Summary
noting that Alleyne and other rules based on Apprendi v. New Jersey, 530 U.S. 466, do not apply retroactively to cases on collateral review
Summary of this case from Henry v. United StatesOpinion
No. 5:11-CR-00231-F-1 No. 5:13-CV-00284-F
08-14-2014
JULIUS GRANT JACKSON, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the court on the Government's Motion to Dismiss [DE-123] Julius Grant Jackson's pending Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-113]. Also before the court is Jackson's Supplemental Brief [DE-130]. The issues have been fully briefed and are now ripe for ruling. For the reasons more fully stated below, the Government's Motion to Dismiss is ALLOWED, and Jackson's Supplemental Brief is DENIED.
Factual and Procedural Background
On August 3, 2011, Jackson and a co-defendant were charged in a nine-count indictment. See Indictment [DE-1]. A superseding indictment was returned on October 19, 2011. See Superseding Indictment [DE-32]. In Count One of the Superseding Indictment, Jackson was charged with possessing a firearm, that is, a destructive device commonly known as a molotov cocktail, and aiding and abetting, in violation of 26 U.S.C. §§ 5861(d) and 5871 and 18 U.S.C. § 2. Count Two charged Jackson with maliciously damaging and destroying, by means of fire and explosive materials, a vehicle used in interstate commerce and aiding and abetting, in violation of 18 U.S.C. §§ 844(i) and 2. In Count Three, Jackson was charged with knowingly and intentionally manufacturing, distributing and/or dispensing a quantity of a mixture or substance containing a detectable amount of methamphetamine, a Schedule II controlled substance and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. Count Four charged Jackson with knowingly and intentionally possessing equipment, chemicals, products and material with the intent to manufacture a controlled substance or listed chemical, to wit: methamphetamine, a Schedule II controlled substance and aiding and abetting, in violation of 21 U.S.C. § 843(a)(6) and 18 U.S.C. § 2. In Count Five, Jackson was charged with knowingly possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Count Six charged Jackson with knowingly and intentionally possessing a listed chemical, to wit: pseudoephedrine, with the intent to manufacture a controlled substance, that being methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(c)(1). In Count Seven, Jackson was charged with knowingly and intentionally possessing equipment, chemicals, products and material which may be used to manufacture a controlled substance or listed chemical, to wit: methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 843(a)(6). Count Eight charged Jackson with knowingly and intentionally possessing a listed chemical, to wit: pseudoephedrine, with the intent to manufacture a controlled substance, that being methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(c)(1). In Count Nine, Jackson was charged with knowingly and intentionally possessing a listed chemical, to wit: pseudoephedrine, with the intent to manufacture a controlled substance, that being methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(c)(1).
Jackson's arraignment was held on February 27, 2012. Pursuant to a written plea agreement [DE-84], Jackson pled guilty to Counts Two and Four of the Superseding Indictment. It was agreed that the remaining counts would be dismissed at sentencing. [DE-84 at 6.]
On June 7, 2012, Jackson was sentenced to 113 months' imprisonment on Count Two and 113 months' imprisonment on Count Four. See Judgment [DE-109]. The terms were ordered to be served concurrently. Jackson did not appeal his conviction or sentence.
Jackson filed the instant Motion to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255 [DE-113] on April 12, 2013. In his § 2255 motion, Jackson argues that he is entitled to relief because he received ineffective assistance of counsel in the following respects: (1) his attorney failed to challenge the two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12); and (2) his attorney failed to make the court aware of the Government's condition that he withdraw his objections to the Presentence Report in order to receive the benefit of a § 5K1.1 motion. In its Motion to Dismiss, the Government contends that dismissal is warranted on the basis that Jackson's attorney did not violate either prong of Strickland v. Washington, 466 U.S. 668 (1984).
