Opinion
No. 2:00cv104-H. [2:93cr71-01].
January 5, 2001
SECOND MEMORANDUM AND RECOMMENDATION
THIS MATTER is before the court in accordance with 28, United States Code, Section 636(b); the standing orders of designation entered by the district court; and the specific Referral Order entered by Honorable Charles H. Haden II, United States District Judge.
Now before the court is the remainder of petitioner's May 26, 2000, Motion to Vacate, Set Aside, or Correct a Sentence, filed pursuant to 28, United States Code, Section 2255. Having carefully considered the respondent's response, petitioner's reply, and respondent's surreply, the undersigned will recommend that the remainder of the motion be dismissed with prejudice for the reasons discussed below.
I. Procedural History
In 1993, petitioner was tried by a jury and found guilty of one count of violating 21, United States Code, Sections 841(a)(1) and 2, "Manufacturing and Possessing with Intent to Distribute Methamphetamine"; two counts of violating 21, United States Code, Section 846, "Conspiracy to Manufacture and Possess with Intent to Distribute Methamphetamine"; and one count of violating 18, United States Code, Section 924(c)(1), "Use and Carry of a Firearm During or in Relation to the Commission of a Felony."
Petitioner was sentenced under the 1993 Sentencing Guidelines to a total term of 196 months' imprisonment — 136 months' concurrent imprisonment on the three drug-related charges and a mandatory consecutive term of 60 months' imprisonment on the firearms violation. The district court recommended that petitioner receive credit for time served.
On direct appeal, petitioner challenged his Section 924(c)(1) conviction for using or carrying a firearm during or in relation to a drug trafficking crime and there argued against the quantity of methamphetamine attributable to him. United States v. Keener, 181 F.3d 93, 1999 WL 333126 (4th Cir. 1999). Petitioner's conviction and sentence were affirmed.
After filing his pro se 2255 motion, the government, quite properly, conceded that it failed to establish the type of methamphetamine involved in petitioner's conviction, even though petitioner did not specifically raise the issue in his motion. As a sentencing factor under the 1993 Guidelines, the government had the burden of proving by a preponderance of the evidence the type of methamphetamine involved in petitioner's case. United States v. Jennings, 12 F.3d 836, 838 (8th Cir. 1994). When petitioner was sentenced, the 1993 Guidelines treated d-methamphetamine more severely than its less potent isomer, l-methamphetamine. U.S.S.G. § 2131.1., comment, n. 10, and Drug Equivalency Tables (1993).
After receiving the government's response to petitioner's motion, the undersigned, in accordance with Rule 12, Federal Rules of Civil Procedure, converted respondent's response into a motion for summary judgment. Thereafter, the undersigned recommended summary judgment on the conceded issue and appointed counsel to represent petitioner, inasmuch as it appeared that he was entitled to relief and would be facing a proceeding at which substantial rights were at stake. Due to the proximity of a hearing on November 29, 2000, the undersigned deferred to the district court decision on the remaining claims. When there was a change in scheduling, the district court recommitted those claims to the undersigned for a recommendation. Following recommitment, the government timely filed its supplemental response, which the undersigned has considered as a reply. No request for hearing has been submitted, and this matter is now ripe for disposition on the pleadings.
II. Standard
On a motion for summary judgment, the moving party has the burden of production to show that there are no genuine issues for trial. Upon the moving party's meeting that burden, the nonmoving party has the burden of persuasion to establish that there is a genuine issue for trial.
When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. In the language of the Rule, the non moving party must come forward with "specific facts showing that there is a genuine issue for trial." Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving [sic] party, there is no "genuine issue for trial."Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citations omitted; emphasis in the original) (quoting Fed.R.Civ.P. 56). There must be more than just a factual dispute; the fact in question must be material and readily identifiable by the substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
By reviewing substantive law, the court may determine what matters constitute material facts. Id. "Only disputes over facts that might affect the outcome of the suit under governing law will properly preclude the entry of summary judgment," Id., at 248. A dispute about a material fact is "genuine" only if the evidence is such that "a reasonable jury could return a verdict for the nonmoving party." Id.
