Campbell v. United States of America

Filing 27

ORDER denying Petitioner's 14 Motion to Vacate/Set Aside/Correct Sentence (2255). Signed by U.S. District Judge John C Coughenour. (TH)

THE HONORABLE JOHN C. COUGHENOUR

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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KEVIN CAMPBELL,

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Petitioner,

ORDER

v.

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CASE NO. C18-0274-JCC

UNITED STATES OF AMERICA,

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Respondent.

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This matter comes before the Court on Petitioner Kevin Campbell’s motion to vacate, set

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aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Dkt. No. 14). Having thoroughly

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considered the parties’ briefing and the relevant record, the Court hereby DENIES the motion for

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the reasons explained herein.

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I.

BACKGROUND

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In February 2017, Petitioner pled guilty to one count of distribution of controlled

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substances. United States v. Campbell, CR17-0025-JCC, Dkt. No. 9 (W.D. Wash. 2017). As part

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of his plea agreement, Petitioner admitted that he sold drugs through the website Silk Road to

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dozens of clients, including J.M. Id. at 5. Petitioner admitted this included the sale of China

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White heroin, which he sold to J.M. in 2013. Id. Petitioner also admitted that J.M. presumably

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ingested the drugs that Petitioner sold him, and subsequently died of a drug overdose. Id. at 5–6.

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As part of his plea agreement, Petitioner agreed to waive all rights to directly appeal the sentence
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imposed by the Court, including any fine, restitution order, probation or supervised release

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condition, or forfeiture order. Id. at 11–12. The waiver includes any right to bring a collateral

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attack against the conviction and sentence that he received, except as it may relate to ineffective

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assistance of counsel. Id.

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In August 2017, the Court sentenced Petitioner to 72 months in prison. Campbell, CR17-

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0025-JCC, Dkt. No. 36. Over the objection of Petitioner’s former counsel, Jennifer Wellman, the

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Court found that, for the purpose of sentencing considerations, the drugs Petitioner sold J.M.

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caused his death. See Campbell, CR17-0025-JCC, Dkt. No. 37; (See also Dkt. No. 16-3 at 26.)

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Following his sentencing, Petitioner filed a notice of appeal in the Ninth Circuit. Campbell,

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CR17-0025-JCC, Dkt. No. 41. The grounds for Petitioner’s appeal are not known to the Court.

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Petitioner was subsequently granted a substitution of counsel by the Ninth Circuit, and attorney

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Eric Levin took over Petitioner’s case. Campbell, CR17-0025-JCC, Dkt. No. 45. Subsequently,

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Petitioner voluntarily withdrew his appeal, and the same day filed a motion to withdraw his

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guilty plea in this Court, which was denied. Campbell, CR17-0025-JCC, Dkt. Nos. 50, 54.

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Petitioner now brings what the Court considers to be his first petition for habeas corpus relief.

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(Dkt. No. 14.)

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II.

DISCUSSION

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A.

Legal Standard

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To state a cognizable claim under 28 U.S.C. § 2255, a petitioner must assert that he or

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she is in custody in violation of the Constitution or laws of the United States, that the district

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court lacked jurisdiction, that the sentence exceeded the maximum allowed by law, or that the

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sentence is otherwise subject to collateral attack. 28 U.S.C. § 2255(a). “Unless the motion and

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the files and records of the case conclusively show that the prisoner is entitled to no relief, the

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court shall grant a prompt hearing thereon.” 28 U.S.C. § 2255(b). A claim must be “so palpably

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incredible or patently frivolous as to warrant summary dismissal” in order to justify the refusal of

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an evidentiary hearing. United States v. Leonti, 326 F.3d 1111, 1116 (9th Cir. 2003) (quoting
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United States v. Schaflander, 743 F.2d 714, 717 (9th Cir. 1984)). Plaintiff alleges three separate

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grounds for relief: (1) Petitioner’s plea was not intelligently entered into because he was coerced

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into the plea by Ms. Wellman’s failure to investigate the cause of J.M.’s death; (2) Mr. Levin

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rendered ineffective assistance of counsel by withdrawing Petitioner’s appeal to the Ninth

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Circuit; and (3) the conditions of his supervised release are unconstitutionally vague and

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overbroad.

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B.

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Petitioner asserts that he did not enter into his plea intelligently because he was coerced

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into entering into the plea. (Dkt. No. 14 at 4.) Petitioner alleges that this coercion was based on

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Ms. Wellman’s inadequate assistance of counsel because of her failure to conduct an adequate

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investigation into J.M.’s cause of death. (Id.) A plea is not entered into intelligently “if the

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defendant is without the information necessary to assess intelligently the advantages and

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disadvantages of a trial as compared with those attending a plea of guilty.” United States v.

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Hernandez, 203 F.3d 614, 619 (9th Cir. 2000).

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Knowing and Intelligent Plea

However, Petitioner was given substantial information regarding J.M.’s death when

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deciding whether to enter into a plea agreement. Ms. Wellman hired an expert pathologist to

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independently review the circumstances of J.M.’s death. Campbell, CR17-0025-JCC, Dkt. No.