Discussion
I. § 2255 Motion
A. Jackson Has Failed to State a Claim of Ineffective Assistance of Counsel.
In order to prevail on a claim of ineffective assistance of counsel, a petitioner must show that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687-88 (1984). The petitioner bears the burden of proof as to both prongs of the Strickland standard. United States v. Luck, 611 F.3d 183, 186 (4th Cir. 2010). Under the first prong, the petitioner must show that counsel's representation "fell below an objective standard of reasonableness" as measured by "prevailing professional norms." Strickland, 466 U.S. at 688. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id at 689. As for the second prong, the petitioner must demonstrate that counsel's inadequate performance prejudiced his defense. Id. at 687. Specifically, the petitioner must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome." Id. With this standard in mind, the court will address both of Jackson's ineffective assistance of counsel claims.
1. Failed to challenge enhancement pursuant to U.S.S.G. § 2D1.1(b)(12)
U.S.S.G. § 2D1.1(b)(12) provides: "If the defendant maintained a premises for the purpose of manufacturing or distributing a controlled substance, increase by 2 levels."
In his first claim, Jackson alleges that his attorney provided ineffective assistance of counsel by failing to challenge the two-level enhancement pursuant to U.S.S.G. § 2D1.1(b)(12). [DE-113 at 4; DE-119 at 3-9.] Jackson argues that there was no evidence to support the Probation Office's determination that he used his home for any purpose other than shelter. [DE-113 at 4.] Jackson concludes that his attorney knew he was "not guilty" of maintaining a premises for the purpose of manufacturing a controlled substance, and his attorney erred by withdrawing the objection to the enhancement. [DE-113 at 4; DE-119 at 6, 9.]
A review of the record reveals that Jackson's Presentence Report included a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12). PSR ¶ 59. The evidence before the court to support this enhancement came from the search warrant executed at Jackson's house and storage shed. PSR ¶ 15. Specifically, the evidence showed that investigators discovered that Jackson was using his storage shed to produce methamphetamine. Id. The search of Jackson's residence and storage shed produced the following relevant items: an HCL generator, coffee filters, Morton sah. Hot Power drain cleaner, plastic tubing, and ammonium nitrate fertilizer. Id.
Prior to sentencing, Jackson's attorney objected to him receiving a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12). See Revised Addendum to PSR at 1. According to Jackson, his attorney withdrew the objection so that he would get the benefit of a § 5K1.1 motion. [DE-119 at 5-6.]
This claim must fail under Strickland because Jackson has not sufficiently alleged deficient performance. Specifically, the court concludes that Jackson's attorney's conduct is entitled to deference because it appears he made a tactical decision not to object to the enhancement in order to secure a motion for downward departure. The record reveals that the Government did file a motion for a downward departure due to substantial assistance [DE-105], pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1. Notably, the Government's motion resulted in Jackson receiving a sentence well below the bottom of his advisory guideline range. Accordingly, Jackson's first claim must fail.
While Jackson blames his attorney for withdrawing the objection to U.S.S.G. § 2D1.1(b)(12), Jackson also concedes that his attorney put the issue before him and Jackson agreed to waive the objection in order to get the benefit of a § 5K1.1 motion. [DE-119 at 3.]
Jackson's advisory guideline range for Count Two was 151 to 188 months' imprisonment and for Count Four it was 120 months. As to Count Four, were it not for the statutory impact, the guideline imprisonment range would have been 151 to 188 months.
2. Failed to advise the court
In his second and final claim, Jackson alleges that his attorney provided ineffective assistance of counsel by failing to advise the court that the Government required Jackson to withdraw his objections to the Presentence Report in order to get the benefit of a § 5K1.1 motion. [DE-119 at 9.] Jackson contends that the Government's insistence that he withdraw his objections or be subjected to a much higher sentence constituted duress. Id. at 5.
Pursuant to the terms of its plea agreement with Jackson, the Government retained the discretion to decide whether or not to file a § 5K1.1 motion. [DE-84 at 6.] For this reason, even if Jackson's attorney had presented this issue to the court, it would have been without consequence. Accordingly, Jackson's second claim is without merit. See Moore v. United States, 934 F. Supp 724, 731 (E.D.Va. 1996) (holding that failure to raise a meritless argument can never amount to ineffective assistance). II. Supplemental Brief
Jackson's plea agreement with the Government in pertinent part provides:
4. The United States agrees:
. . . .
e. That it will make known to the Court at sentencing the full extent of the Defendant's cooperation, but the United States is not promising to move for departure pursuant to U.S.S.G. §5K1.1, 18 U.S.C. § 3553(e), or Fed. R. Crim. P. 35.