[T]he court is obliged to credit the factual asseverations contained in the material before it which favor the party resisting summary judgment and to draw inferences favorable to that party if the inferences are reasonable (however improbable they may seem).Cole v. Cole, 633 F.2d 1083, 1092 (4th Cir. 1980). When resolution of issues of fact depends upon a determination of credibility, summary judgment is improper. Davis v. Zahradnick, 600 F.2d 458 (4th Cir. 1979).
III. Discussion
A. Remaining Contentions
Petitioner raised a number of claims that were unique to his case and which, having been reviewed by experienced court-appointed counsel, petitioner and his attorney determined remained viable. First, petitioner argues that claims concerning his Section 924(c)(1) conviction are not successive, but if they are procedurally barred, they should be considered in any event based upon actual innocence. Second, he contends that his sentence was based upon an improper criminal-history calculation because, he argues, he received a higher criminal-history category for conduct that was part of the instant offenses. Third, petitioner contends that he did not receive a fair trial due to prejudicial joinder. Fourth, and finally, petitioner, through counsel, requests an evidentiary hearing in accordance with Rule 8 of the Rules Governing Habeas Corpus Proceedings, inasmuch as his 2255 motion involves claims of ineffective assistance of counsel.
B. Successiveness of Claims Concerning Section 924(c)(1)
Recognizing that successive claims are no longer viable under Section 2255, petitioner first argues that his claims involving his Section 924(c)(1) conviction are not successive, but, if they are procedurally barred, they should be considered in any event based upon actual innocence.
Petitioner challenged his firearms conviction on direct appeal, but claims, in light of Bailey v. United States, 516 U.S. 137 (1995), that he is entitled to relitigate this issue because the jury was erroneously charged that "proximity, possession, or storage of a firearm constituted 'use' and 'carry' of a firearm." He argues that the conviction must be reversed because the verdict renders it impossible to say under which view of the law he was convicted. This issue was addressed on direct appeal:
[Petitioner] Keener appeals his conviction under 18 U.S.C.A. § 924(c)(1) for using or carrying a firearm during or in relation to a drug trafficking crime.Keener, 1999 WL 333126, at 5. Petitioner also asserted on appeal the following:
[T]he government proceeded against [petitioner] under the "use" prong of § 924(c)(1) and that, in light of the Supreme Court's subsequent clarification of that term in Bailey v. United States, 516 U.S. 137 (1995), there was insufficient evidence to support a conviction for "use" of a firearm within the meaning of § 924(c)(1).Id., at 6. While respondent conceded on appeal that the evidence of "use" was insufficient to sustain a conclusion on that basis, it contended that "affirmance of the conviction [was] nevertheless appropriate because the evidence [was] sufficient to warrant a conviction on the basis that [petitioner] 'carried' a firearm." Id. The appellate court concluded, as follows:
[T]he circumstantial evidence was more than sufficient to support a verdict that [petitioner] Keener "carried" a firearm during and in relation to his drug trafficking crimes.Id., at 6-7. A claim is successive if it raises grounds identical to grounds heard and decided on the merits in a previous petition. Kuhlmann v. Wilson, 477 U.S. 436, 445, n. 6 (1986). Petitioner's claims, therefore, are successive, and the undersigned will recommend dismissal.
