Robinson v. USA

Filing 12

ORDER denying Motion to Vacate, Set Aside or Correct Sentence (2255). Signed by District Judge Martin Reidinger on 12/28/2010. (Pro se litigant served by US Mail.)(pdf)

R o b i nson v. USA

Do c. 12

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE WESTERN DISTRICT OF NORTH CAROLINA AS H E V IL L E DIVISION C IV IL CASE NO. 1:09cv473 [Criminal Case No. 1:07cr32]

DARIAN KENDELL ROBINSON,

) ) P e t it io n e r , ) vs. ) ) UNITED STATED OF AMERICA, ) ) R e s p o n d e n t .)

ORDER

TH IS MATTER is before the Court on the Petitioner's Motion under 28 U . S . C . §2255 to Vacate, Set Aside, or Correct Sentence by a Person in F e d e ra l Custody [Doc. 1]. P R O C E D U R AL HISTORY O n April 3, 2007, the Petitioner was charged in a one-count Bill of In d ic tm e n t with conspiracy to possess with intent to distribute 50 or more g ra m s of cocaine base, in violation of 21 U.S.C. §§ 846(a)(1) and 846. [C rim in a l Case No. 1:07cr32, Doc. 1]. On July 9, 2007, he entered into a plea a g re e m e n t with the Government whereby he agreed to plead guilty to Count O n e of the Bill of Indictment. [Id., Doc. 79]. In exchange for the Petitioner's

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g u ilty plea, the Government agreed it would not file a section 851 notice of R o b in s o n 's second qualifying felony conviction. [Id., Doc. 178, at 19.] P u rs u a n t to his Plea Agreement, the Petitioner also waived his right to contest h is conviction and sentence on appeal or post-conviction motion except for c la im s of ineffective assistance of counsel and prosecutorial misconduct. [Id., D o c . 79]. Three months after the entry of his guilty plea, the Petitioner filed a s e c o n d motion requesting the removal of his counsel, Mr. Rollman, and s e e k in g appointment of new counsel. [Id., Doc. 93]. On October 11, 2007, Mr. R o llm a n filed a motion to withdraw, asserting a conflict of interest. [Id., Doc. 9 2 ]. The Court granted counsel's motion to withdraw and the Petitioner's m o tio n for the appointment of new counsel. [Id., Doc. 96]. The Court a p p o in te d Stanford K. Clontz to represent the Petitioner. [Id., Doc. 100]. O n March 19, 2008, Mr. Clontz filed a motion to withdraw the P e titio n e r's guilty plea. [Id., Doc. 138]. At a hearing on the motion, the

P e titio n e r then changed his mind and orally moved to withdraw his motion to with d ra w the plea, a motion granted by the Court. [Id., Doc. 149]. Mr. Clontz a ls o moved to withdraw from the Petitioner's case because the Petitioner had re ta in e d Richard Beam and Steve Dolly to represent him. [Id., at 142]. The

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C o u rt granted that motion. T h e probation officer prepared a revised presentence report ("PSR") on A p ril 15, 2008. [Id., Doc. 152]. The Petitioner and his counsel met on several o c c a s io n s to discuss the matters contained in the PSR, including the prior c o n vic tio n s used to establish his career-offender status. [ Doc. 8-2, at ¶¶ 2-3]. T h e Petitioner also prepared written objections to all matters in the PSR that h e deemed inappropriate. [Id., at ¶ 5]. According to the Petitioner's counsel, th e Petitioner claimed that he was never indicted on one of the two prior fe lo n y convictions which formed the basis of his career offender status. [Id., a t ¶ 6]. The Petitioner's counsel confirmed the conviction by obtaining a c e rtifie d copy of that conviction from the New Jersey Court. [Id.; Doc. 8-1]. T h e Petitioner did not question the other conviction supporting his career o ffe n d e r status. The Petitioner's career offender status raised his total offense level by fiv e levels, for a total offense level of 34, and increased his criminal history c a te g o ry from V to VI. [Criminal Case No. 1:07cr32, Doc. 152]. On June 18, 2 0 0 8 , the Petitioner filed an objection under 21 U.S.C. § 851(c), denying that th e prior conviction alleged in the § 851 Notice should be used as a basis to in c re a s e his potential punishment. [Id., Doc. 167]. On June 25, 2008, the

