Coleman v. USA

Filing 10

OPINION AND ORDER by Judge Ronald A. White denying petitioner's habeas motion (Re: 1 Motion to Vacate, Set Aside or Correct Sentence (2255) ) (lal, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DEMARIO RICHARD COLEMAN,
Petitioner/Defendant.
v.

Case No. CIV-13-326-RAW
(Underlying Case No. CR-12-018)

UNITED STATES OF AMERICA,
Respondent/Plaintiff,

ORDER & OPINION
Before the court is Demario Richard Coleman’s motion pursuant to 28 U.S.C. § 2255 to
vacate, set aside or correct sentence [Docket No. 1]. On March 27, 2012, Petitioner pled guilty
to Count 1 of the Indictment, charging him with being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1) and 924(e)(1). On July 18, 2012, Petitioner was sentenced to
180 months in prison, followed by 3 years of supervised release. The Judgment was entered on
July 26, 2012. Petitioner did not file an appeal. Petitioner’s motion is timely.1
Petitioner raises three grounds for relief in his habeas motion: (1) that his due process
rights were violated because under Begay v. United States, 553 U.S. 137 (2008), his prior
felonies do not qualify him as an armed career offender; (2) that his due process rights were
violated because under Alleyne v. United States, 133 S.Ct. 2151 (2013), his prior offenses must

1

“A one-year period of limitation applies to [a] habeas petition. 28 U.S.C. § 2255. The
limitation period runs from the date on which the judgment of conviction becomes final . . . .”
United States v. Ramos, 150 Fed.Appx. 752, 753 (10th Cir. 2005) (citations omitted). In this
case, the judgment of conviction became final when the fourteen (14) day period for appeal
provided by Fed. R. App. P. 4(b)(1)(A)(i) expired on August 9, 2012. United States v. Prows,
448 F.3d 1223, 1227-28 (10th Cir. 2006). As the habeas motion was filed on July 22, 2013, less
than a year after the judgment became final, it is timely.

be charged in the Indictment in order to enhance his mandatory minimum; and (3) that he was
denied effective assistance of counsel because his attorney did not object to the Armed Career
Criminal Act (ACCA), 18 U.S.C. § 924(e), enhancement and preserve the issue for appeal. For
the reasons set forth below, the habeas motion is denied on all grounds.

FACTUAL AND PROCEDURAL BACKGROUND
Each of Petitioner’s claims relate to his sentencing enhancement under 18 U.S.C. §
924(e). Section 924(e) of Title 18 of the United States Code provides an enhanced sentence for
anyone who violates § 922(g) and “has three previous convictions . . . for a violent felony or a
serious drug offense, or both, committed on occasions different from one another . . . .” 18
U.S.C. § 924(e). Petitioner’s enhancement was based upon serious drug offenses, each in
Muskogee County, committed on: February 16, 2007, January 9, 2008, February 4, 2008, and
September 2, 2008.

DUE PROCESS CLAIMS
Petitioner’s due process claims could have been, but were not, brought on direct appeal.
“Section 2255 motions are not available to test the legality of matters which should have been
raised on direct appeal.” United States v. Cook, 997 F.2d 1312, 1320 (10th Cir. 1993).
Petitioner’s “failure to present an issue on direct appeal bars him from raising the issue in his §
2255 motion, unless he can show cause excusing his procedural default and actual prejudice
resulting from the errors of which he complains, or can show that a fundamental miscarriage of
justice will occur if his claim is not addressed.” Id.
2

Ineffective assistance of counsel is cause for procedural default. Murray v. Carrier, 477
U.S. 478, 488 (1986). Both of Petitioner’s due process claims relate to the ACCA enhancement.
Petitioner also alleges that his attorney was ineffective for failing to object to the ACCA
enhancement. “When considering a claim of ineffective assistance of appellate counsel for
failure to raise an issue, we look to the merits of the omitted issue.” Hooks v. Ward, 184 F.3d
1206, 1221 (10th Cir. 1999).