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29 at 19–24. This expert explicitly mentioned the chain of custody concern that Petitioner

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mentions in his petition. (Id. at 20–21.) Petitioner also had access to J.M.’s autopsy records,

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toxicology reports, and the findings of other experts who conducted an examination into J.M.’s

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death. See Campbell, CR17-0025-JCC, Dkt. Nos. 28, 29. Petitioner had the necessary

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information to assess the strengths and weaknesses of the Government’s case for proving that the

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drugs Petitioner sold J.M. caused J.M.’s death. With this information, Petitioner ultimately

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decided to enter into a plea agreement to avoid being charged with the sentencing enhancement

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that his sale of drugs to J.M. caused J.M.’s death. Campbell, CR17-0025-JCC, Dkt. No. 9. When

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asked at his plea hearing whether he had entered into his plea agreement intelligently, Petitioner
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answered that he did. (Dkt. No. 16-2 at 19.) When asked at his plea hearing whether he had the

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information necessary to intelligently enter into his plea, Petitioner answered that he did. (Id. at

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18–19.) And when asked if he had an additional questions for Ms. Wellman or any need for

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additional information, he answered that he did not. (Id.) For these reasons, the Court finds that

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Petitioner’s plea was entered intelligently, and DENIES Petitioner’s motion for relief on this

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ground.

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C.

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Ineffective Assistance of Counsel
1. Ineffective assistance of trial counsel

Though Petitioner characterizes his first ground for relief as unintelligently entering into

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his plea, the Court also analyzes Petitioner’s claim as one for ineffective assistance of counsel.

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(See Dkt. No. 14.) Petitioner claims that Ms. Wellman provided ineffective assistance of counsel

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by failing to fully investigate the cause of J.M.’s death. (Id. at 4.) In order to show ineffective

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assistance of counsel, Petitioner must prove that: (1) counsel’s performance was professionally

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unreasonable, and (2) any “deficienc[y] in counsel’s performance [was] prejudicial to the

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defense.” Strickland v. Washington, 466 U.S. 668, 691–92 (1984).

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Petitioner fails to meet both prongs of the Strickland test. Petitioner alleges that Ms.

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Wellman conducted an inadequate investigation in order to show that Petitioner was not

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responsible for the death of J.M. (Dkt. No. 14 at 4.) But the plea agreement that Ms. Wellman

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negotiated on behalf of Petitioner includes the express provision that the Government would

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forego charging Petitioner for the death of J.M. Campbell, CR17-0025-JCC, Dkt. No. 9 at 3–4. A

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conviction for distribution of controlled substance with the sentencing enhancements of a prior

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conviction and death or great bodily injury would have resulted in a 360-month mandatory

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minimum sentence. 21 U.S.C. § 841(b)(1)(C). Instead, the Government agreed to seek a sentence

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of no greater than 120 months. Campbell, CR17-0025-JCC, Dkt. No. 9 at 7. Had Petitioner

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rejected the plea deal that Ms. Wellman negotiated, the Government would have been free to

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pursue all applicable sentencing enhancements at trial. Id. For these reasons, the Court finds that
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Ms. Wellman’s investigation into J.M.’s death and subsequent ability to negotiate a plea deal in

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which the Government agreed not to charge Petitioner with causing the death of J.M. was not

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professionally unreasonable.

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Petitioner further fails to show that he suffered any prejudice from Ms. Wellman’s

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alleged failure to investigate the chain of custody. Petitioner received a sentence of six years,

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well below the sentencing guideline range for his offense score, and less than a third of the 20-

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year mandatory minimum he could have faced. See Campbell, CR17-0025-JCC, Dkt. No. 36.

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Petitioner has provided no evidence to support an allegation that Petitioner would have received

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a lighter sentence if Ms. Wellman had questioned the samples’ chain of custody more forcefully

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then she already did. For these reasons, Petitioner’s motion for relief on this ground is DENIED.

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2. Ineffective assistance of appellate counsel.

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Petitioner argues that Mr. Levin rendered ineffective assistance of counsel by

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withdrawing Petitioner’s notice of appeal to the Ninth Circuit. (Dkt. No. 14 at 5.) Petitioner

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argues that Mr. Levin’s failure to pursue an appeal that Defendant would otherwise have pursued

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is presumptively prejudicial. See Roe v. Flores-Ortega, 528 U.S. 470, 471–72 (2000); see also

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Garza v. Idaho, 139 S.Ct. 738, 742 (2019). In Garza, the Court held that even if the defendant

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has waived his right to appeal on most grounds, the defendant need not present meritorious

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grounds for appeal in order to allege ineffective assistance of counsel for preventing the

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Petitioner from filing a notice of appeal. Id.