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C o u rt sentenced Petitioner to 276 months imprisonment plus ten years of s u p e rvis e d release. [Id., Doc. 170]. O n July 1, 2008, Petitioner filed a pro se Notice of Appeal in the Fourth C irc u it Court of Appeals. [Id., Doc. 172]. The Fourth Circuit appointed

a p p e lla te counsel Eric S. Bach to represent Petitioner. Mr. Bach filed a brief in accordance with Anders,1 challenging the adequacy of the Rule 11 hearing a n d questioning the Petitioner's sentence, but concluding that there were no m e rito rio u s grounds for appeal. The Petitioner also filed a supplemental brief c h a lle n g in g his conviction and sentence. On July 6, 2009, the Fourth Circuit c o n c lu d e d that there were no meritorious grounds for appeal and affirmed the P e titio n e r 's sentence. United States v. Robinson, 337 Fed. Appx. 360 (4 th

C ir. 2009). The Court stated that it had considered all of the claims raised in th e Petitioner's supplemental brief and concluded that they were without merit. Id ., at 362 n *. O n December 28, 2009, the Petitioner timely filed the instant Motion to V a c a te alleging various claims of ineffective assistance of counsel.2 The

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Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The case was reassigned to the undersigned when the sentencing judge retired.

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G o ve rn m e n t has filed response.3 S TAN D AR D OF REVIEW P u rs u a n t to Rule 4(b) of the Rules Governing Section 2255 P ro c e e d in g s , sentencing courts are directed to promptly examine motions to va c a te , along with "any attached exhibits and the record of prior proceedings . . . " in order to determine whether a petitioner is entitled to any relief. If the m o tio n is not dismissed after that initial review, the Court must direct the g o ve rn m e n t to respond. Id. The Court must then review the Government's a n s we r and any materials submitted by the parties and determine whether an e vid e n tia ry hearing is warranted pursuant to Rule 8(a). Following such

re vie w, if it is clear to the Court that a petitioner is entitled to no relief, a h e a r in g is not required. Raines v. United States, 423 F.2d 526, 529 (4 th Cir. 1 9 7 0 ). T o establish a claim of ineffective assistance of counsel, a petitioner m u s t show that counsel's performance fell below an objective standard of re a s o n a b le n e s s , and that he was prejudiced by such constitutionally deficient re p re s e n ta tio n . Strickland v. Washington, 466 U.S. 687-91, 104 S.Ct. 2052,

The record incorrectly states that the Government moved for summary judgment. [Doc. 9]. In fact, the Government filed a response to the Petitioner's motion seeking denial thereof. [Doc. 8].

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8 0 L.Ed.2d 674 (1984). In measuring counsel's performance, there is a strong p re s u m p tio n that counsel's conduct was within the wide range of reasonable p ro fe s s io n a l assistance. Id. at 689. T o demonstrate prejudice, a petitioner must show a probability that the a lle g e d errors worked to his "actual and substantial disadvantage, infecting his tria l with error of constitutional dimensions." Murray v. Carrier, 477 U.S. 478, 4 9 4 , 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986), quoting United States v. Frady, 4 5 6 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Under these c irc u m s ta n c e s , a petitioner "bears the burden of proving Strickland prejudice." F ie ld s v. Attorney General of the State of Md.,, 956 F.2d 1290, 1297 (4 th Cir. 1 9 9 2 ), certiorari denied 506 U.S. 885, 113 S.Ct. 243, 121 L.Ed.2d 176 (1992) (c ita tio n s omitted). Therefore, if a petitioner fails to meet this burden, a "re vie win g court need not consider the performance prong." Id. at 1297, citing S tric k la n d , 466 U.S. at 697. Moreover, in considering the prejudice prong of the analysis, the Court m u s t not grant relief solely because a petitioner can show that, but for c o u n s e l's performance, the outcome of the proceeding would have been d iffe re n t. Sexton v. French, 163 F.3d 874, 882 (4 th Cir. 1998), certiorari d e n ie d 528 U.S. 855, 120 S.Ct. 139, 145 L.Ed.2d 118 (1999). Rather, the

