Bunting v. United States of America

Filing 2

ORDER Denying 1 Motion to Vacate/Set Aside/Correct Sentence (2255) filed by Stoneham Bunting. Signed by Honorable Timothy D. DeGiusti on 4/19/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA

UNITED STATES OF AMERICA,
Plaintiff,
v.
STONEHAM BUNTING,
Defendant.

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Case No. CR-14-138-D
(No. CIV-16-1287-D)

ORDER
Before the Court is Defendant Stoneham Bunting’s Motion to Vacate, Set Aside or
Correct Sentence [Doc. No. 150], filed pursuant to 28 U.S.C. § 2255.

The government

has filed a response [Doc. No. 160], accompanied by an affidavit of Defendant’s original
counsel, Jack Dempsey Pointer [Doc. No. 160-1], and a transcript of the plea hearing held
on January 15, 2015 [Doc. No. 160-2]. For reasons that follow, the Court finds that no
hearing is needed and the Motion must be denied. 1
Factual and Procedural Background
A law enforcement investigation of a drug trafficking organization revealed that
Defendant was a source of cocaine for a target of the investigation, Terry Wilkerson.
During surveillance, agents observed Mr. Wilkerson enter Defendant’s jewelry store to
purchase cocaine for sale to an undercover officer. Agents later executed search warrants
at Defendant’s residence and jewelry store, and seized evidence that included a .38 caliber
1

No evidentiary hearing is needed where the existing record conclusively shows the
defendant is not entitled to relief. See United States v. Lopez, 100 F.3d 113, 121 (10th Cir. 1996);
28 U.S.C. § 2255(b).

revolver and a shotgun.

Defendant was interviewed after the search and admitted his

involvement in selling cocaine to Mr. Wilkerson.
complaint.

He was arrested on a criminal

On May 6, 2014, a federal grand jury charged Defendant, Mr. Wilkerson, and

two others with conspiring to possess with intent to distribute, and to distribute, five
kilograms or more of cocaine in violation of 21 U.S.C. § 846.
No. 29].

See Indictment [Doc.

The penalty for this offense is provided by 21 U.S.C. § 841(b)(1)(A), which

mandates a minimum prison term of 10 years and authorizes a maximum sentence of life
imprisonment. 2
An experienced criminal defense attorney, Mr. Pointer, was appointed to represent
Defendant at his initial appearance.

Negotiations between the parties resulted in a plea

agreement and the filing of the Superseding Information [Doc. No. 92] on November 25,
2014, charging Defendant with conspiracy to possess with intent to distribute and to
distribute an unspecified quantity of cocaine.

The maximum penalty for this offense is a

20-year term of imprisonment; there is no mandatory minimum prison sentence.
U.S.C. § 841(b)(1)(C).

In the plea agreement, the parties stipulated that the amount of

cocaine involved in the offense was 3.5 kilograms.
¶ 7.

See 21

See Plea Agreement [Doc. No. 93],

As part of the agreement, Defendant waived his right to appeal or collaterally

challenge his conviction and sentence except under limited circumstances; one exception
is a collateral attack based on “claims of ineffective assistance of counsel that relate

2

The government states that Defendant had a prior drug trafficking conviction that would
have permitted the prosecution to seek an enhanced mandatory minimum 20-year sentence.
However, no notice pursuant to 18 U.S.C. § 851 was filed.
2

specifically to the validity of the defendant’s guilty plea or the [appeal and collateral
challenge] waivers in this paragraph.”

See id. ¶ 8(c).

The government agreed to dismiss

the Indictment at sentencing, and agreed that Defendant should receive the maximum
downward adjustment for acceptance of responsibility in computing an advisory guideline
range of imprisonment under the Sentencing Guidelines.

See id. ¶ 7.

Defendant entered a plea of guilty to the Superseding Information on January 15,
2015.

Shortly after the plea hearing, Defendant communicated with the Court in writing.

Due to the nature of Defendant’s concerns, the Court elected to file the letter under seal
and to treat it as a pro se motion for appointment of substitute counsel. 3

The Court

appointed Joseph G. Shannonhouse, IV as Defendant’s attorney on February 13, 2015.
Mr. Shannonhouse represented Defendant in all subsequent proceedings, primarily related
to the presentence investigation report and sentencing.
The final presentence report included the following findings for purposes of the
Sentencing Guidelines: Defendant was accountable for 4.536 kilograms of cocaine,
resulting in a base offense level of 28, see § 2D1.1(c)(6); 4 a two-level enhancement
applied for possessing a firearm in connection with the drug offense, see § 2D1.1(b)(1); a
two-level enhancement applied for maintaining a premises for the purpose of distributing
a controlled substance, see § 2D1.1(b)(12); and a three-level decrease applied for

3

The concerns expressed in Defendant’s letter are unrelated to the issues raised in his
current Motion.
4

The base offense level was the same using either the quantity of cocaine found by the
probation officer or the amount stipulated by the parties.
3

acceptance of responsibility, see § 3E1.1. The total offense level of 29 and a criminal
history category of II yielded a guideline range of imprisonment of 97 to 121 months.
Defendant was sentenced on March 30, 2016, to a 36-month term of imprisonment.

