Calais v. United States of America

Filing 17

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that Petitioner Dwayne Calais's motion to vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [# 1 ] is denied. IT IS FURTHER ORDERED that this court will not issue a certificate of appealability. A separate Judgment is issued in accordance with this Memorandum and Order. Signed by District Judge Catherine D. Perry on 10/28/2014. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DWAYNE CALAIS,
Petitioner,
vs.
UNITED STATES OF AMERICA,
Respondent

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Case No. 4:12 CV 2194 CDP

MEMORANDUM AND ORDER
Petitioner Dwayne Calais filed this motion to vacate, set aside, or correct
sentence under 28 U.S.C. § 2255. Calais was convicted of conspiracy to possess
and distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and sentenced to 188
months imprisonment. No. 4:09CR00192 CDP. He filed a direct appeal in the
United States Court of Appeals for the Eighth Circuit and his conviction was
affirmed. United States v. Calais, 428 Fed.Appx. 661 (2011) (per curiam
unreported opinion). Because the grounds for relief Calais raises are without
merit, I will deny his § 2255 motion to vacate, set aside, or correct sentence.
I. Background
In March of 2009, Dwayne Calais was indicted for conspiracy to distribute
and possess with intent to distribute more than five kilograms of cocaine and 50

grams of cocaine base in violation of 21 U.S.C. § 846 (Count I) and possession
with intent to distribute more than 500 grams of cocaine in violation of § 841(a)(1)
(Count II)1. Robert Taaffe Jr. represented Calais in the pretrial stages, but
withdrew before the trial began so he could be a witness for Calais. Bradford
Kessler and Molly Frances took over Calais’ representation and the first trial began
on April 12, 2010. Calais testified at the first trial and denied any involvement in
cocaine trafficking. The jury deliberated for a day and a half after the three-day
trial. The jury ultimately returned a not guilty verdict on the possession charge in
Count II, but was unable to reach a verdict on the conspiracy charge in Count I.
The not guilty verdict on Count II was accepted and a mistrial was declared as to
Count I.
Calais was retried on Count I in a second trial that began on June 7, 2010.
Kessler and Frances again represented him. Before the second trial, the
government learned that in February of 2010 – while Calais was on bond in this
case – a search warrant had been executed at his residence in Louisiana. Law
enforcement officers seized four ounces of cocaine and almost $15,000 from
Calais’ bedroom. Calais did not testify at the second trial. The jury returned a
verdict of guilty on Count I, finding that Calais had conspired to distribute and to
possess with intent to distribute more than five kilograms of cocaine.
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The indictment included eleven defendants and six counts. Only the two counts of the
indictment charging Calais are discussed in this memorandum.
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Before sentencing, Kessler and Frances withdrew as Calais’ attorneys.
Attorney Michael Jones represented Calais at sentencing and on appeal. The
presentence report concluded that Calais was responsible for at least 15 kilograms
of cocaine and calculated the base offense level as 34 under U.S.S.G. §
2D1.1(c)(4). In addition, the PSR assessed a two-level enhancement for
possessing a dangerous weapon under U.S.S.G. § 2D1.1(b)(1). Calais also
received a two-level enhancement for obstruction of justice under § 3C1.1 because
he testified falsely at his first trial. Calais objected to all three of these
determinations. At sentencing, the government conceded the quantity objection,
and so I ruled that Calais was responsible for at least five but less than 15
kilograms of cocaine, so the base offense level was 32 under § 2D1.1(c)(5). I
overruled the other two objections and determined the total offense level to be 36.
Calais had no prior adult convictions, so his advisory guidelines range was 188 to
235 months. I sentenced Calais to 188 months’ imprisonment.
Calais appealed his conviction and sentence to the United States Court of
Appeals for the Eighth Circuit. After filing the notice of appeal, his counsel filed a
statement that he believed there were no non-frivolous grounds for appeal and he
therefore sought to withdraw pursuant to Anders v. California, 386 U.S. 738
(1967). In the Anders brief, attorney Jones raised the following issues: (1) the trial
court improperly admitted Fed. R. Evid. 404(b) evidence, (2) the court erred in