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C o u rt "can only grant relief under . . . Strickland if the `result of the proceeding wa s fundamentally unfair or unreliable.'" Id., quoting Lockhart v. Fretwell, 506 U .S . 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). A presumption exists that counsel is competent . A petitioner seeking p o s t-c o n vic tio n relief bears a heavy burden to overcome this presumption, a n d the presumption is not overcome by conclusory allegations. Carpenter v. United States, 720 F.2d 546, 548 (8 th Cir. 1983). Indeed, a petitioner who a lle g e s ineffective assistance of counsel following the entry of a guilty plea h a s an even higher burden to meet. Hill v. Lockhart, 474 U.S. 52, 59, 106 S .C t. 366, 88 L.Ed.2d 203 (1985). In the plea context, a petitioner must show th a t his counsel's performance was deficient and "there is a reasonable p ro b a b ility that, but for counsel's errors, he would not have pleaded guilty and wo u ld have insisted on going to trial." Fields, 956 F.2d at 1297. Because s o m e of the Petitioner's claims here challenge issues at sentencing, in order to demonstrate an entitlement to relief, he must, at a minimum, allege facts wh ic h establish that his "sentence would have been more lenient" absent c o u n s e l's errors. Royal v. Taylor, 188 F.3d 239, 248-49 (4 th Cir. 1999),

c e rtio ra ri denied 528 U.S. 1000, 120 S.Ct. 465, 145 L.Ed.2d 379 (1999).

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D I S C U S S IO N T h e Petitioner first alleges that his counsel was ineffective for failing to d e te rm in e that he was not a career offender. A defendant is a career offender u n d e r U.S.S.G. § 4B1.1(a)(3) if "the defendant has at least two prior felony c o n v ic tio n s of either a crime of violence or a controlled substance offense." According to the PSR, the Petitioner was convicted of felony possession of a c o n tro lle d dangerous substance and felony possession of cocaine with intent to distribute on November 30, 1990 and felony possession of cocaine with in te n t to distribute within 1000 feet of a school and felony possession of a c o n tro lle d dangerous substance on December 6, 1990. [Criminal Case No. 1 :0 7 c r3 2 , Doc. 152, at § 28]. O n direct appeal, the Fourth Circuit specifically concluded that "the d is tric t court properly considered the 1990 convictions in determining that R o b in s o n was a career offender[.]" United States v. Robinson, 337 Fed. A p p x. at 361. The law of the case doctrine "forecloses relitigation of issues e xp re s s ly or impliedly decided by the appellate court." United States v. Bell, 5 F.3d 64, 66 (4th Cir. 1993). Issues previously decided on direct appeal c a n n o t be recast in the form of a § 2255 motion. Boeckenhaupt v. United S ta te s , 537 F.2d 1182, 1183 (4th Cir. 1976), certiorari denied 429 U.S. 863,

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9 7 S.Ct. 169, 50 L.Ed.2d 142 (1976) ("[O]nce a matter has been decided a d ve rs e ly to a defendant on direct appeal it cannot be relitigated in a collateral a tta c k under Section 2255."). Accordingly, since the Petitioner has not

d ire c te d the Court's attention to any intervening change in the law which wo u ld authorize him to re-litigate this claim in this proceeding, this claim is p ro c e d u ra lly barred. T h e Petitioner's counsel cannot be found ineffective for failing to c h a lle n g e the convictions supporting his career offender status as the Fourth C ir c u it concluded that this Court properly considered the convictions in d e te r m in in g that the Petitioner was a career offender. N e xt, the Petitioner contends that his counsel was ineffective for failing to consult with him about his appeal. Mr. Beam, the Petitioner's attorney, a ve rs that although he was not retained for appellate matters, he spoke with th e Petitioner, at length, about his right to appeal his sentence and ensured th a t he exercised those rights. In fact, counsel made sure the Petitioner m a ile d his Notice of Appeal to the Court, even before Judgment was entered in the case. Mr. Beam further states that he contacted the Fourth Circuit r e g a r d in g appointment of counsel for the Petitioner and forwarded the a p p ro p ria te paperwork to Petitioner. [Doc. 8-2, at ¶¶ 9-11]. The Petitioner

