1075; Martin v. United States, 130 S. Ct. 2355 (2010). On April 18, 2011, Martin filed this
Motion to Correct under § 2255 to request a further reduction of his sentence.1 (ECF No. 1).
Martin has also filed several supplements to his motion. (ECF Nos. 21, 23, 24, 29, 36). The
Government has responded to each filing, and Martin has replied to each response in turn.
Martin‟s motion and corresponding supplements raise several grounds for relief. Martin
claims he is entitled to a reduced sentence because (1) he did not obstruct justice; (2) he was
eligible for an acceptance of responsibility sentencing reduction; (3) his criminal history was
impermissibly enhanced; (4) he sold cocaine powder rather than cocaine base; and (5) the
sentencing distinction between cocaine powder and cocaine base is unconstitutional. Martin also
makes eight ineffective assistance of counsel claims at various points in the briefing of his
motion: (1) that his defense counsel was ineffective during the plea negotiations; (2) that his
defense counsel failed to object to the format of the sentencing hearing; (3) that his defense
counsel failed to adequately cross-examine the government‟s witnesses at the sentencing
hearing; (4) that his defense counsel failed to review all of the jailhouse tapes relied upon by the
Government at the sentencing hearing; (5) that his defense counsel failed to object to admission
of the tape excerpts at the sentencing hearing; (6) that his defense counsel failed to raise the issue

Martin also requested an order that “the government produce threat assessment cases that were
supposedly opened in order to justify the obstruction of justice enhancement.” (Memorandum in Support
of Movant‟s § 2255 Motion, (“Memo in Support of Mtn.”), at 16). This is not proper relief under § 2255.
1

of sentencing entrapment; (7) that his defense counsel failed to argue that Martin‟s plea
agreement had been violated; and (8) that his appellate counsel was ineffective.2
DISCUSSION
Under § 2255, a federal prisoner may seek relief on the ground that “the sentence was
imposed in violation of the Constitution or laws 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. The Court
must hold an evidentiary hearing to consider claims in a § 2255 motion “[u]nless the motion and
the files and records of the case conclusively show that the prisoner is entitled to no relief[.]” 28
U.S.C. § 2255(b). Thus, a movant is entitled to an evidentiary hearing “„when the facts alleged, if
true, would entitle him 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 v. United States, 24
F.3d 1040, 1043 (8th Cir. 1994) (citation omitted).
Martin‟s first five claims are not cognizable on collateral review. First, they were validly
waived in Martin‟s plea agreement (the “Plea Agreement”). DeRoo v. United States, 223 F.3d
919 (8th Cir. 2000).3 Also, Martin‟s claim that he is entitled to relief because he sold cocaine
powder and not cocaine base was raised and rejected on direct appeal. English v. United States,
Several of Martin‟s claims were raised in his First Supplement/Amendment (“First Supplement”). (ECF
Nos. 21, 23, 24). Martin requested leave to file his First Supplement on April 27, 2012. (ECF No. 18).
The Court denied that motion, but Martin filed the First Supplement in spite of the Court‟s denial. The
Court has reviewed the claims raised in the First Supplement and decided to dispose of them on the
merits.
3
Martin has claimed that he received ineffective assistance of counsel during his plea negotiations, which
would undermine the validity of Martin‟s waiver if his claim has merit. For reasons discussed below,
however, the court determines that Martin did not receive ineffective assistance of counsel during plea
negotiations, and the waiver of his collateral review rights was therefore valid.
2

998 F.2d 609, 613 (8th Cir. 1993). Finally, the other four of Martin‟s first five claims have been
procedurally defaulted because they were not raised on direct appeal, and Martin cannot show
“cause” for or “prejudice” resulting from that failure. Jennings v. United States, 696 F.3d 759,
762-63 (8th Cir. 2012).
Martin‟s ineffective assistance of counsel claims, however, are cognizable, and each
warrants a brief discussion. (Plea Agreement at 4); Massaro v. United States, 538 U.S. 500, 504
(2003).

