Opinion
Civil Action No. 03-3754, Criminal Action No. 99-719.
July 2, 2004
MEMORANDUM
Before the court is petitioner Allen Powell's request for writ of habeas corpus, pursuant to 28 U.S.C. § 2255. On November 9, 1999, a grand jury charged petitioner with one count of possession of a firearm by a convicted felon, in violation of 18 U.S.C. § 922 (g) (1). On May 8, 2000, at the change of plea hearing, petitioner pleaded guilty to the charged indictment and admitted to three prior felony convictions. Following a plea colloquy, in which the court addressed the petitioner in an open proceeding, explained to the petitioner the nature of the charges against him and the consequences of the plea, informed the petitioner of the rights he was surrendering, and determined that the plea was voluntary and not the result of force, threats, or promises, the court accepted the plea. Hearing Tr., 9-19. The written plea agreement signed by petitioner stated that petitioner "has three prior convictions set forth in the Notice of Defendant's Prior Convictions for Enhanced Sentencing," that "the [petitioner's] offense level is 33, pursuant to U.S.S.G. § 4B1.4, because he is an armed career criminal," and that the petitioner had discussed the plea agreement with his attorney and is satisfied with his attorney's advice. Plea Agreement, 3-5. On July 22, 2002, petitioner was sentenced to a 192-month term of imprisonment followed by three years of supervised release.
Petitioner's 922(g) conviction and his three prior felony convictions triggered the application of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e). The ACCA raises the penalty for possession of a firearm by a felon from a maximum of 10 years in prison to a mandatory minimum of 15 years if the felon has three prior "violent felony" convictions or serious drug offenses." See 18 U.S.C. § 924(e).
The petitioner was initially sentenced to a 192-month term of imprisonment and a five year term of supervised release. The Third Circuit vacated petitioner's sentence and remanded the case for re-sentencing on the term of supervised release and clarification on the denial of a downward departure. U.S. v. Powell, 269 F.3d 175 (3d Cir. 2001). On remand, petitioner's sentence of a five year supervised release was reduced to three years, reflecting the terms of the plea agreement between the government and the petitioner. The Court also explained that the downward departure motion was denied because the conditions of the petitioner's confinement were not so unusual, extraordinary, or atypical as to warrant a downward departure. The length of imprisonment was unaffected by the remand.
Petitioner's pro se habeas petition alleges that he was denied effective assistance of counsel, that this Court was without jurisdiction to impose his sentence, and that the Pre-Sentence Investigation Report (PSI), prepared by the Probation Office, was adopted by this Court in violation of the petitioner's due process rights. For the reasons that follow the petition will be denied.
I. ANALYSIS
A. Ineffective Assistance of Counsel.
Petitioner's first basis for habeas relief is ineffective assistance of counsel. A petitioner making an ineffective assistance of counsel claim must identify the acts or omissions by his counsel that are alleged to not have been the result of reasonable professional judgement. Strickland v. Washington, 466 U.S. 687, 690 (1984). The petitioner alleges his attorney, Eric Vos, Esq., was ineffective because he: (1) prematurely advised him to enter into a guilty plea; (2) advised petitioner to agree to three prior violent felony convictions or serious drug offenses as part of the guilty plea, thereby subjecting him to a sentencing enhancement for which he should not have otherwise been eligible; (3) lacked sufficient knowledge of petitioner's criminal background; and (4) should have objected to this Court's jurisdiction to adjudicate petitioner's case.
1. Guilty Plea.
When a defendant enters into a guilty plea upon counsel's advice, the test for determining the validity of the guilty plea is "whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant." Hill v. Lockhart, 474 U.S. 52, 56 (1989). "In light of the fact that voluntariness of a criminal defendant's plea depends on the effectiveness of counsel, the Supreme Court has held that the Strickland two-part test also applies to ineffective assistance claims arising out of the plea process." Leftwich v. U.S., No. 00-4703, 2000 U.S. Dist. LEXIS 26416, at * 5 (E.D. Pa. Nov. 8, 2002) (Robreno, J.), citing Hill 474 U.S. at 57. In Strickland, the Supreme Court directed the courts to apply a two part test. 466 U.S. at 688. One, petitioner must show that counsel's performance fell below an objective standard of reasonableness. Two, petitioner must show that the deficient performance prejudiced him. Id. at 687-688. In order to prevail the petitioner must satisfy both prongs. In setting forth the prejudice standard, the Supreme Court has emphasized the "fundamental interest in the finality of guilty pleas." Hill, 474 U.S. at 58. Therefore, the prejudice prong requires that the petitioner show a reasonable probability that, but for the counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Parry v. Rosemayer, 64 F.3d 110, 118 (3d Cir. 1995).
