WOOTEN v. UNITED STATES OF AMERICA

Filing 10

OPINION. Signed by Judge Claire C. Cecchi on 1/20/17. (jr) Modified on 1/20/2017 (jr).

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ROBERT WOOTEN,
Civil Action No. 13-3608 (CCC)
Petitioner,
v.

:

OPINION

UNITED STATES OF AMERICA,
Respondent.

CECCHL District Judge:
Pro se Petitioner Robert Wooten, confined at the Federal Correctional Institution in
Bradford, Pennsylvania, has filed a Motion to Vacate, Set Aside or Correct Sentence pursuant to
28 U.S.C.

§ 2255 (“Petition”), challenging a judgment imposed by this Court in United States v.

Wooten, No. 11-cr-0695, ECF No. 21 (D.N.J. entered June 14, 2012) (“Crim. Dkt.”), for
conspiracy to possess with intent to distribute cocaine and unlawful possession of a firearm by a
convicted felon. For the reasons stated below, the Court denies the Petition.
I.

FACTUAL BACKGROUND

On June 14, 2012, pursuant to a guilty plea, this Court issued a judgment of conviction
against Petitioner for one count of conspiracy to possess with intent to distribute cocaine, in
violation of 21 U.S.C.
violation of 18 U.S.C

§ 846, and one count of possession of a firearm by a convicted felon, in

§ 922(g)( 1). (Cnm. Dkt., ECF No. 21.) Petitioner did not appeal the Court’s

judgment and sentence.
On June 10, 2013, Petitioner filed the instant Petition. Petitioner asserts two claims: (1)
trial counsel provided ineffective assistance because he failed to investigate the existence of

potential defenses prior to advising Petitioner to accept the guilty plea, and (2) trial counsel
provided ineffective assistance because he failed to discover that Petitioner was not a “felon”
within the definition of the felony firearms statute. The Court ordered Respondent to answer,
(ECF No. 4), which it did, (ECF No. 5). Petitioner then filed a traverse. (ECF No. 6.)
On July 23, 2015, Petitioner filed a Motion to Dismiss Indictment, in which he asserts
another claim, that the Controlled Substances Act, which governed his drug conviction, violates
the Tenth Amendment. (See ECF No. 7.) The Government responded arguing that the July 23,
2015 Motion should be dismissed as an improperly filed second petition. (ECF No. 8). Petitioner
submitted a reply on September 14, 2015. (ECF No. 9). In light of Petitioner’spro se status the
Court liberally construes the July 23, 2015 Motion as a supplement of the original Petition, and
will address it on the merits below.
II.

STANDARD OF REVIEW

A prisoner in federal custody under sentence of a federal court “may move the court which
imposed the sentence to vacate, set asiçle or correct the sentence” upon three grounds: (1) “that the
sentence was imposed in violation of the Constitution or laws of the United States”; (2) “that the
court was without jurisdiction to impose such sentence”; or (3) “that the sentence was in excess of
the maximum authorized by law.” 2$ U.S.C.

§ 2255(a).

A criminal defendant bears the burden of establishing his entitlement to
United States v. Davies, 394 F.3d 182, 189 (3d Cir. 2005). Moreover, as a

§ 2255 relief. See

§ 2255 motion to vacate

is a collateral attack on a sentence, a criminal defendant “must clear a significantly higher hurdle
than would exist on direct appeal.” United States v. frady, 456 U.S. 152, 166 (1982), cited in
United States v. Travillion, 759 F.3d 281, 288 (3d Cir. 2014). In considering a motion to vacate a
sentence, “the court must accept the truth of the movant’s factual allegations unless they are clearly

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frivolous on the basis of the existing record.” United States v. Booth, 432 f.3d 542, 545 (3d Cir.
2005) (internal quotation marks and citation omitted). “It is the policy of the courts to give a liberal
construction to pro se habeas petitions.” Rainey v. Varner, 603 F.3d 189, 198 (3d Cir. 2010)
(citation omitted). The Court may dismiss the motion without holding an evidentiary hearing if
the motion and the files and records of the case conclusively show that the prisoner is entitled to
no relief. See 28 U.S.C.

