Opinion
Case No. C-2-02-050
March 27, 2003
OPINION AND ORDER
Petitioner, Porter Mitchell, a federal prisoner, brings this action to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This mater is before the Court on the instant petition, the respondent's answer, petitioner's reply, and the exhibits of the parties.
Petitioner challenges the guilty plea he entered, his attorneys' failure to get him abetter plea bargain, his attorneys' advice that he had no grounds to withdraw from his guilty plea, and his attorneys' failure to raise various issues at sentencing and on appeal.
I. FACTS
The facts of this case are summarized by the United States Court of Appeals for the Sixth Circuit as follows:
Between March 25, 1998 and October 9, 1998, Porter Mitchell made ten cocaine sales to undercover ATF Agent Dan Ozbolt. At the first sale on March 25, Porter sold Ozbolt 12.1 grams of cocaine base. On April 10, Porter sold Ozbolt 23.7 grams. Ozbolt and Porter arranged to conduct the third cocaine base deal on May 27. That day, the two met near a McDonald's restaurant, then traveled in Ozbolt's car a short distance to a Sun TV store. A blue Chrysler was parked in the Sun TV lot, and Vincent Mitchell, someone known as Dre, and another individual were standing outside of it. Dre walked up to Porter and handed him a white plastic bag later said to contain a computer part. Porter took the bag, gestured or spoke to the others, and then suggested that he and Ozbolt go into the store. Porter took the bag to the store's clerk and said he needed to exchange the part. Porter told Ozbolt something to the effect that his uncle "left it on the mantle" and indicated that Vincent was "going to go get it." Ozbolt and Porter went back outside and stood outside the door. At some point, Ozbolt asked if the others could be trusted, and Porter responded that one guy was his uncle. The blue Chrysler pulled into the parking lot. Vincent got out, walked straight to Porter and Ozbolt, and handed Porter a bag containing 10.7 grams of cocaine base. As Vincent walked up, Porter said. "It was on the mantle, wasn't it." Porter then handed Ozbolt the drugs, and Vincent stood there for a while, looked around, and walked away.
Ozbolt bought 23 and 11.7 grams of cocaine base from Porter on June 4 and June 18, respectively. Ozbolt did not see Vincent on either occasion. On June 19, however, a day when Ozbolt met with Porter three times and conducted two transactions. Ozbolt saw Vincent again. During the first rendezvous with Porter, Ozbolt bought 62.6 grams of cocaine base. Porter mentioned that he had some cocaine powder and an AK-47 assault rifle for sale, and the two discussed meeting again later. When they did, Ozbolt saw Vincent in the passenger's seat of Porter's car, where Vincent remained as Porter and Ozbolt stood outside and walked around the vehicle as they discussed the drug and gun sales. Porter told Ozbolt that he could not get the gun at the time, but that he could obtain the cocaine powder in about an hour. Porter returned later with 12.6 grams of cocaine powder, this time accompanied by someone other than Vincent.
Porter sold Ozbolt 101.2 grams of cocaine base on July 15 and 210.4 grains on October 6. On October 9, Porter sold Ozbolt 131.5 grams of cocaine base. Other agents arrested Porter shortly thereafter. Vincent went to Porter's initial court appearance. Ozbolt recognized Vincent from seeing him with Porter on May 27 and June 19. Ozbolt ascertained where Vincent lived, obtained an arrest warrant for him, and placed him under arrest. After receiving Miranda warnings, Vincent admitted being at the Sun TV, but denied any possession of cocaine base. He recalled being approached on the street by Porter about accompanying him to a Sun TV "to do a white guy that he just met." Vincent also indicated that he had ridden with Porter when Porter "served people," which is a street phrase for selling cocaine base to others.
Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
II. PROCEDURAL HISTORY
On November 12, 1998, the federal grand jury for the Southern District of Ohio returned an eleven count indictment charging petitioner and co-defendant Vincent Mitchell with conspiracy to distribute and distribution of crack cocaine. Petitioner was charged with one count of conspiracy to distribute over 50 grams of crack cocaine in violation of 21 U.S.C. § 846 and 841; nine counts of distribution of over 5 grams of crack cocaine, in violation of 21 U.S.C. § 841, and one count of distribution of cocaine, in violation of 21 U.S.C. § 841. Doc. #1. While represented by counsel, and pursuant to a plea agreement, on February 18, 1999, petitioner pleaded guilty to distribution of over 50 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1). Docs. #41, 48. On June 21, 1999, after a sentencing hearing, petitioner was sentenced to a term of 210 months imprisonment. See Sentencing Transcript. Petitioner filed a timely appeal of his conviction to the United States Court of Appeals for the Sixth Circuit, Doc. #79, and on May 17, 2001, the Sixth Circuit dismissed the appeal. Doc. #89.On January 16, 2002, petitioner filed the instant action to vacate, set aside or correct his sentence and seeking to withdraw his guilty plea pursuant to 28 U.S.C. § 2255. Petitioner alleges that he is in the custody of respondent in violation of the Constitution of the United States based upon the following grounds:
1. Ineffective assistance of counsel.
2. United States breached the plea agreement.
3. Failure of the United States to "reveal the deal" and disclose fully all exculpa[tory] materials under Brady v. Maryland, [ 373 U.S. 83 (1963)].
It is the position of the respondent that all of these claims are without merit.
I. CLAIM ONE
In his first claim for relief, petitioner Mitchell asserts that he was denied the effective assistance of trial and appellate counsel.
A prisoner may challenge the entry of a guilty plea on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two-part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir. 1988). In order to obtain relief, a prisoner who is challenging the entry of his guilty plea on the basis of counsel ineffectiveness must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
The second, or "prejudice" requirement on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial.Hill, 474 U.S. at 59; Sparks, 852 at 884.
Mitchell asserts that trial counsel failed properly to investigate the involvement of an alleged confidential informant in order to pursue an entrapment defense. According to petitioner, a confidential informant solicited petitioner's participation in drug transactions with Agent Ozbolt through the use of friendship, promises of money and drugs, and by providing petitioner with a car. Mitchell states that, as a recovering addict, he was particularly vulnerable to this confidential informant. He also asserts that his attorney failed to interview friends and family who would have testified in his defense and regarding his drug addiction. Additionally, Mitchell asserts that his attorney failed to obtain exculpatory evidence, i.e., testimony of a confidential informant, from the governments for use in his defense.
Nothing in the record supports any of these claims. A confidential informant introduced petitioner to Agent Ozbolt, but all of the drug transactions alleged took place between petitioner and Agent Ozbolt. Regardless, federal habeas corpus review of claims raised by a petitioner who has entered a guilty plea is limited to "the nature of the advice and the voluntariness of the plea, not the existence as such of an antecedent constitutional infirmity." Tollett v. Henderson, 411 U.S. 258, 266 (1973).
A guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense charged, he may not thereafter raise independent claims related to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.Id. at 267. "[A] guilty plea is an admission of all the elements of a formal criminal charge." McCarthy v. United States, 394 U.S. 459, 466 (1969). Because petitioner has entered a guilty plea, he may not now raise in federal habeas corpus, a claim that his attorney was ineffective for failing to obtain exculpatory evidence from the government, or failing to proceed with the defense of entrapment. United States v. Broce, 488 U.S. 563, 566 (1989).