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denying a mistrial after an officer involved in a traffic stop testified that Calais had
refused to talk to him, and (3) the court erred in imposing sentencing
enhancements for obstruction of justice and firearm possession. Calais filed a pro
se supplemental brief challenging the obstruction enhancement and denial of a
downward variance, and asserting that retrying him on Count I after the hung jury
violated the double jeopardy clause.
The Court of Appeals affirmed Calais’ conviction, finding that there was no
abuse of discretion in the admission of Rule 404(b) evidence or in the denial of a
mistrial. The Court also rejected all of the sentencing arguments and held that the
double jeopardy claim was without merit. The court reviewed the record
independently under Penson v. Ohio, 488 U.S. 75 (1988), and concluded that there
were no non-frivolous grounds for appeal. It therefore granted Jones leave to
withdraw and affirmed the judgment. Calais filed a petition for certiorari, which
was denied. United States v. Calais, 428 Fed.Appx. 661 (8th Cir. 2011) (per
curiam unpublished opinion), cert. denied 132 S. Ct. 1051 (2012).
II. Grounds for Relief
Calais raises four claims that his trial counsel were ineffective and two
claims that his appellate counsel was ineffective:
(1) Ineffective assistance of trial counsel for failing to argue that the
second trial was barred by double jeopardy;

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(2) Ineffective assistance of trial counsel for failing to correctly advise
him of the potential range of punishment and the possibility of
entering an open guilty plea;
(3) Ineffective assistance of trial counsel for failing to object to the
jury instructions’ inclusion of potential lesser drug quantities;
(4) Ineffective assistance at sentencing for counsel’s failure to cite to
appropriate case law in his objections to the presentence report;
(5) Ineffective assistance of appellate counsel for failing to raise the double
jeopardy claim; and
(6) Ineffective assistance of appellate counsel for failing to cite appropriate
legal support with regard to the obstruction of justice sentencing
enhancement.
III.

Discussion
In order to establish a claim for ineffective assistance of counsel a movant

must show that (1) his attorney’s performance was deficient and (2) that the
deficient performance resulted in prejudice. Strickland v. Washington, 466 U.S.
668, 687 (1984). Evaluation of counsel’s performance must be “highly
deferential” and there is a “strong presumption” that it falls within the range of
professionally reasonable assistance. Id. at 689. In order to demonstrate prejudice,
a petitioner must show that but for counsel’s errors, there is a reasonable
probability that the result would have been different. Id. If there is an insufficient
showing on one component of the Strickland test, a court does not need to address
the other component. Engelen v. United States, 68 F.3d 238, 241 (8th Cir. 1995).

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A. Grounds One and Five (double jeopardy)
Calais’s first and fifth grounds for relief claim that both his second trial
counsel and his appellate counsel were ineffective because they failed to argue that
the second trial was barred by double jeopardy, which Calais also refers to as
collateral estoppel. On direct appeal, the Eighth Circuit concluded that, “Calais’s
double jeopardy argument lacks merit.” Calais, 428 Fed.Appx. at 662. Failure to
make a meritless argument cannot, as a matter of law, constitute ineffective
assistance of counsel. Rodriguez v. United States, 17 F.3d 225 (8th Cir.1994).
Thus, neither trial nor appellate counsel could have been ineffective for failing to
raise this baseless claim, and Calais was not prejudiced by their failure because the
claim could not have succeeded. See Yeager v. United States, 557 US 110, 118
(2009) (re-prosecution after a hung-jury mistrial does not violate the constitutional
prohibition of double jeopardy).
B. Grounds Four and Six (sentencing)
Calais claims his attorney was ineffective on sentencing and appeal because
he failed to cite sufficient legal authority to support the sentencing objections. The
Eighth Circuit addressed the sentencing issues on direct appeal. The Court of
Appeals found that both the weapon and obstruction enhancements were proper. It
further concluded that there was no abuse of discretion by the District Court in

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declining any downward variance in sentencing under the factors listed in 18
U.S.C. § 3553(a).
Counsel appropriately raised the sentencing issues both before me and on
appeal. There is no case law that would have changed the result, and Calais cannot
show that there is a reasonable probability that he would have received a lesser
sentence if Jones had cited case law. In addition to rejecting the issues raised in
the Anders brief, the Court of Appeals conducted an independent review of the
record under Pearson v. Ohio and found that there were no non-frivolous issues for
appeal. Thus, any purported failure on the part of Jones to cite case law, in either
his objections to the presentence report or his Anders brief, did not result in any
prejudice. Calais’s fourth and sixth grounds for relief are without merit and will
be denied.
C. Ground Two
Calais’s second ground for relief is that he was denied effective assistance of
counsel because his trial attorneys failed to discuss the risks of proceeding to trial
and the sentencing possibilities that Calais would face if he were convicted. His
first attorney provided a sworn affidavit stating that he met with the Assistant
United States Attorney about potential sentences and plea offers, and that he
conveyed all the information to Calais. Taffe discussed the potential sentences,
including that if Calais lost at trial he could be looking at a range of 151 to 188