He

did not appeal, but filed the instant § 2255 Motion on November 9, 2016.
Defendant’s Claims
It is unclear from Defendant’s Motion exactly what claims he intends to assert.

In

the introduction and by similar language in a prayer for relief, Defendant asks the Court to
“vacat[e] the enhancement of two points for a Felony [sic] in possession of a Weapon” and
“order the Bureau of Prisons, RDAP program to grant him a reduction in sentence upon his
completion of the requirements of the program.”
(hereafter “Motion”) at 1, 7. 5

See Def.’s Mot. Vacate [Doc. No. 150]

As a ground for relief, Defendant claims the dangerous

weapon enhancement of § 2D1.1(b)(1) is “illegal” under Johnson v. United States, 135 S.
Ct. 2551 (2015).

See Motion at 2, 4. 6

Defendant erroneously invokes Johnson, which

invalidated a provision of the Armed Career Criminal Act, 18 U.S.C. § 924(e)(1), and has
no bearing on his case. Defendant also seems to claim the weapon enhancement was
5

The RDAP, or Residential Drug Abuse Program, is a substance abuse treatment program
for federal inmates provided by the Bureau of Prisons. Factual findings regarding an inmate’s
offense may later affect his eligibility for the program and for a possible sentence reduction if he
successfully completes the program. See 18 U.S.C. § 3621(e)(2)(B) (authorizing Bureau of
Prisons to reduce a nonviolent offender’s time in custody after completing treatment); 28 C.F.R. §
550.55 (providing conditions of eligibility and ineligibility). However, any sentence reduction is
a matter within the discretion of the Bureau of Prisons. See Lopez v. Davis, 531 U.S. 230, 24041 (2001); Licon v. Ledezma, 638 F.3d 1303, 1305 (10th Cir. 2011).
6

Defendant mistakenly cites the other enhancement provision applied to him,
§ 2D1.1(b)(12), but presents argument regarding the dangerous weapon enhancement and the
firearms seized from his residence and shop. See Motion at 2-5.
4

affected by a subsequent decision of the Tenth Circuit in United States v. Little, 829 F.3d
1177 (10th Cir. 2016).

See Motion at 3. However, Little decided an element of proof to

establish constructive possession of a firearm for an offense under 18 U.S.C. § 922(g)(1),
and is similarly inapposite. In essence, Defendant simply contends the government failed
to prove the applicability of the firearm enhancement of the Sentencing Guidelines to his
drug offense.
Defendant made no objection to this enhancement at the time of sentencing, did not
appeal his sentence, and expressly waived any collateral challenge to his sentence under
the terms of his plea agreement. The government invokes the waiver as a bar to this claim.
See Pl.’s Resp. Br. [Doc. No. 160] at 7.

Defendant presents no basis to invalidate the

waiver, other than a possible claim of ineffective assistance of counsel with respect to his
guilty plea, discussed infra. The Tenth Circuit has established that a collateral-challenge
waiver is generally enforceable, and none of the other factors relevant to enforceability is
implicated here.

See United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en

banc) (appellate waiver); United States v. Viera, 674 F.3d 1214, 1217–18 (10th Cir. 2012)
(collateral-rights waiver).

Defendant’s plea petition, the plea colloquy, and his sworn

testimony at the plea hearing establish that the waiver of collateral rights was knowing and
voluntary.

See 1/15/15 Hr’g Tr. 8:19-9:15, 11:23-13:21, 15:3-16:3.

Defendant’s guilty plea was knowing and voluntary before accepting it.

The Court found
See id. 16:7-13.

Defendant also asserts as a ground for relief that he received ineffective assistance
of counsel.

See Motion at 2, 5-7.

Defendant primarily complains about the lack of a
5

sentencing objection to the firearm enhancement of § 2D1.1(b)(1).

Id. at 6-7. 7

Liberally

construing the Motion due to his pro se status, however, Defendant arguably claims that
Mr. Pointer failed to advise him during plea negotiations that the weapon enhancement
could increase his sentencing guideline range and that it could prevent him from later
receiving a sentence reduction from the Bureau of Prisons if he completed the RDAP
program.

See supra note 5. Defendant states:

Defense counsel left the Petitioner with a false conclusion that because of the
court[’]s recommendation to take the RDAP program he would in fact
receive the year reduction in his sentence. This ineffective assistance
caused the petitioner to accept the plea deal offered when in fact [he] has not
received the benefits of the deal.
See Motion at 7. A claim of ineffective assistance of counsel that relates specifically to
the validity of Defendant’s guilty plea is not waived by the parties’ plea agreement. 8
Standard of Decision
To succeed on an ineffective assistance of counsel claim in the context of a guilty
plea, a defendant must show 1) “‘that counsel’s representation fell below an objective
standard of reasonableness;’” and 2) that there is “a ‘reasonable probability’ that the
defendant ‘would not have pleaded guilty and would have insisted on going to trial’ but for
counsel’s errors.”

