Opinion
File No. 1:04-CV-147.
March 16, 2005
OPINION
This matter is before the Court on Movant Javier Ramos Garcia's motion to vacate, set aside or correct his sentence under 28 U.S.C. § 2255.
On October 9, 2002, Movant entered a guilty plea to one count of conspiracy to possess with intent to distribute and to distribute 500 grams or more of methamphetamine in violation of 21 U.S.C. §§ 846, 841(a)(1), and 841(b)(1)(a)(viii). United States v. Garcia, et al, Case No. 1:01-CR-262 (W.D. Mich. 2001) (Docket #87). On June 20, 2003, Movant was sentenced to 138 months imprisonment and five years supervised release. Although Movant filed an appeal of his conviction, it was voluntarily withdrawn on July 17, 2003. Thereafter, Movant filed the instant motion raising two claims for relief.
Movant contends that the Presentence Report ("PSR") was not adequately prepared, represented only the views of the Government, and "was prejudice to Mr. Garcia." Further, Movant argues that the Court erred by basing its judgment on the PSR and that the Court erred by failing to decrease his offense level for acceptance of responsibility. Respondent has filed a response to Movant's motion.
I.
A prisoner who moves to vacate his sentence under § 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. In order to obtain collateral relief under § 2255, a movant must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982). "To prevail under § 2255, [movant] must show a `fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
In an action to vacate or correct the sentence, the court is required to grant a hearing to determine the issues and make findings of fact and conclusions of law "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. No evidentiary hearing is required if the movant's allegations "cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). Where, as here, the judge considering the § 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).
II.
Section 2255 is not a substitute for a direct appeal, and thus a defendant cannot use it to circumvent the direct appeal process. Frady, 456 U.S. at 167-68 (1982). It is well settled that an argument not raised on direct appeal is waived. See Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996). In Grant, the Sixth Circuit denied a request for collateral relief based upon an allegedly erroneous application of the Guidelines because such a claim was nonconstitutional and was waived for collateral review if it was not asserted at trial or on direct appeal unless the error was, "something akin to a denial of due process." 72 F.3d at 506. Put another way, a nonconstitutional claim, such as a mistake in the application of the sentencing guidelines, can be raised for the first time on collateral review only when the alleged error constitutes a "fundamental defect which inherently results in a complete miscarriage of justice." Jones v. United States, 178 F.3d 790, 796 (6th Cir. 1999) (quoting Reed v. Farley, 512 U.S. 339, 348 (1994) (citation omitted) (holding that movant was procedurally barred from asserting that the district court erred in not applying an amendment to the federal sentencing guidelines where the argument had not been raised on direct appeal)).Although Movant initially filed an appeal of his conviction on July 17, 2003, the following day he voluntarily dismissed the appeal. See United States v. Garcia, 6th Circuit Court of Appeals Docket #03-1878 (6th Cir. 2003). Therefore, Movant has not pursued his nonconstitutional claims on direct review and cannot obtain collateral review of them. See also Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998) (refusing to address relevant conduct or criminal history sentencing issues because they were not pursued on direct appeal) (citing Grant, 72 F.3d at 505).
Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either cause and actual prejudice, or that he is actually innocent. Bousley v. United States, 523 U.S. 614, 622 (1998). Movant has not attempted to claim that he is actually innocent and has not asserted any cause or prejudice for his failure to pursue his direct appeal. Accordingly, Movant is procedurally barred from obtaining relief under § 2255.
IV.
Even if the Court were to consider the merits of Movant's claims, Movant would be unable to prevail on his motion. A review of Movant's criminal proceeding reveals that on the date set for trial, October 9, 2002, Movant tendered a guilty plea. As part of his plea, Movant explained that he brokered a deal, on behalf of his brother, in which he delivered one pound of methamphetamine to a buyer. Plea Transcript at 9-12, attached to Respondent's Brief as Exhibit A. Movant also admitted that he delivered a second package containing methamphetamine to an undercover police officer on another occasion. Id. at 14-15. Finally, Movant acknowledged that he knew that delivering the drugs was illegal. Id. at 12.