INEFFECTIVE ASSISTANCE CLAIMS
In order to prevail on his claims of ineffective assistance of counsel, Petitioner must
satisfy the two-prong test set out in Strickland v. Washington, 466 U.S. 668 (1984). Under this
test, Petitioner must show both that his counsel’s performance was deficient and that the
deficiency prejudiced his defense. Id. at 687.
He must show that his counsel’s “representation fell below an objective standard of
reasonableness.” Id. at 688. “Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining counsel’s defense
after it has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689 (emphasis added).
A reviewing court must make every effort “to evaluate the conduct from counsel’s
perspective at the time.” Id. Moreover, a convicted defendant “must overcome the presumption
that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’”
Id. (citation omitted) (emphasis added). “There are countless ways to provide effective
3

assistance in any given case. Even the best criminal defense attorneys would not defend a
particular client in the same way.” Id.
To prevail, a Petitioner must also show that the error had an effect on the judgment in his
case. “An error by counsel, even if professionally unreasonable, does not warrant setting aside
the judgment of a criminal proceeding if the error had no effect on the judgment.” Id. at 691.
Even if an error had some conceivable effect, that is not enough to set aside a judgment. Id. at
693. Instead, a defendant “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694.
While a defendant must prove both deficient performance and prejudice before he is
entitled to relief, the court need not address the elements in that order. Id. at 697. “If it is easier
to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we
expect will often be so, that course should be followed. Courts should strive to ensure that
ineffectiveness claims not become so burdensome to defense counsel that the entire criminal
justice system suffers as a result.” Id. Moreover, “the presumption that a criminal judgment is
final is at its strongest in collateral attacks on that judgment.” Id.

GROUND 1 – Begay
Begay is not applicable in this case. The Begay Court ruled that driving under the
influence of alcohol is not a “violent felony” under the ACCA. Begay, 553 U.S. at 139-48.
None of Petitioner’s predicate offenses included driving under the influence of alcohol. His
predicate offenses were serious drug offenses. Begay simply does not apply.
4

Petitioner’s counsel was not ineffective for failing to raise Begay, and Petitioner suffered
no prejudice. As there was no ineffective assistance of counsel and Petitioner has shown no
other cause excusing his default, Petitioner is barred from raising this issue after not raising it on
direct appeal. Petitioner’s motion is denied on this ground.

GROUND 2 – Alleyne
In Alleyne, the Supreme Court held that any finding of fact that aggravates the legally
prescribed range of possible punishment “constitutes an element of a separate, aggravated
offense that must be found by the jury . . . .” Alleyne, 133 S.Ct. at 2158-62. Alleyne, however,
is not applicable in this case. The Alleyne Court did not revisit the exception to this rule for the
fact of prior convictions. Id. at 1260 n. 1. Petitioner’s ACCA enhancement was based on prior
convictions, which do not have to be found by the jury.
Again, Petitioner has not shown ineffective assistance or prejudice. As he has shown no
other cause excusing his default, Petitioner is barred from raising this issue here after not raising
it on direct appeal. Petitioner’s motion is denied as to this ground as well.

GROUND 3 – Failure to Object to ACCA Enhancement
As the court ruled above, Petitioner’s arguments under Begay and Alleyne fail. Petitioner
has raised no other non-frivolous argument his counsel should have raised. Petitioner’s right to
effective assistance of counsel “does not include the right to bring a frivolous appeal and,
concomitantly, does not include the right to counsel for bringing a frivolous appeal.” Smith v.
Robbins, 528 U.S. 259, 278 (2000). The ACCA enhancement was properly applied. Petitioner
5

has not shown deficient performance by his attorney or prejudice. His motion, therefore, fails as
to this ground as well.

CONCLUSION
For the reasons stated above, Petitioner’s habeas motion is DENIED on all grounds. As
the motion and the files and records of the case conclusively show that Petitioner is entitled to no
relief, no evidentiary hearing is necessary.
It is so Ordered this 23rd day of December, 2014.

Dated this 23rd day of December, 2014.

J4h4i0

6