See Heard v. Addison, 728 F.3d 1170, 1175-76 (10th Cir. 2013)

7

For the reasons explained with regard to the weapon enhancement, any claim of
ineffective assistance at sentencing is waived.
8

Further, as a matter of law, “a plea agreement waiver of postconviction rights does not
waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims
challenging the validity of the plea or the waiver.” United States v. Cockerham, 237 F.3d 1179,
1187 (10th Cir. 2001).
6

(quoting Strickland v. Washington, 466 U.S. 668, 688 (1984), and Hill v. Lockhart, 474
U.S. 52, 57, 58-59 (1985)).

In assessing the performance prong of an ineffective

assistance claim, “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”

Strickland, 466 U.S. at 689.

To prove deficient performance, a defendant must demonstrate that his counsel’s
performance was “‘completely unreasonable, not merely wrong.’”

Byrd v. Workman, 645

F.3d 1159, 1167 (10th Cir. 2011) (quoting Hooks v. Workman, 606 F.3d 715, 723 (10th
Cir. 2010)).
Discussion
First, with regard to counsel’s performance, Defendant does not allege that
Mr. Pointer made any promise or misrepresentation regarding Defendant’s sentence but
only that counsel did not provide information Defendant later found to be relevant.

It is

well settled that even “[a] miscalculation or erroneous sentence estimation by defense
counsel is not a constitutionally deficient performance arising to the level of ineffective
assistance of counsel.”

United States v. Parker, 720 F.3d 781, 787 n. 9 (10th Cir. 2013)

(quoting United States v. Gordon, 4 F.3d 1567, 1570 (10th Cir. 1993)).

Defendant’s

current allegation that his plea decision was influenced by a possible sentence reduction
after completing the RDAP program is inconsistent with representations he made to the
Court when he entered his guilty plea. 9 Testifying under oath, Defendant assured the Court

9

Defendant’s complaint that the gun enhancement increased his advisory guideline range
had no bearing on his sentence; the Court varied far below the applicable guideline range.
7

that his plea of guilty was made voluntarily and completely of his own free choice, that the
plea agreement contained his complete understanding and agreement with the government,
and that no promises other than those in the plea agreement had been made to cause him to
plead guilty.

See 1/15/15 Hr’g Tr. 10:13-16, 11:5-16, 13:21.

Second, and fatal to his claim, the Court finds no allegations that would satisfy
Defendant’s burden to show a reasonable probability that but for Mr. Pointer’s allegedly
deficient advice, Defendant would not have pleaded guilty but would have insisted on
going to trial. Nothing suggests counsel’s alleged omission of information about the gun
enhancement affected Defendant’s decision to plead guilty.

Further, “proof of prejudice

requires a petitioner to show that ‘a decision to reject the plea bargain would have been
rational under the circumstances.’”
Kentucky, 559 U.S. 356, 372 (2010)).

See Heard, 728 F.3d at 1184 (quoting Padilla v.
Through the plea agreement, Defendant obtained

a substantial benefit from a reduced charge in the Superseding Information, avoiding a
mandatory minimum 10-year prison sentence.

The strength of the prosecution’s case may

also be considered. See Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001).
this case, the evidence against Defendant, who confessed, was overwhelming.

In

The Court

finds that Defendant has not alleged any prejudice and, therefore, cannot prevail on his
ineffective assistance claim.
Conclusion
For these reasons, Defendant is not entitled to relief based on a claim of ineffective
assistance of counsel regarding the validity of his guilty plea and the plea agreement, and
8

any claim for relief based on the two-point weapon enhancement of the Sentencing
Guidelines is barred by Defendant’s waiver of a collateral challenge to his sentence.
IT IS THEREFORE ORDERED that Defendant Stoneham Bunting’s Motion to
Vacate, Set Aside or Correct Sentence Under 28 U.S.C. § 2255 [Doc. No. 150] is DENIED.
A separate judgment shall be entered.
IT IS FURTHER ORDERED that pursuant to Rule 11(a) of the Rules Governing
Section 2255 Proceedings, the Court must issue or deny a certificate of appealability
(“COA”) when it enters a final order adverse to a movant.
“a substantial showing of the denial of a constitutional right.”

A COA may issue only upon
See 28 U.S.C. §2253(c)(2).

“A petitioner satisfies this standard by demonstrating that jurists of reason could disagree
with the district court’s resolution of his constitutional claims or that jurists could conclude
the issues presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Where relief is denied on procedural grounds without reaching the merits of the prisoner’s
claims, “a COA should issue when the prisoner shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was correct
in its procedural ruling.”

Slack, 529 U.S. at 484.

this standard is not met in this case.

Upon consideration, the Court finds

Therefore, a COA will be denied, and the denial shall

be included in the judgment.

9

IT IS SO ORDERED this 19th day of April, 2017.

10