Petitioner Mitchell next asserts that his plea was coerced by trial counsel, because his attorney advised him that if he proceeded to trial he would
more than likely receive life without parole and accepting or rejecting the government's last plea would be the difference in seeing his children graduate from grade school or not seeing them outside of a prison visiting room for the rest of his life.Petition. He also asserts that his plea was not knowing, intelligent, or voluntary, because he was improperly advised by his attorney regarding his possible sentence. A plea may be rendered involuntary as a result of threats. Martin v. Kemp, 760 F.2d 1244, 1247-48 (11th Cir. 1985). To prove that his plea was not voluntary as a result of coercion, a criminal defendant must demonstrate that fear of the possible consequences of not pleading guilty destroyed his ability to balance "the advantages of proceeding to trial against those of pleading guilty." Jones v. Estelle, 584 F.2d 687, 690 (5th Cir. 1978). One court has held that a guilty plea was not coerced as a result of a trial judge's statement that the defendant would probably be found guilty on twenty counts. See Gano v. United States, 705 F.2d 1136, 1137-38 (9th Cir. 1983).
Here, Mitchell signed a plea agreement indicating that he understood that the minimum sentence was ten years imprisonment and the maximum penalty was "life imprisonment, a five-year term of supervised release, and a $4,000,000 fine." Doc. #41. The plea agreement also indicated that
Defendant Porter Mitchell is aware that his sentence will be imposed in accordance with the United States Sentencing Guidelines and Policy Statements. The defendant is further aware that the District Court has jurisdiction and authority to impose any sentence within the statutory maximum set forth for the offense to which the defendant pleads guilty. The defendant is aware that the Court has not yet determined a sentence. The defendant is also aware that any estimate of the probable sentencing range under the United States Sentencing Guidelines that the defendant may have received from the defendant's counsel, the United States, or the probation office, is a prediction, not a promise, and is not binding on the United States, the probation office, or the Court. The United States makes no promise or representation concerning what sentence the defendant will receive, and the defendant cannot withdraw the guilty plea based upon the actual sentence imposed.Id. Further, letters from trial counsel to petitioner dated February 2, 1999, and May 4, 1999, Exhibits A and B to petition, indicate that, contrary to petitioner's allegations, trial counsel properly advised petitioner regarding the possible sentence. In light of the foregoing, petitioner's allegation that he was not aware of the possible sentence that would be imposed pursuant to a guilty plea is not credible. Further, even accepting as true petitioner's allegation that trial counsel advised petitioner to plead guilty rather than proceed to trial, those facts would not constitute coercion so as to render the guilty plea invalid. Counsel have the obligation to give their clients their best professional judgment as to the likely consequences if they proceed to trial.
Mitchell asserts that the government breached the terms of the plea agreement because the prosecutor sought to enhance petitioner's sentence for possession of a firearm and for the total amount of cocaine or crack used in charges which had been dismissed pursuant to the plea agreement. The prosecutor must keep any promises he made in the plea agreement. Bordenkircher v. Hayes, 434 U.S. 357, 362 (1978). When a prisoner challenges his guilty plea on the basis that it was induced by an unkept promise, the court must determine whether the allegation, when viewed against the record of the plea hearing, is so palpably incredible, so patently frivolous or false, as to warrant summary dismissal. Blackledge v. Allison, 431 U.S. 63, 76 (1977). Again, in view of the plea agreement signed by petitioner, that expressly indicated the sentencing ramifications of the guilty plea, his allegations are not credible. The plea agreement further indicated:
No additional promises, agreements, or conditions have been made relative to this matter other than those expressly set forth herein, and none will be made unless in writing and signed by all parties.
Doc. #41. Also, the Court notes that petitioner never raised any of the issues presented in this motion to vacate sentence when given the opportunity to address the Court at his sentencing hearing:
COURT: Mr. Mitchell, do you wish to [be] heard before I impose sentence?
MR. MITCHELL I just would like to say I don't want to blame this on nobody but myself. Some of this, you know, could have been prevented. I could have been arrested way before all of this even took place. I told Mr. Ozbolt that I was the middle man, and I didn't want to deal with him in larger quantities of drugs, but it just didn't happen that way.
Me and my friend got shot by the person that I was buying the drugs from. I informed Ozbolt of that. Two or three days later he asked me for some more drugs, and I was arrested. They found a gun in my girlfriend's home and a gun in my car, and I am standing here about to get high time.Sentencing Transcript, at 40. In view of the foregoing, petitioner's claim is without merit.