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d o e s not refute his counsel's affidavit. Therefore, he has not established that h is counsel was deficient. The Petitioner also cannot establish any prejudice in connection with his c la im that counsel failed to consult with him regarding an appeal. The record e s ta b lis h e s that the Petitioner filed a timely Notice of Appeal and that the F o u rth Circuit appointed counsel to represent him on appeal. Appellate

c o u n s e l filed an Anders brief on the Petitioner's behalf and the Court allowed P e titio n e r to file a pro se supplemental brief. The Court considered and re je c te d Petitioner's pro se supplemental claims in it written decision. United S ta te s v. Robinson, 337 Fed. Appx. at 361. The Petitioner has not

e s ta b lis h e d either prong of the Strickland test and his claim therefore fails. N e xt, the Petitioner argues that his counsel was ineffective for failing to re q u e s t a downward departure based on overrepresentation of his criminal h is to ry. Pursuant to U.S.S.G. § 4A1.3(b) a downward departure should be g ra n te d when "reliable information indicates that the defendants's criminal h is to ry category substantially over-represents the seriousness of the d e fe n d a n t's criminal history or the likelihood that the defendant will commit o th e r crimes." An over-representativeness departure is almost never

a p p ro p ria te where the defendant's criminal history reflects recidivism in

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c o n tro lle d substance offenses. United States v. Stockton, 349 F.3d 755, 7647 6 5 (4 th Cir. 2003), certiorari denied 541 U.S. 953, 124 S.Ct. 1695, 158 L .E d .2 d 385 (2004); see also United States v. Atkins, 937F.2d 947, 952 (4 th C ir. 1991) (noting that Congress considered controlled substance recidivism to be "especially dangerous."). Moreover, a downward departure is generally g ra n te d on career offender cases in the "atypical case" where career-offender s ta tu s overstates the seriousness of defendant's prior conduct. Atkins, 937 F .2 d at 952. The Petitioner's case is not an atypical case. His criminal history, as re fle c te d in the PSR, indicated that he has been involved in drug crimes since a t least 1989. [Case No. 1:07cr32, Doc. 152, at ¶ 35]. In late 1989 and early 1 9 9 0 , Petitioner committed several serious drug offenses for which he re c e ive d a serious sentence. Petitioner also received two minor convictions fo r drug offenses in 1993 and 1998, indicating that his involvement with drugs d id not stop after his 1990 felonies. [Id., Doc. 152, at ¶¶ 37, 39]. The

P e titio n e r's criminal record does not support a finding that counsel was d e fic ie n t for failing to request a downward departure based on

o ve rre p re s e n ta tio n of his criminal history. Moreover, the Petitioner has not s h o w n that, based on the Petitioner's criminal history, the sentencing Court

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wo u ld have granted such a request.4 The Petitioner has not established either p ro n g of the Strickland test with respect to his claim and therefore, his claim m u s t fail. T h e Petitioner next argues that his counsel was ineffective for failing to a rg u e that his prior sentences ­ the two drug felonies ­ should have been c o u n te d as a single sentence under Amendment 709. Specifically, the

P e titio n e r argues that the two felony drug sentences he received in 1990 s h o u ld be counted as a single offense because they were allowed to be s e rve d concurrently. The undersigned recently denied the Petitioner's "Motion fo r Resentencing under Title 18 U.S.C. § 3582(c)(2) and Title 18 U.S.S.G. § 1 B 1 .1 1 (b )(2 ) Pursuant to Amendment 709" filed in his criminal case in which h e made the same argument. [Criminal Case No. 1:07cr32, Doc. 200]. As e xp la in e d in that Order, the Petitioner was sentenced under the 2007 version o f the Sentencing Guidelines, which incorporated the provisions of A m e n d m e n t 709 on which Petitioner relies. Under the 2007 version of the G u id e lin e s , prior sentences are to be counted separately if the sentences

The Court notes that such departures are specifically limited to one criminal history category. U.S.S.G, § 4A1.3(b)(3)(A). The Petitioner's criminal history category could have only been reduced from a level VI to V and his offense level would have remained at level 34. The corresponding guidelines range of imprisonment is 235-296 months. The Petitioner's 276 month sentence falls squarely within that range.