Petitioner also argues that if he is procedurally barred on this issue, he be allowed to proceed based on actual innocence. A claim of "actual innocence" can serve as "a gateway through which a habeas petitioner must pass to have otherwise barred constitutional claims considered on the merits." Schlup v. Delo, 513 U.S. 298, 314-15 (1995). To avail himself of such extraordinary relief, petitioner must accompany his barred claims with a showing of actual innocence. Plaintiff argues that the facts of the case were that two guns were located in his home at the time of the drug deal at issue — one in a government witness' satchel, and one on top of a china cabinet. Further, he argues that had the trial court had the guidance of Bailey, he would not have been convicted of such offense. Petitioner, however, overlooks that the Court of Appeals for the Fourth Circuit, in considering this very issue in 1999, had not only Bailey, but its progeny, to consider. Petitioner citesMuscarello v. United States, 524 U.S. 125 (1998), for the proposition that he is entitled to relief on the "carry" issue; however, that decision is inapposite to his claim, in that the Supreme Court there sustained a conviction where a defendant brought a firearm to the location of a drug sale. Finally, the appellate court sustained petitioner's conviction for carrying and cited Muscarello v. Keener,supra, at 6-7. Petitioner has neither established a fundamental miscarriage of justice nor demonstrated that he is actually innocent of the firearms charge of which he was convicted. The undersigned, therefore, will recommend dismissal of such claims on petitioner's alternative theory.
C. Criminal-History Calculation
Petitioner next contends that his sentence was based upon an improper criminal-history calculation because, he argues, he received a higher criminal history category for conduct that was part of the instant offenses. Respondent argues that this claim lacks merit and petitioner's reliance upon § 4A1.2(d), "Definitions and Instructions for Computing Criminal History," is misplaced because petitioner's criminal history calculation and his sentence were pursuant to U.S.S.G. § 4A1.1(d).
According to plaintiff, the search and seizure which led to the criminal action challenged herein was based upon a search warrant and arrest by state and local law enforcement agencies which also led to his conviction and sentence in state court. That state conviction, he contends, included the same alleged methamphetamine conspiracy that the government charged in this court. Petitioner argues that sentencing a criminal defendant to the wrong guideline or the wrong criminal history category constitutes plain error. United States v. Ford, 88 F.3d 1350, 1356 (4th Cir. 1996).
In substance, petitioner argues that his federal sentence was improperly enhanced two points. Defendant's sentence was enhanced pursuant to Section 4A1.11(d). At the time of commission of the offenses challenged herein, petitioner was serving a period of five years' supervised probation resulting from May 10, 1993, convictions in Macon County, North Carolina, for drug-related crimes. Section 4A1.1(d) (1993) provided, as follows:
[A]dd 2 points if the defendant committed the instant offense while under any criminal justice sentence, including probation, parole, supervised release, imprisonment, work release, or escape status.Id. The commentary (note 4) to such section provided, as follows:
[T]wo points are added if the defendant committed any part of the instant offense (i.e. any relevant conduct) while under any criminal justice sentence, including probation, parole, supervised release . . .Id. Inasmuch as the "Sentencing Commission plainly understands the concept of double counting, and expressly forbids it where it is not intended," see United States v. Williams, 954 F.2d 204, 206, 208 (4th Cir. 1992), the court was required to apply the plain, unambiguous language of the Guidelines. United States v. Goldbaum, 879 F.2d 811, 813 (10th Cir. 1989). It appearing that trial counsel did, in fact, raise the issue prior to sentencing (see Objection 9 to first PSI), no claim for ineffective assistance can be maintained. Finding no actionable issue under the fifth amendment for subsequent jeopardy, the undersigned will recommend dismissal of such claim.
D. Joinder
Petitioner next contends that due to prejudicial joinder, he did not receive a fair trial. In substance, petitioner claims that his defense was prejudiced by joinder of offenses and codefendants. He further argues that the charge to the jury did not distinguish the two conspiracies and that the instructions were confusing. In addition, he contends that appellate counsel was ineffective for failing to seek severance from codefendants and to appeal the instructions. For relief, petitioner seeks reversal of his conviction, arguing that it was tainted by the joint trial.