Petitioner Mitchell asserts that his attorney never advised the prosecutor that petitioner was willing to cooperate in order to reduce his sentence. Again, this claim is unsupported by the record before this Court. In a letter dated February 2, 1999, trial counsel wrote petitioner and summarized the plea agreements that had been rejected by petitioner as of that date. The letter indicated the possible sentence faced with and without an agreement to cooperate. Trial counsel, in his letter, indicated that petitioner had, as of that time, rejected any agreement that included cooperation. Id. In a letter dated May 4, 1999, trial counsel again wrote petitioner and urged him to reconsider his refusal to cooperate with the government:
You have lots of information which could assist the feds in the prosecution of others. By cooperating, you can reduce your sentence. It would be necessary for you to be completely truthful.
When we discussed this matter, you seemed to believe that you could dictate the terms of cooperation concerning whether Ozbolt would be present, and what you would discuss. It is the government that controls the §§ K1.1 process. As the case agent, Ozbolt would surely be present. You would be obligated to discuss everything you know.
I again discussed with the government Vincent Mitchell's alleged involvement on May 27, 1998. I am told that the person who was first with you (Dre) returned a computer part to Sun TV at the time you met Ozbolt. I am further advised that only two persons left in the blue car to retrieve the dope, and your uncle returned and handed the dope to you. Dre then left with you.
I have absolutely no way of knowing what really happened on this day. What you have to ask yourself is this: Am I willing to cooperate with the government to reduce my sentence? If not, then read no further. If so, then you need to ask yourself a second question: Was my uncle involved in some fashion in this drug sale? If your uncle truly did not hand you the dope and was not involved, then you should not cooperate. The reason is that you will not be believed on this point, and the deal will fall apart. If after you search your soul, you conclude that you wish to cooperate, and this includes your uncle, then let me know immediately.
Exhibit B to Petition. In light of the foregoing, petitioner's allegations are not credible.
Mitchell asserts that his attorney failed to investigate or present to the court the fact that he played a minor or minimal role in the offense in order to seek a reduced sentence; however, the record reveals that petitioner signed a plea agreement that resolved the issue of his role in the crimes:
the parties agree pursuant to U.S.S.G. § 3B1.1 and § 3B1.2, that the Defendant's offense conduct does not warrant an adjustment for either an aggravating role nor a mitigating role. The parties further understand that this agreement is not binding on the Court and that the final determination of the appropriate role in this offense rests solely with the Court.
Doc. #41. Therefore, petitioner cannot establish that trial counsel was ineffective under either prong of Strickland for failing to raise the issue.
Mitchell asserts that his attorney failed to present to the Court any evidence regarding his sentencing manipulation defense and that counsel failed properly to argue against a two point sentence enhancement under U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. Again, the record before this Court indicates to the contrary. See Sentencing Transcript, June 21, 1999. Further, the United States Court of Appeals in its decision denying petitioner's direct appeal, held that petitioner's claim that investigating agents improperly manipulated his sentence was, in any event, without merit. Doc. #89. The Court thus concludes that this claim is also without merit.
Petitioner Mitchell complains that his attorney failed to object to testimony by Agent Ozbolt that
[petitioner] made a statement to BCI agents that during every contact he had with me where he sold me crack he was armed with a firearm.Sentencing Transcript, p. 19. Hearsay testimony is admissible for sentencing purposes. See U.S.S.G. 6A1.3; United States v. Miller, 910 F.2d 1321, 1327 (6th Cir. 1990), cert. denied, 498 U.S. 1094 (1991); United States v. Polselli, 747 F.2d 356, 358 (6th Cir. 1984), cert. denied, 469 U.S. 1196 (1985).
U.S.S.G. § 6A1.3 provides:
a) . . . In resolving any dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.