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But the cases Petitioner cites are distinguishable from his own. Ms. Wellman did file a

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notice of appeal with the Ninth Circuit. Campbell, CR17-0025-JCC, Dkt. No. 41. After

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substitution, Mr. Levin maintained the appeal until voluntary dismissal. Campbell, CR17-0025-

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JCC, Dkt. No. 55. Petitioner signed the motion to withdraw, consenting to the appeal’s voluntary

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dismissal. Campbell, CR17-0025-JCC, Dkt. No. 54 at 2. Petitioner chose to file a pro se motion

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to withdraw his guilty plea with this Court the same day he chose to voluntarily dismiss his

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notice of appeal. Campbell, CR17-0025-JCC, Dkt. Nos. 51, 54. Mr. Levin’s advice, likely based
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on the appeal waiver, that Petitioner should withdraw his appeal, and Petitioner’s subsequent

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decision to follow that advice, is not the same as Mr. Levin preventing Petitioner from filing an

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appeal. See Roe, 528 U.S. at 471–72; see also Garza, 139 S.Ct. at 742. Mr. Levin’s advice to

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withdraw the notice of appeal is not presumptively prejudicial.

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Nor were Mr. Levin’s actions professionally unreasonable under Strickland. See

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Strickland, 466 U.S. at 691–92. Petitioner was barred from directly appealing his sentence, fine,

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restitution order, probation or supervised release conditions, and forfeiture order by the terms of

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the plea agreement. See Campbell, CR17-0025-JCC, Dkt. No. 9. Though the grounds for

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Petitioner’s appeal are unknown, appeal on any grounds barred by the plea agreement could be

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cause for rescission of the plea agreement, and could lead the Government to re-charge

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Petitioner, including with the great bodily injury or death sentencing enhancement he had

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successfully avoided through his plea deal. Id. Mr. Levin’s advice to withdraw the notice of

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appeal in light of the appeal wavier is not professionally unreasonable. And, Petitioner cannot

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show prejudice under the second prong of Strickland. See Strickland, 466 U.S. at 691–92.

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Petitioner has not articulated any basis for appeal, nor has he demonstrated how such an appeal

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would not be precluded by the plea agreement. (See Dkt. No. 14.) He has also not shown that he

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was entitled to relief by the Ninth Circuit. For these reasons, the Court finds that Mr. Levin did

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not render ineffective assistance of counsel, and DENIES Petitioner’s motion for relief on this

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ground.

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D.

Conditions of Supervised Release

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Petitioner asserts that the conditions of his supervised release are unconstitutionally

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overbroad and vague, and that Petitioner did not receive notice of the conditions in time to object

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to them. (Dkt. No. 14 at 7.) The special conditions of supervised release that the Government

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sought to impose were contained in the report of probation services, which was circulated to the

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parties two weeks before the sentencing hearing. (See Dkt. No. 16 at 33); Campbell, CR17-0025-

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JCC, Dkt. No. 20 at 2. The standard conditions the Government sought to impose were contained
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in the proposed judgment and sent to defense counsel two weeks before the sentencing hearing.

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(Dkt. Nos. 18-1, 18-2.) At the sentencing hearing, Petitioner was asked if he had received, and

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had an opportunity to read and comment on, the report produced by probation. (Dkt. No. 16-3 at

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3.) Ms. Wellman stated that he had. (Id.) Neither Ms. Wellman nor Petitioner objected to the

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supervised release conditions at sentencing. (See Dkt. No. 16-3.) Therefore, the Court finds that

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Petitioner did have adequate time to review and object to the proposed conditions of supervised

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release.

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Further, Petitioner has waived any right to bring a collateral attack against the conviction
and sentence imposed, except as it may relate to the effectiveness of legal representation.

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Campbell, CR17-0025-JCC, Dkt. No. 9. Petitioner has not asserted that the imposition of the

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conditions of supervised release were imposed as a result of ineffective assistance of counsel.

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(See Dkt. No. 14.) Petitioner instead argues that despite such waiver, he may challenge a

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condition of supervised release as a violation of due process on the grounds of unconstitutional

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vagueness. See United States v. Adkins, 743 F.3d 176, 192 (7th Cir. 2014); see also United States

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v. Soltero, 510 F.3d 858, 865–66 (9th Cir. 2007).

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“A [condition of supervised release] violates due process of law if it either forbids or

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requires the doing of an act in terms so vague that men of common intelligence must necessarily

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guess at its meaning and differ as to its application.” United States v. Hug, 384 F.3d 762, 768

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(9th Cir. 2004). Though Petitioner alleges that several conditions of supervised release are

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invalid on constitutional grounds, Petitioner does not allege that any of the conditions are

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unconstitutionally vague. (See Dkt. Nos. 14, 14-1.) Petitioner also does not allege that he or a

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reasonable individual must guess as to whether conduct is prohibited by the probation conditions.

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(See id.) Petitioner’s claims on other constitutional grounds are therefore barred by the terms of

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the plea agreement. See Adkins, 743 F.3d at 176 (“Nor is there a general constitutional-argument

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exception to waivers in plea agreements . . . Thus, it remains generally unproblematic to

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knowingly waive a constitutional right or to lose a constitutional right.”).
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III.

CONCLUSION
For the foregoing reasons, Petitioner’s motion for habeas corpus relief (Dkt. No. 14) is

DENIED.
DATED this 18th day of July 2019.

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John C. Coughenour
UNITED STATES DISTRICT JUDGE

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