§ 2255(b); Liu v. United States, No. 11—4646, 2013 WL 4538293, at *9

(D.N.J. Aug. 26, 2013) (citing Booth, 432 F.3d at 545—46).
III.

DISCUSSION

A. Ineffective Assistance of Counsel
The Sixth Amendment guarantees the accused the “right

.

.

.

to have the Assistance of

Counsel for his defense.” U.S. Const. amend. VI. The right to counsel is the right to the effective
assistance of counsel, and counsel can deprive a defendant ofthe right by failing to render adequate
legal assistance. See Strickland v. Washington, 466 U.S. 668, 686 (1984). A claim that counsel’s
assistance was so defective as to require reversal of a conviction has two components, both of
which must be satisfied. Id. at 687. First, the defendant must “show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 687—88. To meet this prong, a
“convicted defendant making a claim of ineffective assistance must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.” Id. at
690. The court must then determine whether, in light of all the circumstances at the time, the
identified errors fell “below an objective standard of reasonableness[.]” Hinton v. Alabama, 134
S. Ct. 1081, 1083 (2014) (per curiam). To satisfy the second prong, prejudice, “a defendant need
not show that counsel’s deficient conduct more likely than not altered the outcome in the case.”
Strickland, 466 U.S. at 693. Rather, to establish prejudice, the defendant must show that “there is

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a reasonable probability that the result of the [case] would have been different absent the deficient
act or omission.” Hinton, 134 S. Ct. at 1083.’
i.

“Felon” Status

Petitioner first alleges that he received inadequate advice regarding his guilty plea to the
felony firearms possession because counsel failed to discover that he was not a “felon” within the
definition of the felony firearms statute. To support his claim, Petitioner points to 18 U.s.c.

§ 921 (a)(20), which provides that “[a]ny conviction which has been expunged, or set aside or for
which a person has been pardoned or has had civil rights restored shall not be considered a
conviction for purposes of this chapter[.]” Petitioner argues that because he was issued a Parole
Termination certificate by the State of New Jersey for his prior crime, (see ECF No. 6 at 13), that
conviction must be excluded under

§ 921 (a)(20) because the certificate acted as a restoration of

civil rights. However, Petitioner’s argument is supported neither by facts nor by law.
The Parole Termination certificate is merely a formal document evincing that Petitioner
served out the full term of his sentence. (See Id. (“Parole supervision by the Division of Parole is
hereby terminated by reason of expiration of maximum sentence[.]”) (emphasis added)). It did not
act as a restoration of Petitioner’s civil rights, as he argues; indeed, the letter attached to his
certificate expressly stated so. (Id. at 14 (“Your current incarceration term affects your standing
in New Jersey as it relates to full citizenship rights, same as it did when you were under parole
supervision here in New Jersey.”)). Furthermore, the Third circuit has defined the restoration of
civil rights under

§ 921(a)(20) as restoration of “the rights to vote, to hold public office, and to sit

The reasonable probability standard is less demanding than the preponderance of the
evidence standard. See Nix v. Whiteside, 475 U.S. 157, 175 (1986); Baker v. Barbo, 177 f.3d 149,
154 (3d cir. 1999).
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on ajury.” United States v. Leuschen, 395 F.3d 155, 159 (3d Cir. 2005). Nowhere does Petitioner
assert that his rights to vote, to hold public office, and to sit on a jury had been restored by the
State ofNew Jersey.2 As it does not appear that the Parole Termination Certificate made Petitioner
ineligible to be charged under the felony firearms statute, Defendant has not shown “that counsel’s
representation fell below an objective standard of reasonableness” or that there was prejudice.3 As
such, the Court denies relief on this ground.
ii. Failure to Investigate Possible Defenses