Joinder and severance are governed by Rules 8 and 14 of the Federal Rules of Criminal Procedure, and review of their propriety requires a two-step analysis. The first step is to determine whether the defendants were joined in accordance with Rule 8(b). Upon a finding that they were properly joined, analysis proceeds to the second step — to determine whether such joinder, while satisfying Rule 8(b), was nevertheless prejudicial under Rule 14 when weighed against judicial efficiency.
The first step is to determine whether a defendant was properly joined with codefendants in the bill of indictment. Generally, two or more defendants may be charged in the same bill of indictment by a grand jury if the indictment alleges that the defendants participated either in the same act or transaction or in the same series of acts or transactions. Joinder of defendants does not hinge upon whether or not there is proof of participation in a conspiracy; all that is required is that the government allege that defendants participated in the same acts or transactions. It is not necessary that every defendant engage in every underlying transaction in order for the charges to be properly joined,Blumenthal v. United States, 332 U.S. 539 (1947); and failure to name all defendants in each count of the indictment is not fatal to joinder,United States v. Santoni, 585 F.2d 667, 673 (4th Cir. 1978), cert. denied, 440 U.S. 910 (1979). Inasmuch as the indictment alleges that defendants participated either in the same act or same series or acts, it is clear that joinder of defendants in the same indictment was proper.
Even where Rule 8 joinder is proper, allegations that joinder prejudiced a defendant by preventing a fair trial must be weighed against the court's interest in judicial economy. The issue under Rule 14 is whether prejudice due to joinder would likely infringe a defendant's sixth-amendment right to a fair trial. United States v. Boffa, 513 F. Supp. 444 (D.C. Del. 1980). Petitioner argues here that there was a lack of evidence to support two conspiracies and that the jury may have misinterpreted the instructions. The Court of Appeals for the Fourth Circuit has already held that evidence was proffered in this case that established "two separate conspiracies to manufacture and distribute methamphetamine," Keener, supra, at 1-2, and that petitioner was involved in both. Id. It would be folly to argue that it was constitutional error for appellate counsel to fail to raise such an argument, inasmuch as appellate "counsel need not raise every colorable claim," but may strategically elect to bring "the most promising issues for appeal." Bell v. Jarvis, 198 F.3d 432, 443 (4th Cir. 1999). In light of the specific findings of the appellate court in this case, such issue would have afforded petitioner no relief. Finally, mere speculation on the part of a petitioner that the jury did not heed or was confused by instructions is insufficient to sustain a claim of unfair trial. United States v. Silva, 745 F.2d 840, 844 (4th Cir. 1984). See also United States v. De La Cruz Bellinger, 422 F.2d 723 (9th Cir.), cert. denied, 398 U.S. 942 (1970);cf. United States v. McClure, 734 F.2d 484 (10th Cir. 1984). A petit jury, equipped with appropriate instructions and a clear presentation of evidence, can be expected to protect a defendant's sixth-amendment right to a fair trial. There is nothing in the record before the court which suggests that petitioner had anything less than a fair trial. Finally, it appears that petitioner's sentence was concurrent on all three drug-related convictions, including the conspiracies, thereby lessening any possible prejudice. For the foregoing reasons, the undersigned will recommend dismissal of this claim.
Joint trials further the court's compelling interest in the efficient administration of justice and the general policy that persons who are indicted together should be tried together. United States v. Mandel, 591 F.2d 1347 (4th Cir.), reh'g en banc, 602 F.2d 653, reh'g denied, 609 F.2d 1076 (1979), cert. denied, 445 U.S. 961 (1980).
E. Evidentiary Hearing
Fourth, and finally, petitioner, through counsel, requests an evidentiary hearing in accordance with Rule 8 of the Rules Governing Habeas Corpus Proceedings, inasmuch as his petition involves claims of ineffective assistance of counsel. The court has reviewed the merits of the alleged instances of ineffective assistance of counsel, both at trial and on appeal, and has found them to be absolutely without merit, as discussed above.