In his Supplemental Brief [DE-130], which the court has construed as a Motion to Amend, Jackson argues that he is entitled to relief pursuant to Alleyne v. United States, — U.S. —, 133 S.Ct. 2151 (2013). Specifically, Jackson contends that he received three sentencing enhancements that took his sentence above the maximum penalty. [DE-130 at 1-2.]
Jackson asserts that the following sentencing enhancements were erroneously applied: (1) a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(1); (2) a two-level increase pursuant to U.S.S.G. § 2D1.1(b)(12); and (3) a three-level increase pursuant to U.S.S.G. § 2D1.1(b)(13)(C)(ii).
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The amendment of a § 2255 motion is governed by Rule 15 of the Federal Rules of Civil Procedure. See United States v. Pittman, 209 F.3d 314, 317 (4th Cir. 2000) (noting that although the Rules Governing Section 2255 do not specify a procedure for amending motions, courts have typically applied Federal Rule of Civil Procedure 15). The Fourth Circuit has held that "the standards used by a district court in ruling on a motion to amend or on a motion to supplement are nearly identical." Franks v. Ross, 313 F.3d 184, 198 n.15 (4th. Cir. 2002). "In either situation, leave should be freely granted, and should be denied only where 'good reason exists ... , such as prejudice to the defendants.'" Id. (quoting Walker v. United Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2001) (internal quotation and citation omitted)). Leave to amend should also be denied when the amendment would be futile. Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir. 1999).
In Alleyne, the Supreme Court concluded that the trial court erred when it imposed a seven-year mandatory sentence on a § 924(c) conviction, on the basis that the jury had not found that the firearm had been brandished. 133 S.Ct. at 2156-58. The Supreme Court held that any fact, other than a prior conviction, that increases the statutory minimum punishment is an element of the offense that must be submitted to the jury and found beyond a reasonable doubt. 133 S.Ct. at 2162-63.
Jackson is not entitled to relief under Alleyne. Initially, Jackson is not entitled to relief because Alleyne does not preclude a court from making factual findings at sentencing for facts that do not impact the statutory punishment. See Alleyne, 133 S.Ct. at 2163 (emphasizing that its ruling did "not mean that any fact that influences judicial discretion must be found by a jury"); see also United States v. Booker, 543 U.S. 220, 233 (2005) ("[W]hen a trial judge exercises his discretion to select a specific sentence within a defined range, the defendant has no right to a jury determination of the facts that the judge deems relevant."); United States v. Valdez, 739 F.3d 1052, 1054 (7th Cir. 2014) (declining to interpret Alleyne as overruling Booker to require that factual issues related to the determination of the defendant's advisory Guidelines range be submitted to a jury). Moreover, Alleyne does not help Jackson because it has not been made retroactively applicable to cases on collateral review. See United States v. Stewart, 540 Fed. Appx. 171, 172 n.1 (4th Cir. 2013); Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013) (noting that Alleyne is an extension of Apprendi v. New Jersey, 530 U.S. 466 (2000), and the Justices have decided other rules based on Apprendi do not apply retroactively on collateral review, which implies that the Court will not declare Alleyne to be retroactive). Accordingly, Jackson's Supplemental Brief [DE-130], which the court has construed as a Motion to Amend, is DENIED.
Conclusion
For the foregoing reasons, the Government's Motion to Dismiss [DE-123] is ALLOWED, and Jackson's § 2255 motion [DE-113] is DISMISSED. Additionally, Jackson's Supplemental Brief [DE-130], which the court has construed as a Motion to Amend, is DENIED. The court concludes that Jackson has not made the requisite showing to support a certificate of appealability. Therefore, a certificate of appealability is DENIED.
SO ORDERED.
This the 14th day of August, 2014.
/s/_________
James C. Fox
Senior United States District Judge
Plea Agreement [DE-84] at 6.