Petitioner’s October 21, 2013 traverse also states that counsel provided ineffective
assistance in light of counsel’s claimed “[f]ailure to [i]nvestigate the case before he advised
[Petitioner] to enter a plea of [g]uilty,” because “Counsel should have determined if [Petitioner]
was in fact found to be in possession of controlled substances or in fact, did distribute the alleged
controlled substances claimed by the Government.” (ECF No. 6 at iv). This argument fails as
well.
Petitioner has a right to raise a claim that he received inadequate advice regarding the plea
agreement itself, if that inadequate advice calls into question the intelligent and voluntary nature
of the guilty plea. See Hilt v. Lockhart, 474 U.S. 52, 57 (1985); United States v. Bui, 795 f.3d
363, 366-67 (3d Cir. 2015). However, when a defendant enters into a counseled, intelligent, and

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To the extent Petitioner argues that those rights were never taken away by the State of New
Jersey as part of his conviction, then § 921(a)(20) would not be applicable here at all. See Logan
v. United States, 552 U.S. 23, 37 (2007) (“Having no warrant to stray from § 921(a)(20)’s text, we
hold that the words ‘civil rights restored’ do not cover the case of an offender who lost no civil
rights.”).
Petitioner’s statement that “[h] ad the attorney challenged the felon status, it is possible that
he would have prevailed,” ECF No. 6 at 3 (emphasis added), misstates the standard for prejudice.
Although lower than a preponderance of the evidence standard a reasonable probability standard
still requires “a probability sufficient to undermine confidence in the outcome,” Hinton v.
Alabama, 134 S. Ct. 1081, 1089 (2014), which Petitioner has not established here.
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voluntary plea agreement, “he may not thereafter raise independent claims relating to the
deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Toltett v.
Henderson, 411 U.s. 258, 267 (1973); see United States v. Whitmer, 505 F. App’x 167, 173 (3d
Cir. 2012). Therefore, by pleading guilty, not only did Petitioner waive his right to raise any
affirmative defenses at trial, he also waived any potential ineffective assistance of counsel claims
relating to counsel’s failure to discover those defenses prior to the guilty plea. See Miller v.
Janecka, 558 F. App’x 800, $03 (10th Cir. 2014) (holding a claim of inadequate investigation by
counsel prior to the plea, which did not challenge the validity of the plea itself, was waived); Ghani
v. Holder, 557 F.3d 836, 839 (7th Cir. 2009) (holding ineffective assistance of counsel claim
alleging counsel’s failure to raise an affirmative defense based on the lack of an indictment was
waived by guilty plea because it did not challenge the voluntary and intelligent nature of the plea
itself); Lupinacci v. New Jersey, No. 13-5578, 2015 WL 505880, at *4 (D.N.J. Feb. 6, 2015)
(holding that Tollett barred ineffective assistance claims that occurred prior to the plea agreement
and were not related to the voluntary nature of the plea).
Here, Petitioner does not contend he received inadequate advice regarding the plea
agreement itself.

Rather, Petitioner asserts that counsel failed to fully investigate the

circumstances of Petitioner’s crime prior to his entry of a guilty plea. Specifically, Petitioner
contends that “[c]ounsel should have determined if [Petitioner] was in fact found to be in
possession of controlled substances or in fact, did distribute the alleged controlled substances
claimed by the Government.”4 (ECF No. 6 at 4.) However, “a counseled plea of guilty is an
admission of factual guilt so reliable that, where voluntary and intelligent, it quite validly removes

The Court notes that Petitioner was not convicted of possessing or distributing drugs under
21 U.S.C. § 841. Rather, he pled guilty to and was convicted of “conspiracy to possess with intent
to distribute a controlled substance” under 21 U.S.C. § 846. (Crim. Dkt., ECF No. 21.)
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the issue of factual guilt from the case.” United States v. Owens, 427 F. App’x 168, 171 (3d Cir.
2011) (quoting lienna v. New York, 423 U.S. 61, 62 n.2 (1975)). Accordingly, the Court denies
relief on this ground.5
B. Tenth Amendment Challenge

Finally, Petitioner argues that certain provisions of the Controlled Substances Act,
specifically 21 U.S.C.