Following Movant's plea an initial presentence interview was scheduled for December 19, 2002. Movant's attorney was not present at this interview. During the interview, Movant explained that he did not know why he was guilty of the crime charged and denied having ever sold methamphetamine. See PSR ¶ 42. Movant provided a receipt for one pound of PRO MSM, a bovine supplement, as evidence purportedly exonerating him. PSR ¶ 31. Movant also informed the probation officer that he was dissatisfied with his attorney's representation of him and wished to retain his own counsel. Id. at ¶ 35. The probation officer discontinued the interview at that time. Id.
The receipt offered by Movant was dated October 8, 2002, one day before his plea hearing. See Sentencing Transcript at 15. According to the indictment, the conduct Movant was charged with occurred between December 1999 and April 2001. Case No. 1:01-CR-262 Docket #1.
On January 9, 2003, the probation officer attempted to resume the interview with Movant and his attorney. Movant again explained that he was unhappy with his attorney's representation and wished to retain his own counsel. Id. at ¶ 36. The interview was again discontinued. Thereafter, Movant's attorney moved to withdraw. The Court, however, denied this motion and ordered counsel to arrange a meeting between Movant and the probation office to complete the presentence interview. See Garcia, Case No. 1:01-CR-262 (Docket #46). Counsel did not comply and the Probation Office was unable to arrange another meeting with counsel and Movant. Because the probation officer could not reschedule the presentence interview, the PSR was prepared based upon information provided by Movant at his December 19, 2002 interview, as well as information from his co-defendants. PSR at ¶ 6. On April 25, 2003, the Court allowed counsel to withdraw and appointed new counsel, John Tamboer, to represent Movant at sentencing. Garcia, Case No. 1:01-CR-262 (Docket #52). The Court also adjourned sentencing.
Thereafter, prior to sentencing, Tamboer reviewed the presentence report and discussed it with Movant. See June 11, 2003 Letter attached to PSR as Supplemental Letter. Tamboer informed the probation officer that he objected to the PSR's enhancement for obstruction of justice and the lack of an adjustment for acceptance of responsibility. Id. Tamboer also indicated that Movant wished to accept responsibility for the two methamphetamine deliveries in which he participated. On June 13, 2003, the probation officer again met with Movant and Tamboer to continue the interview. When Movant again failed to accept responsibility for the offense of conviction, the interview was discontinued. See June 17, 2003 Letter attached to PSR as Supplemental Letter.
The case then proceeded to sentencing. At the sentencing hearing, Tamboer, on behalf of his client, explained that they did not have any factual objections to the PSR. Sentencing Transcript, Exhibit B attached to Respondent's Brief at 9. Tamboer did, however, object to the enhancement for obstruction of justice and the failure to adjust the guideline range for acceptance of responsibility. Id. at 9-12. Ultimately, the Court granted the objection to enhancement for obstruction of justice and denied the objection for acceptance of responsibility. Id. at 17-19. In ruling on Movant's acceptance of responsibility, the Court noted that Movant did not plead until the eve of trial, had subsequently denied responsibility for the two methamphetamine deliveries, and attempted to assert that he merely purchased an animal feed product. Id. at 18-19. Based upon Movant's actions, the Court held that he had not given "a full and complete statement with a tender and an honesty that pervades the entire tendering." Id. at 18. Accordingly, the Court denied the motion for acceptance of responsibility.
Turning to the claims asserted in Movant's § 2255 motion. Movant's first claim for relief is that the Court erred in relying upon the PSR because it was inadequately prepared, only represented the views of the Government, and was prejudicial to him. A review of the record demonstrates that Movant's claims are unfounded. Movant contends that the PSR was not adequately prepared because his presentence interview was never completed. This claim rests solely on the events surrounding the December 19, 2002, presentence interview and the subsequent attempts to continue that interview. In making his claim, Movant completely ignores the events occurring post-January 2003 when he was appointed new counsel, they reviewed the presentence report, and a third presentence interview (with counsel) was attempted. Moreover, Movant does not acknowledge that at the sentencing hearing, no objection was made regarding the facts contained in the PSR. The record establishes that Movant was given numerous opportunities to participate in an interview with the probation officer, was given the opportunity to have new counsel appointed, given additional time within which to review the PSR with his new counsel, and was given the opportunity to object to the PSR, both before and during, the sentencing hearing. In short, Movant was able to participate in the preparation of the PSR. Further, there is no evidence that the PSR was inadequate or that it did not conform to the requirements of FED. R. CRIM. P. 32(d). Accordingly, Movant's claim that the PSR was inadequately prepared is without merit.