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months (that projection, of course, assumed that he would not commit perjury,
which necessarily raised the guidelines range). The government was proposing an
agreement that could have resulted in a range of 70 to 87 months. The safety valve
would not apply because of firearms found in the residence where the drugs
involved in the conspiracy were stored. Calais affirmed his desire to go to trial,
and indicated that he was not interested in any plea offers and did not want to make
a proffer, which would have been required for him to qualify for the safety valve.
Calais’s attorneys in the second trial, Kessler and Frances, also submitted
sworn affidavits indicating that they also discussed the potential sentence with
Calais on multiple occasions. They also told Calais that after the first trial that the
government was unwilling to make any concessions, and that any plea offers that
had been available before the first trial were no longer being offered.
Calais’ motion says that when attorney Kessler told him about the new and
damaging evidence that would likely be admitted at the second trial, Calais told
Kessler that he was tired of it all and wanted to take the five-year offer that he
claims the government made before the first trial. Even if I were to believe this
over the affidavits of both Kessler and Henshaw to the contrary, however, that
offer was no longer available. Calais also argues that he did not know he could
plead guilty without the government’s agreement. He appears to argue that had he
done so he would have received a lower sentence, and he even argues that he

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would have been eligible for the safety valve. This argument fails for several
reasons. First, Calais stops short of saying that he would actually have pleaded
guilty on open plea and taken his chances with the sentence. To plead guilty after
having testified under oath at the first trial that he was innocent would have
required him to admit that he had perjured himself at the first trial. There is no
doubt that he would have obtained the enhancement for obstruction of justice. He
would not have obtained the benefit of the safety valve because of the presence of
the firearm. Because of the perjury and his possession of cocaine while on bond it
is unlikely that he would have received any levels off for acceptance of
responsibility. Three attorneys have sworn that Calais was repeatedly told what he
was facing, and I conclude that he knew he could plead guilty and chose not to do
so because he knew he would be facing the same or very close to the same
sentence as if he were convicted at trial.
Calais has failed to make a sufficient showing to overcome the strong
presumption that counsel rendered adequate assistance, and he has failed to show
that he was prejudiced in any way. Therefore, his second ground for relief is
without merit and will be denied.
D. Ground Three
Calais also claims that he was denied effective assistance of counsel because
his lawyers failed to object to the verdict directing jury instruction at the second

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trial. Instruction No. 11 submitted the elements of the offense of conspiracy and
included as an element the quantity of cocaine in excess of five kilograms. The
instruction went on to tell the jury that if it found Calais not guilty of the fivekilogram conspiracy it could consider whether he was guilty of a conspiracy
involving a lower quantity of cocaine. The jury convicted him of the higher
quantity alleged in the indictment, however, so they never reached the issues
relating to any lower quantity. In order to show prejudice resulting from counsel’s
failure to object to the jury instruction, Calais would have to show that the court
would have changed the jury instruction if counsel had objected, and that is highly
unlikely, because the instruction was a correct statement of the law. Additionally,
a petitioner seeking post-conviction collateral relief must show not only that an
error was made, but also that it “worked to his actual and substantial disadvantage,
infecting his entire trial with error of constitutional dimensions.” United States v.
Frady, 456 U.S. 152, 169 (1982). Because the jury found Calais guilty of the more
serious offense, he could not have been prejudiced by the presence of the lesserincluded instruction, even if it might have been in error. Calais’ third ground for
relief will be denied.
E. Evidentiary Hearing
A court must order an evidentiary hearing unless the motion and the files
and the records of the case conclusively show that the prisoner is entitled to no

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relief. 28 U.S.C. § 2255(b). “No hearing is required, however, where the claim is
inadequate on its face or if the record affirmatively refutes the factual assertions
upon which it is based.” Anjulo-Lopez v. United States, 541 F.3d 814, 817 (8th
Cir. 2008) (internal quotation marks omitted). In the present case, as discussed
above, because Calais’s claims are either legally meritless or affirmatively refuted
by the records and files, I will not hold an evidentiary hearing.
F. Certificate of Appealability
A court may issue a certificate of appealability if a petitioner has made a
substantial showing of the denial of any constitutional right. 28 U.S.C. §
2255(c)(1). A substantial showing is one where the issues are debatable among
reasonable jurists, a court could resolve the issues differently, or the issues deserve
further proceedings. See Cox v. Norris, 133 F.3d 565, 569 (8th Cir.1997).
Because no reasonable jurist could find that Calais has made a substantial showing
of the denial of any constitutional right, I will not issue a certificate of
appealability.
Accordingly,
IT IS HEREBY ORDERED that Petitioner Dwayne Calais’s motion to
vacate, set aside, or correct sentence under 28 U.S.C. § 2255 [#1] is denied.
IT IS FURTHER ORDERED that this court will not issue a certificate of
appealability.

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A separate Judgment is issued in accordance with this Memorandum and
Order.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 28th day of October, 2014.

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