To demonstrate that the use of misinformation violated due process the defendant must show that the evidence was materially false and that the trial judge relied upon it. Collins v. Buckhoe, 493 F.2d 343 (6th Cir. 1974).United States v. Polselli, supra, 747 F.2d at 358. In light of other evidence regarding petitioner's possession of a firearm, such are not the circumstances here. Ozbolt testified that Mitchell had expressed an interest in obtaining firearms. On the day of petitioner's arrest, Ozbolt paid Mitchell $4,350 for 5 ounces of crack cocaine. Petitioner believed he was owed money from previous drug transactions, and Ozbolt agreed to pay off that debt by giving Mitchell two pistols. Id. at 9-16. In addition, firearms, ammunition, money and drugs were recovered from petitioner's home. Id. at 17-18. A .40 caliber pistol was found in petitioner's Cadillac, which had been used in all but one of the drug transactions. Id. at 18. Based upon the foregoing, petitioner has failed to establish the ineffective assistance of trial counsel based upon counsel's failure to object to the two point enhancement under U.S.S.G. § 2D1.1.(b)(1) for possession of a firearm.
Mitchell also complains that his attorney failed to present evidence at sentencing that he had on several occasions informed Ozbolt that petitioner wanted to introduce Ozbolt to the supplier, and that Ozbolt had declined. Petitioner does not indicate the significance of this issue, and the Court concludes that he has again failed to establish prejudice under the test set forth in Strickland from any failure by trial counsel in this respect.
Petitioner asserts that his attorney suffered a conflict of interest because he represented Willie Parsons, "when Parsons was cooperating against petitioner." Petition.
In order to successfully assert a claim of ineffective assistance of counsel based upon conflict of interest, a defendant who entered a guilty plea must establish: 1) that there was an actual conflict of interest, and 2) that the conflict adversely affected the voluntary nature of the guilty plea entered by the defendant.Thomas V. Holtz, 818 F.2d 476, 479 (6th Cir. 1987), citing Smith v. Bordenkircher, 671 F.2d 986 (6th Cir.), cert. denied, 459 U.S. 848 (1982). Prejudice may be presumed if an actual conflict of interest exists. Strickland, 466 U.S. at 692, quoting Curler v. Sullivan, 446 U.S. 335. In order to demonstrate that an actual conflict of interest existed, petitioner must point to specific instances in the record which suggest an actual conflict or impairment of his interests. Thomas v. Holtz, at 481, citing United States v. Mars, 701 F.2d 1321 (11th Cir.), cert. denied, 464 U.S. 991 (1983). Petitioner must "make a factual showing of inconsistent interests and must demonstrate that the attorney `made a choice between possible alternative courses of action, such as eliciting (or failing to elicit) evidence helpful to one client but harmful to the other. If he did not make such a choice, the conflict remained hypothetical.' There is no violation where the conflict is `irrelevant or merely hypothetical'; there must be an `actual significant conflict.'" Id. Petitioner has not met this standard.
Finally, Mitchell asserts that he was denied the effective assistance of trial counsel because his attorney told him he could not withdraw his guilty plea. Aside from petitioner's unsupported allegation, there is nothing in the record to support this claim. Moreover, petitioner has failed to tender any evidence of a "fair and just reason for requesting the withdrawal" as required by Rule 11(d)(2)(B), Fed.R.Crim.P. The Court notes that petitioner waited almost three years from the date of his guilty plea before raising this issue. The Court concludes that this claim is without merit.
Petitioner Mitchell asserts that he was denied the effective assistance of appellate counsel because his attorney was "belligerent towards petitioner when asked to assist him in amending and supplementing" the appellate brief, and because appellate counsel failed to assist petitioner in presenting any meaningful issue on appeal. Petition. Petitioner also asserts that appellate counsel's brief was "unreviewable, unappealable and frivolous," and that counsel should have raised on appeal the issue that his sentence was improperly enhanced pursuant to U.S.S.G. § 2D1.1 for possession of a firearm.