§ $41 and 846,6 and 18 U.S.C. § 922(g) (prohibiting the possession of a

firearm “in or affecting commerce” by a convicted felon), violate the Tenth Amendment, because
they are an “unjustifiable expansion of federal law into the state regulated domain.” (ECF No. 27
at 2.) This argument is without merit.
The relevant provisions of the Controlled Substances Act fall within the scope of the
powers afforded to Congress by the Commerce Clause. See Gonzales v. Raich, 545 U.S. 1 (2005)
(holding that enforcement of2l U.S.C.

§ 841 was a permissible exercise of Congressional power

under the Commerce Clause). “If Congress acts under one of its enumerated powers.. there can
.

be no violation of the Tenth Amendment.” Treasurer ofNew Jersey v. U S. Dep ‘t of Treasuty,
684 F.3d 382, 413 (3d Cir. 2012) (citation omitted). Therefore, “the [Controlled Substances Act]
does not violate the Tenth Amendment.” Thompson v. Holder, 480 F. App’x 323, 325 (5th Cir.

Petitioner may also suggest that counsel was also ineffective because counsel for
Petitioner’s co-defendant suggested the “codefendant would enter a plea for the drugs if
[Petitioner] was willing to enter a plea to the firearm,” and Petitioner was willing to accept such
an agreement, but was told by counsel it was “not a good thing to do.” (ECF No. 6 at 4.) To the
extent this is Petitioner’s argument, this also fails. Petitioner has not shown that this advice from
counsel was unreasonable under the Strickland test, nor has he shown that there was any prejudice,
as Petitioner has not shown that such an plea offer was ever actually available.
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Section 841 makes it unlawful to “knowingly or intentionally—(1) to manufacture,
distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled
substance; or (2) to create, distribute, or dispense, or possess with intent to distribute or dispense,
a counterfeit substance,” and § 841 provides that “[a]ny person who attempts or conspires to
commit any offense defined in this subchapter shall be subject to the same penalties as those
prescribed for the offense, the commission of which was the object of the attempt or conspiracy.”
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2012); accord Montana Caregivers Ass ‘ii, LLC v. United States, 526 F. App’x 756, 758 (9th Cir.
2013). Furthermore, under the Dual Sovereignty Doctrine, both the state government and the
federal government enjoy independent authority to prosecute any criminal act that violates the
“peace and dignity” of each of the sovereigns. United States v. Lara, 541 U.S. 193, 197 (2004)
(“[W]hen a defendant in a single act violates the ‘peace and dignity’ of two sovereigns by breaking
the law of each, he has committed two distinct ‘offences.”) (quoting Heath v. Alabama, 474 U.S.
82, 88 (1985)). In other words, here, both the federal government and the State of New Jersey
could have prosecuted Petitioner independently, and the Controlled Substances Act did not intrude
upon New Jersey’s authority to prosecute.
Similarly, enforcement of 18 U.S.C.

§ 922(g) does not violate the Tenth Amendment.

Section 922(g) specifically only prohibits the possession of a firearm “in or affecting commerce.”
United States v. Singletary, 268 F.3d 196, 204 (3d Cir. 2001) (“Section 922(g)(1), by its very
terms, only regulates those weapons affecting interstate commerce by being the subject of
interstate trade.”). The Third Circuit has expressly held that this provision is “a constitutional
exercise of Congress’ Commerce Clause powers.” United States v. Tucker, 511 F. App’x 166, 169
(3d Cir. 2013). Therefore, for the reasons stated above, it does not violate the Tenth Amendment.
IV.

CONCLUSION

For the reasons set forth above, Petitioner’s Motion is DENIED without prejudice.

Claire C. Cecchi, U.S.D.J.
Dated:

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