It is now clear from the record that petitioner is not entitled to any relief other than resentencing based on the error of proof involving the type of controlled substance. Raines v. United States, 423 F.2d 526, 529 (4th Cir. 1970). The undersigned, therefore, will recommend that the request for an evidentiary hearing be dismissed.
The undersigned, however, does take exception with respondent's argument that petitioner was not entitled to appointment of counsel in this matter. Respondent relies upon Raines for the proposition that a Section 2255 petitioner is only entitled to appointment of counsel where an evidentiary hearing is allowed.
The court notes that the respondent advanced such argument after this court's August 1, 2000, decision to offer petitioner appointed counsel. Respondent argued 16 days later that "Defendant is not entitled to an evidentiary hearing — nor is Defendant entitled to appointment of counsel," Docket Entry 6, at 11, thus challenging this court's August 1, 2000 Order.
In addition to providing a right to appointed counsel in the event of an evidentiary hearing, Rule 8(c) specifically provides for discretionary appointment of counsel, as follows:
These rules do not limit the appointment of counsel under 18 U.S.C. § 3006A at any stage of the proceeding if the interests of justice so provide.
Section 3006A(g) provides
Discretionary appointments — Any person . . . seeking relief under section . . . 2255 of title 28 . . . may be furnished representation pursuant to the plan whenever the United States magistrate or the Court determines that the interests of justice so require and such person is financially unable to obtain representation . . .
Respondent has offered no arguments which would support a finding of abuse of discretion. In Merritt v. Faulkner, 697 F.2d 761 (7th Cir. 1983), the Court of Appeals for the Seventh Circuit created standards for determining whether a court should exercise discretion and appoint counsel in Section 2255 proceedings. Those standards included the following:
(1) whether the merits of the claim are colorable;
(2) the ability of the indigent to investigate crucial facts;
(3) whether the nature of the evidence indicates that the truth will more likely be exposed where both sides are represented by counsel;
(4) capability of the indigent person to present the case; and
(5) complexity of the legal issues raised by the complaint.
Id., at 764. At the point in time that the respondent properly confessed error, it appeared to this court that petitioner had presented colorable and most complex claims and had little or no ability to investigate his claims or to hire someone to investigate his claims on his behalf. Based on the face of the petition, it appeared that issues remained for decision that could, potentially, impact a substantial liberty interest and/or result in an evidentiary hearing. See Docket Entry 5, Order of August 1, 2000.
In the end, justice would not have been well served had this court declined to exercise its discretion to appoint counsel in this matter (and in codefendants' cases, where similar error was confessed). When the final cards were played, no evidentiary hearing was necessary because the remaining claims could be disposed of as a matter of law. In no small part, this result was reached due to the excellent job of briefing by both sides.
The interests of justice are well served where appointment of counsel not only furthers the protection of substantial liberty interests under the sixth amendment, but, as a bonus, results in streamlined litigation, avoiding greater expense and judicial delay. This court stands by its decision to exercise its discretion under Rule 8(c) and Section 3006A to appoint counsel to represent petitioner in this matter.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that with the exception of resentencing based upon the type of controlled substance, which was previously allowed, respondent's Motion for Summary Judgment be ALLOWED and petitioner's remaining claims be DISMISSED WITH PREJUDICE for the reasons discussed above.
IT IS FURTHER RECOMMENDED that petitioner's request for an evidentiary hearing be DENIED.
The parties are hereby advised that, pursuant to 28, United States Code, Section 636(b)(1)(C), written objections to the findings of fact, conclusions of law, and recommendation contained herein must be filed within ten (10) days of service of same. Failure to file objections to this Memorandum and Recommendation with the district court will preclude the parties from raising such objections on appeal. Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474 U.S. 1111 (1986); United States v. Schronce, 727 F.2d 91 (4th Cir.), cert. denied, 467 U.S. 1208 (1984).
The Clerk of this court is instructed to send a courtesy copy of this Memorandum and Recommendation to Honorable Charles H. Haden II, United States District Judge, and the United States Probation Office, attention Betsy Ervin.