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we re imposed for offenses that were separated by an intervening arrest. U .S .S .G . § 4A1.2(a)(2) (2007). The offenses for which these two sentences w e r e imposed were separated by an intervening arrest and were therefore p r o p e rly counted as separate sentences for the purpose of calculating the P e titio n e r's criminal history. Since the Petitioner has not established either p ro n g of the Strickland test with respect to this claim, it must fail. The Petitioner next argues that he was coerced into pleading guilty wh e n his attorney incorrectly advised him that he could receive a life sentence if he waited to plead or lost at trial. The Petitioner also claims that he was c o e rc e d into pleading guilty when his counsel incorrectly informed him that he w o u ld only be held accountable for cocaine powder. F irs t, as a factual matter, Petitioner was potentially subject to a m a n d a to r y statutory sentence of life in prison under 21 U.S.C.

§ 8 4 1 (b )(1 )(A )(iii) because his drug offense involved 50grams or more of c o c a in e base and he had two prior drug felonies that qualified under § 851.5 T h e re fo re , counsel's advice regarding the statutory sentencing possibilities wa s accurate. N e xt, the Petitioner claims that his counsel incorrectly advised him, by
In exchange for Petitioner's guilty plea, the government agreed it would not file a section 851 notice of Robinson's second qualifying felony conviction. [Id., Doc. 178].
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le tte r, that he would only be held accountable for cocaine powder.

The

C o u rt's review of the letter and the entire record in this case makes clear that c o u n s e l's reference to powder in his letter to Petitioner was simply a mistake. In d e e d , the letter referenced by the Petitioner, dated June 12, 2007, states in p a rt, "I understand that the plea deadline in your case is Friday June 15, 2007. A s we have discussed on Saturday, May 26, 2007, the United States has o ffe re d you a plea to count one of the Bill of Indictment, being conspiracy r e la te d to 150 to 500 grams of cocaine powder." [Doc. 1, at 26]. The record re ve a ls that the Petitioner entered a guilty plea, pursuant to a plea agreement, o n July 9, 2007. The Petitioner was clearly advised, on the record, that his p le a was to Count One of the Bill of Indictment which charged conspiracy to p o s s e s s with intent to distribute 50 grams or more of cocaine base. Counsel a d vis e d that in exchange for the Petitioner's guilty plea, the Government a g re e d to file one § 851 notice instead of two taking his statutory sentence fro m mandatory life to a 20 years to life. [Criminal Case No. 1:07cr32, Doc. 1 7 8 ]. The Court then conducted a thorough plea colloquy and reviewed the e le m e n ts of Count One specifically and clearly referencing cocaine base as th e drug to which Petitioner was pleading. [Id.]. The Petitioner acknowledged th a t he understood the elements of Count One as explained by the Court.

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[Id .]. The Fourth Circuit has concluded that the Petitioner entered his plea k n o win g ly and voluntarily and that the plea was supported by an individual fa c tu a l basis. United States v. Robinson, 337 Fed. Appx. at 361. Therefore, even if this Court were to assume counsel was deficient for re fe re n c in g cocaine powder6 in his letter to the Petitioner, the Petitioner c a n n o t establish prejudice as the Court accurately advised the Petitioner that h is plea was to Count One of the Bill of Indictment which was for conspiracy to possess with intent to distribute cocaine base. Indeed, the Fourth Circuit h a s explained that "if the information given by the court at the Rule 11 hearing c o rr e c ts or clarifies the earlier erroneous information given by the defendant's a tto rn e y and the defendant admits to understanding the court's advice, the c r im in a l justice system must be able to rely on the subsequent dialogue b e twe e n the court and defendant." United States v. Lambey, 974 F.2d 1389, 1 3 9 5 (4 th Cir. 1992), certiorari denied 513 U.S. 1060, 115 S.Ct. 672, 130 L .E d .2 d 605 (1994). The Petitioner was properly advised of the elements of th e offense to which he was pleading guilty by the Court during his Rule 11