In order to prevail on an ineffective assistance of counsel claim, a claimant must show
that his attorneys‟4 performance was “deficient,” and “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). “The benchmark for judging
any claim of ineffectiveness must be whether counsel‟s conduct so undermined the proper
functioning of the adversarial process that the trial [or other stage at which the defendant had a
right to effective counsel] cannot be relied on as having produced a just result.” Id. at 686. This
is not an easy showing to make because counsel is “strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of reasonable professional
judgment.” Id. at 690. To overcome this presumption, a claimant must prove that, “in light of
all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Id.
1. Plea Negotiations
Martin claims that he received ineffective assistance of counsel at the plea negotiation
stage. (Memorandum Concerning Ineffectiveness of Counsel During Plea Negotiations, (“Plea
Neg. Memo”)). In support of his claim, Martin does nothing but provide lengthy quotations from

4

Martin was represented jointly by two attorneys at the plea and sentencing stages, and then by a separate
third attorney on direct appeal.

Lafler v. Cooper, 132 S. Ct. 1376 (2012) and Missouri v. Frye, 132 S. Ct. 1399 (2012). (Plea
Neg. Memo at 3-9). It is true that both Lafler and Frye stand for the proposition that criminal
defendants are entitled to effective counsel during plea negotiations, but both were decided after
Martin had been sentenced and do not apply retroactively. Williams v. United States, 705 F.3d
293 (8th Cir. 2013).
To the extent Martin‟s claim reaches beyond the application of Lafler and Frye, Martin
has not provided any factual allegations related to the deficiency of his attorneys during plea
negotiations. The Court finds that Martin‟s summaries of inapplicable law, unsupported by a
single fact, cannot support a claim for ineffective assistance of counsel during plea negotiations
and do not warrant an evidentiary hearing.
2. Failure to Object to Sentencing-Hearing Format
Martin next claims that he received ineffective assistance of counsel because his
attorneys failed to object to the sentencing-hearing procedure. (First Supplement at 3; Final
Supplement). In the Plea Agreement, the parties made clear that they disagreed about whether
Martin was guilty of selling cocaine powder or cocaine base. (Plea Agreement at 10-11). The
parties then agreed that the determination should be made by the judge at the sentencing hearing.
Id. At the plea hearing, Martin stated that he had gone through the Plea Agreement in detail with
his defense counsel and that there was nothing in the Plea Agreement with which he disagreed.
(Plea Hearing Transcript, (“Plea Hrng. Tr.”), at 5).
Martin now claims that his defense attorneys were ineffective for failing to argue that
under Apprendi v. New Jersey, 530 U.S. 466 (2000), his Sixth Amendment rights were violated
because the determination of whether Martin sold cocaine powder or cocaine base should have
been made by a jury. (First Supplement at 4). Under Apprendi, any fact that increases the

statutory maximum penalty must be presented to a jury. Id at 490. This was the case for Martin.
A finding that he had sold cocaine base carried a statutory maximum of life imprisonment, while
a finding that he had sold cocaine powder carried a statutory maximum of twenty years. (Plea
Hrng. Tr. at 6). 5 “But nothing prevents a defendant from waiving his Apprendi rights. When a
defendant pleads guilty, the [prosecution] is free to seek judicial sentence enhancements so long
as the defendant either stipulates to the relevant facts or consents to judicial factfinding.” Blakely
v. Washington. 542 U.S. 296, 310 (2004) (emphasis added).
Martin made exactly the sort of waiver contemplated in Blakely. The Plea Agreement sets
out the disagreement between the defense and prosecution in relation to the classification of the
drugs sold by Martin and states explicitly that the parties intended to put on evidence related to
that issue at the sentencing hearing. Martin made clear under oath that he examined the Plea
Agreement in detail with his defense counsel and did not object to any part of it. Martin has not
presented a single fact that calls into question the validity of his statements at the plea hearing.
Thus, even if the court accepts as true that Martin‟s defense counsel failed to object to the
sentencing-hearing format, Martin‟s claim does not present a ground for relief. Martin‟s defense
counsel did not undermine confidence in the reliability of the adversary process by failing to
object to proceedings to which his well-informed client consented.6

5

The Court notes that although Martin was sentenced within the statutory maximum for cocaine powder,
the determination of whether his defense counsel acted reasonably must be made based on
contemporaneous actions. The Court therefore views the facts as they were prior to the sentencing
hearing.
6
In Martin‟s final supplement, he argues for the retroactive application of Alleyne v. United States, 133 S.
Ct. 2151 (2013). The Alleyne Court overruled Harris v. United States, 536 U.S. 545 (2002), and held that
facts that could increase a minimum sentence must be presented to a jury. There has been no
determination as to whether Alleyne applies retroactively. Regardless, though, the argument is nothing
more than an extension of Martin‟s Apprendi argument and is subject to the same infirmity—Martin
validly waived his right to have the powder/base distinction determined by a jury.