The Strickland test applies to appellate counsel. Burger v. Kemp, 483 U.S. 776 (1987). Counsel must provide reasonable professional judgment in presenting the appeal. Evitts v. Lucey, 469 U.S. 387, 396-97 (1085). "`[W]innowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (quoting Jones v. Barnes, 463 U.S. 745, 751-52 (1983)).
Again, petitioner's claim is completely unsupported by the record before this Court. In a letter dated October 12, 1999, appellate counsel wrote petitioner:
I regret that you are not happy with the brief I filed on your behalf. From the time I started working on your case, I have tried my best for you. You have refused to follow my advice, and have insisted on doing the case your way. You have been rude and unpleasant in person, on the phone and in your letters.
Despite your attitude, I have made every effort to get you a good result. I did not appeal the gun issue because I believe it to be a definite loser on appeal. Therefore, I thought it would detract from the rest of the brief.
What I suggest you do is to write a letter to the United States Court of Appeals for the Sixth Circuit, 100 East Fifth Street, Room 532, Cincinnati, Ohio 45202-3988, advise the Court that you are displeased with the brief and request the opportunity to file your own brief.
Hopefully, you can then make all the arguments which you feel are helpful to you, and cite all the recent cases. Please send me a copy of whatever your file.
Exhibit E to Petition. In a subsequent letter dated December 2, 1999, counsel wrote petitioner:
Enclosed please find the brief filed by the government and our reply brief. I received an order from the Sixth Circuit giving you until December 28, 1999, to file a supplemental brief. Good luck with your brief. Please send me a copy.
Exhibit I to Petitioner's Reply. Additionally, from review of the record, it does not appear that a claim alleging that petitioner's sentence had been improperly enhanced for possession of a firearm would have been meritorious. Under U.S.S.G. § 2D1.1(b)(1), the Court may impose a two-level increase to the base offense level for a person convicted of certain drug trafficking offenses "[i]f a dangerous weapon (including a firearm) was possessed" during the offense.
The commentary to § 2D1.1(b)(1) states that the enhancement "should be applied if the weapon was present, unless it is clearly improbable that the weapon was connected with the offense." U.S.S.G. § 2D1.1. cmt. n. 3. For the two-level enhancement to apply, the government must establish 1) the defendant actually or constructively possessed the weapon, and 2) such possession was during the commission of the offense. See United States v. Sanchez, 928 F.2d 1450, 1460 (6th Cir. 1991). Constructive possession is established if the defendant had "ownership, or dominion, or control over the [firearm] itself, or dominion over the premises where the [firearm] is located." Id. (internal quotations omitted). Once the government establishes possession, "a presumption arises that such possession was connected to the offense," and the burden shifts to the defendant to show that "it is clearly improbable that the weapon was connected to the offense." Id. In determining whether a defendant meets this burden, we consider factors including the proximity of the gun to the drugs, the type of gun used, whether the gun was loaded, and any alternative purpose offered to explain the gun's presence. See United States v. Hill, 79 F.3d 1477, 1486 (6th Cir. 1996).Donaldson v. United States, 24 Fed.Appx. 498, unpublished, 2001 WL 1631818 (6th Cir. Dec. 14, 2001). Constructive possession "exists when a person does not have actual possession but instead knowingly has the power and the intention at a given time to exercise dominion and control over an object, either directly or through others." United States v. Covert, 117 F.3d 940, 948 (6th Cir. 1997), citing United States v. Hill, 79 F.3d 1477, 1485-86 (6th Cir. 1996)). Based upon the evidence submitted at the sentencing hearing, Sentencing Transcript, the government clearly satisfied its burden of demonstrating that petitioner possessed a gun; petitioner failed to show that it was improbable that a firearm was connected to the offense. Petitioner has therefore failed to establish that appellate counsel was ineffective for failing to raise this claim on appeal.
For the reasons discussed, supra, petitioner's claims two and three are likewise without merit.
Based upon all of the foregoing, petitioner's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is hereby DISMISSED.