The Court notes that the Bill of Indictment and the Plea Agreement also reference cocaine base. It appears that counsel's reference to cocaine powder in his letter to Petitioner was a mistake. However, a review of the record satisfies the undersigned that Petitioner was correctly advised during his Plea and Rule 11 hearing of the essential elements of Count One of the Bill of Indictment including that drug to which he was pleading was cocaine base.

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h e a rin g and he stated that he understood those elements. He also stated that n o one coerced him into accepting the plea and that he was entirely satisfied with the services of his attorney. [Criminal Case No. 1:07cr32, Doc. 178, at 2 7 -2 8 ]. The Petitioner has not established either prong of the Strickland test with respect to this claim. Therefore, his claim that counsel coerced him into p le a d in g guilty must fail. N e xt, the Petitioner argues that his counsel was ineffective for failing to a d vis e him of his right to a preliminary hearing. The Petitioner was indicted b y a grand jury, therefore, a preliminary hearing was not required. Fed.R. C rim .P . 5.1(a)(2); 18 U.S.C. § 3060(e). The Petitioner has not established e ith e r prong of the Strickland test and therefore this claim must fail. F in a lly, the Petitioner contends that his counsel was ineffective for failing to protect his rights under the Speedy Trial Act of the Sixth Amendment. The P e titio n e r argues that counsel improperly allowed the Court to grant sua s p o n te a continuance of his trial on April 23, 2007. A review of the record re ve a ls that the Petitioner was indicted on April 3, 2007. Counsel was

a p p o in te d on April 19, 2007 and the Petitioner was arraigned on April 20, 2 0 0 7 . Three days after arraignment, the Court sua sponte continued the trial fro m the May 2007 term. [Criminal Case No. 1:07cr32, Doc. 36].

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P e titio n e r raised this claim on direct appeal to the Fourth Circuit Court o f Appeals in his supplemental brief. The Fourth Circuit considered the claim a n d concluded that it had no merit.7 The law of the case doctrine "forecloses re litig a tio n of issues expressly or impliedly decided by the appellate court." B e ll, 5 F.3d at 66. Issues previously decided on direct appeal cannot be re c a s t in the form of a § 2255 motion. Boeckenhaupt, 537 F.2d at 1183

("[O ]n c e a matter has been decided adversely to a defendant on direct appeal it cannot be relitigated in a collateral attack under Section 2255."). A c c o rd in g ly, since the Petitioner has not directed the Court's attention to any in te rv e n in g change in the law which would authorize him to re-litigate this c la im in this proceeding, this claim is procedurally barred. T h e Court has considered the pleadings and documents submitted by th e Petitioner and the entire record of this matter and finds that it is clear that P e titio n e r is not entitled to relief on any of his claims. The Court further finds th a t the Petitioner has not made a substantial showing of a denial of a c o n s titu tio n a l right. 28 U.S.C. § 2253(c)(2); Miller-El v. Cockrell, 537 U.S. 3 2 2 , 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (in order to satisfy §

The Fourth Circuit reviewed the claims in Petitioner's pro se supplemental brief and concluded that they are without merit. United States v. Robinson, 337 Fed. Appx. at 361.

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2 2 5 3 (c ), a petitioner must demonstrate that reasonable jurists would find the d is tric t court's assessment of the constitutional claims debatable or wrong) ( c ita tio n s omitted). As a result, the Court declines to issue a certificate of a p p e a la b ility. Rule 11(a), Rules Governing Section 2255 Proceedings for the U n ite d States District Courts. ORDER IT IS, THEREFORE, ORDERED that the Petitioner's Motion under 28 U .S .C . §2255 to Vacate, Set Aside, or Correct Sentence by a Person in F e d e ra l Custody [Doc. 1] is hereby DENIED and this action is hereby D IS M IS S E D .

Signed: December 28, 2010

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