3. Failure to Cross-Examine
Martin‟s next claim is that he received ineffective assistance of counsel in that his
defense counsel failed adequately to cross-examine the government‟s witnesses at the
sentencing hearing. (Memorandum in Support of Movant‟s § 2255 Motion, (“Memo in Support
of Mtn.”), at 18-21). More specifically, Martin claims that his counsel‟s failure to “employ any
trial tactic or strategy” on cross-examination “affected materially the outcome of the sentencing
court‟s decision to find Movant did not accept responsibility and had engaged in obstruction of
justice.” (Memo in Support of Mtn. at 19). Martin then lists six specific alleged errors committed
by his defense counsel to support the proposition that his defense counsel did not employ any
strategy on cross-examination. (Memo in Support of Mtn. at 19-20).
In reviewing an attorney‟s performance in the context of an ineffective assistance claim,
courts should “generally entrust cross-examination techniques, like other matters of trial strategy,
to the professional discretion of counsel.” United States v. Villalpando, 259 F.3d 934, 939 (8th
Cir. 2001). At the sentencing hearing, Martin‟s defense counsel7 demonstrated a thorough
knowledge of the case and well-considered theories for explaining Martin‟s behavior. (See Snt.
Hrng. Tr.). His cross-examination was pointed and clearly tied to the theories he had developed.
(See Sent. Hrng. Tr. at 32-50, 77-82). The court refuses to rely on the benefit of hindsight to
nitpick the performance of Martin‟s defense counsel on cross-examination. A detailed review of
the sentencing hearing transcript, together with the underlying facts and law of Martin‟s criminal
case, demonstrates that Martin‟s defense counsel acted well within the wide range of reasonable
professional competence acceptable under Strickland.

7

Only one of Martin‟s two defense attorneys conducted cross-examination at the sentencing hearing.

4. Failure to Review All Tapes
Martin also claims that his attorneys were ineffective because they failed to review all of
the recorded jailhouse telephone conversations in which Martin participated, which caused them
to be insufficiently prepared for the sentencing hearing. (Memo in Support of Mtn. at 16-17).
The crux of Martin‟s argument appears to be that the phone calls on which the government based
its arguments that Martin obstructed justice and failed to accept responsibility were a nonrepresentative sample of all of the phone calls Martin made between his plea and sentencing
hearings—that put in their proper context the calls would have been understood differently. Id. at
16-21.
It is well established that counsel need not investigate every possible avenue to provide
effective assistance. Strickland, 466 U.S. 668, 690-91. Counsel can provide effective assistance
by making reasonable strategic decisions based on a limited investigation as long as “reasonable
professional judgments support the limitations on investigation.” Id. at 691.
Here, the government had several recorded phone calls in which Martin denied
responsibility for his crimes, threatened various types of harm to potential witness, and explained
that he could manipulate the jail visitation system. (Sentencing Memorandum, (“Snt. Memo”), at
13-32). Given the content and nature of those specific calls, it would have been entirely
reasonable for Martin‟s defense counsel to limit their investigation only to those calls, if that is
indeed what happened.
Nor is there a reasonable probability that defense counsels‟ review of all of the tapes
would have changed the outcome. Indeed, much of defense counsel‟s cross-examination at the
sentencing hearing tended toward the very argument that Martin claims a complete review of the
tapes would have demonstrated—that many of the phone calls relied upon by the sentencing