Movant's second claim for relief is that the Court erred by denying him a three level reduction for acceptance of responsibility pursuant to U.S.S.G. § 3E1.1. In order to receive a reduction for acceptance of responsibility a defendant must "clearly demonstrate acceptance of responsibility for his offense. . . ." U.S. SENTENCING GUIDELINES MANUAL § 3E1.1(a) (2003). "Where . . . a defendant concocts a story that excuses his illegal conduct, a court may find no acceptance of responsibility. . . . The excuse . . . might demonstrate the defendant's unwillingness to admit his culpability." United States v. Roper, 135 F.3d 430, 435 (6th Cir. 1998) (quoting United States v. Greene, 71 F.3d 232, 235 (6th Cir. 1995)). Further, the entry of a guilty plea does not, as a matter of right, entitle a defendant to a sentence reduction. United States v. Edwards, 272 F.3d 812, 815 (6th Cir. 2001). But the entry of a guilty plea "combined with truthfully admitting the conduct comprising the offense . . . will constitute significant evidence of acceptance of responsibility. . . ." United States v. Wolfe, 71 F.3d 611, 616 (6th Cir. 1995) (quoting U.S. SENTENCING GUIDELINES MANUAL § 3E1.1, application note 3 (2003)).
Applying these principles to this case it is clear that the Court did not err in refusing to grant Movant a departure for acceptance of responsibility. During his plea hearing, Movant did plead guilty and forthrightly explained the illegal conduct that he engaged in. However, he subsequently (and repeatedly) denied any responsibility for the offense to the probation officer. Even going so far as to allege that he was merely purchasing animal feed. PSR ¶ 31. Movant argues that his attempt to deny responsibility was based upon confusion between himself and his previous counsel. This allegation, however, is suspect when coupled with the fact that after receiving new counsel, Movant continued to deny responsibility for his offense. See June 17, 2003 Letter attached to PSR as Supplemental Letter. Movant's actions following his guilty plea were not consistent with someone who truthfully admits the conduct comprising the offense. See UNITED STATES SENTENCING GUIDELINES § 3E1.1, application note 3. Accordingly, a denial of acceptance of responsibility was proper and will not be disturbed on collateral review.
Finally, in his reply brief, Movant appeared to raise two new grounds for relief from his sentence. Although it is not proper to raise new arguments in a reply, the Court will consider them because they can quickly be resolved. In his reply, Movant appears to allege that he received ineffective assistance of counsel from his initial appointed counsel. To show ineffective assistance of counsel, a "defendant must show that counsel's performance was deficient [and] . . . that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). Even if the Court assumes that counsel's performance was deficient, Movant's claim would fail because he cannot show any prejudice to his defense. After Movant's counsel failed to reschedule the presentence interview, the Court appointed a new attorney to represent Movant. Movant's new attorney ably represented him, reviewing the PSR with Movant, participating in a third interview with the probation officer, and filing objections to the PSR. In fact, counsel's objection to an enhancement for obstruction of justice was granted, thus lowering Movant's guideline range. There is no evidence to support a claim of ineffective assistance of counsel.
In addition, Movant requests that the Court consider his sentence in light of Blakely v. Washington, 124 S. Ct. 2531 (2004), and United States v. Booker, 125 S. Ct. 738 (2005). Movant's sentence was final well before Blakely and Booker were announced and neither decision has been applied retroactively to cases on collateral review. See Humphress v. United States, No. 03-5951, 2005 WL 433191 (6th Cir. Feb. 25, 2005) ( Booker does not apply retroactively to cases on collateral review); In re Dean, 375 F.3d 1287 (11th Cir. 2004) (noting that the Supreme Court strongly implied in Schriro v. Summerlin, 124 S. Ct. 2519 (2004), that Blakely is not to be applied retroactively). Accordingly, Movant cannot obtain relief based upon Blakely and Booker.
Even if the Court gave Movant the benefit of the latest possible date for finality of his conviction it would still be prior to the date the Supreme Court announced Blakely and Booker. Movant's appeal was voluntarily dismissed on July 18, 2003. Assuming that the 90-day period in which Movant could have petitioned for certiorari to the Supreme Court applied, Movant's conviction became final well before Blakely (June 24, 2004) and Booker (January 12, 2005) were announced. Therefore, application of the new rules announced in those cases turns on their retroactive application.