court were taken out of context or misunderstood. (Sent. Hrng Tr. at 78-82). The sentencing
court therefore made its decision in spite of, and not in the complete absence of, the argument at
the crux of this ineffective assistance claim. Thus, even if accepted as true, Martin‟s allegation
that his defense counsel did not review all of the phone conversations does not satisfy either
prong of Strickland.
5. Failure to Object to Admission of Tape Excerpts
Martin‟s next claim is that his defense counsel was ineffective for failing to object to the
admission of the jailhouse tape excerpts at the sentencing hearing. (Memo in Support of Mtn. at
22). Since it does not appear from the sentencing hearing transcript that the tapes were admitted
into evidence, the Court, construing Martin‟s pro se motion liberally, understands Martin‟s claim
to be based on a failure by his defense counsel to object to the testimony of the witness who
summarized the content of the jailhouse calls and at a few points quoted those calls. (Snt. Hrng.
Tr. at 62-84). Either way, Martin has provided no sound objection on which his defense counsel
could have relied, and Martin‟s defense counsel cannot be found ineffective for failing to make a
groundless evidentiary objection.
6. Failure to Raise Issue of Sentencing Entrapment
Martin‟s sixth claim is that his defense counsel was ineffective for failing to raise the
issue of sentencing entrapment. (First Supplement at 2). This allegation is flatly contradicted by
the record. Martin‟s defense counsel argued at the sentencing hearing that “there is not such a
thing necessarily as sentencing entrapment, but if there were, this is it.” (Snt. Hrng. Tr. at 58).
While Martin‟s defense counsel partially misstated the law in that there actually is such a thing
as sentencing entrapment, Martin, 583 U.S. at 1073-74, he went on to argue that Martin was
indeed a victim of sentencing entrapment.

Moreover, Martin would not be able to establish prejudice even if his defense counsel
had failed to argue that Martin was the victim of sentencing entrapment. Martin raised the
sentencing entrapment argument on direct appeal, and the Eighth Circuit rejected it. Martin, 583
U.S. at 1074 (“There is no evidence that Martin was indisposed to this course of events.”).
Martin can therefore demonstrate neither prong of Strickland with the claim that his defense
counsel failed to argue sentencing entrapment.
7. Failure to Argue Violation of Plea Agreement
Martin‟s seventh claim is that his counsel was ineffective for failing to argue that the
Government breached the Plea Agreement. (First Supplement at 2). The Eighth Circuit analyzed
whether there had been a breach of the Plea Agreement under a plain error standard on direct
appeal:
The agreement stated that the government could refrain from
recommending an acceptance of responsibility reduction if new information
came to light after the plea and before sentencing. [Plea Agreement at 7].
The agreement also released the government from its responsibilities if
Martin engaged in post-plea criminal conduct. [Plea Agreement at 12].
Martin's statements from jail and violations of jail rules triggered both of
these provisions, which allowed the government to refrain from
recommending an acceptance of responsibility reduction. Further, the plea
agreement also stated that guidelines issues not mentioned in the agreement
but raised by the PSR could be presented to the court for consideration.
[Plea Agreement at 8]. The PSR recommended an obstruction of justice
enhancement, Martin opposed the enhancement, and the government
responded. The government did not initiate the obstruction of justice
enhancement, arguing in favor only after it was already before the court.
Thus, there was no breach of the agreement.
Martin, 583 F.3d at 1074-75.
While the Eight Circuit‟s analysis was conducted in the context of a different legal
standard than the Court uses here, its analysis is sufficient to conclude under either standard that
there was no breach of the Plea Agreement. Therefore, Martin‟s defense counsel was not

ineffective for failing to argue that there was a breach, and Martin cannot demonstrate prejudice
based on his attorney‟s failure to so argue.
8. Appellate Counsel
Martin‟s final claim is that he received ineffective assistance of appellate counsel because
his appellate counsel failed to request a rehearing under Federal Rule of Civil Procedure 59(e).
(Memo in Support of Mtn. at 15). Again construing Martin‟s pro se motion liberally, the Court
understands Martin‟s argument to be based on his appellate counsel‟s failure to make a postconviction motion under Federal Rule of Criminal Procedure 33, 34, or 35. But Martin has
provided no legal basis for such a motion, nor has he made an argument explaining why his
appellate counsel acted unreasonably by arguing Martin‟s case only on appeal. Martin‟s claim of
ineffective assistance of appellate counsel is therefore without merit.

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED THAT Movant Joseph Martin‟s Motion to Vacate, Set
Aside, or Correct Sentence under 28 U.S.C. § 2255 is DENIED and DISMISSED WITH
PREJUDICE. A separate Order of Dismissal will accompany this Memorandum and Order.
IT IS FURTHER ORDERED that Movant Joseph Martin‟s request for a review of the
Government‟s “threat assessment cases” is DENIED.
IT IS FINALLY ORDERED that, because Movant Joseph Martin cannot make a
substantial showing of the denial of a constitutional right, the Court will not issue a certificate of
appealability. See 28 U.S.C. § 2253(c).

Dated this 10th Day of January, 2014

/s/ Jean C. Hamilton
UNITED STATES DISTRICT JUDGE