The claimed error of counsel is advising the petitioner to enter a guilty plea. It is not necessary to determine whether counsel's advice fell below an objective standard of reasonableness because petitioner's allegations are insufficient to satisfy the Strickland prejudice inquiry. Petitioner makes the bald assertion that he would have chosen to go to trial if his counsel had not advised him to plead guilty. "A [petitioner] alleging ineffective assistance of counsel in a guilty plea context must make more than a bare allegation that but for counsel's error he would have not pleaded guilty and gone to trial." Parry, 64 F.3d at 118. Because petitioner has failed to allege any prejudice, least the kind of prejudice necessary to support a challenge to the validity of a guilty plea, the ineffective assistance claim will fail.
2. Sentencing Enhancement.
Petitioner argues that Mr. Vos was ineffective for advising him to stipulate to three prior convictions as part of the plea agreement. Petitioner does not challenge the validity of his prior convictions, but rather asserts that they were not "violent felonies" or "serious drug offenses," and therefore it was erroneous for Mr. Vos to stipulate to them at the guilty plea stage.
To the extent that petitioner argues that counsel was ineffective for failing to object to the stipulation on Apprendi v. New Jersey grounds, the argument will fail. Although the grand jury indictment failed to allege the predicate convictions used in the sentencing enhancement, Apprendi does not require the fact of a criminal defendant's prior conviction to be charged in the indictment. 530 U.S. 466, 490 (2000); See Also Powell v. U.S., 109 F.Supp. 2d. 381, 383 (E.D. Pa. 2000). Additionally, not only would Mr. Vos's objection have lacked merit, but he in fact raised the exact objection prior to sentencing.
This argument will fail because petitioner cannot show that he was prejudiced by the stipulation. The Government's notice of Defendant's Prior Convictions lists petitioner's three prior felony convictions used to enhance his sentence. Petitioner was convicted of possession with the intent to distribute a controlled substance and two robberies, both of which involved the threat or use of force. All three convictions qualify as "violent felonies" or "serious drug offenses" for purposes of petitioner's sentencing enhancement. Therefore, even if counsel's performance was defective, petitioner cannot show the necessary prejudice to support an ineffective assistance of counsel claim.
A "violent felony" is defined as "any crime punishable by imprisonment for a term exceeding one year . . . that has as an element the use, attempted use, or threatened use of physical force against the person of another." 18 U.S.C. § 924(e) (2) (B). A "serious drug offense" is defined as "an offense under State law, involving manufacturing, distribution, or possessing with intent to manufacture or distribute, a controlled substance for which a maximum term of imprisonment of ten years of more is prescribed by law." 18 U.S.C. § 924(e)(2)(A)(ii).
3. Criminal History and Jurisdiction Claims.
Petitioner's claim that Mr. Vos failed to adequately research his criminal history is frivolous. Additionally, counsel's alleged failure to raise a jurisdictional challenge is meritless. For the reasons set forth in part B below, jurisdiction was proper in the Eastern District of Pennsylvania. Counsel is not ineffective for failing to raise a claim that lacks obvious merit. See U.S. v. Sanders, 165 F.3d 248, 253 (3d Cir. 1999).
Petitioner cites from the Sentencing Hearing in which Mr. Vos stated "I didn't get all the criminal history, but now when I look at it all, it shows that there are no crimes of violence." Sentencing Hearing Tr., at pp. 8 (Aug. 11, 2000). Petitioner has taken this comment out of context, as it was made in response to a question posed by the Court, and in support of the Court rendering a sentence at the low end of the guideline range. Counsel was not suggestitg that he did not have knowledge of petitioner's previous violent felony convictions, but rather that the individual crimes were not violent enough to warrant a 210 month incarceration as requested by the government.
B. Procedurally Defaulted Claims.
Petitioner's claim's that this Court was without jurisdiction to impose his sentence and that the Court violated his due process rights are procedurally defaulted because he failed to raise them prior to filing his habeas petition. Wainright v. Sykes, 433 U.S. 72, 84 (1977). When a habeas petitioner has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in the habeas proceedings only if "the [petitioner] can demonstrate either `cause' or `prejudice' or that he is `actually innocent.'" Bousley v. U.S., 523 U.S. 614, 622 (1998) (citations omitted). Petitioner must therefore show cause excusing his procedural default and actual prejudice resulting from his errors. Frady, 456 U.S. at 168. "Attorney error such as failure to recognize the factual or legal grounds for a claim or even failure to raise a recognized claim, short of ineffective assistance of counsel, is not `cause' for a procedural default." Murry v. Carrier, 477 U.S. 478, 486-87 (1986). Even if the petitioner can show cause, he must also demonstrate a reasonable probability that his case would have resulted differently if the issues had been raised on appeal. Strickland, 466 U.S. at 694-695.
The same "cause and actual prejudice" standard that applies to procedurally defaulted claims in habeas petitions pursuant to 28 U.S.C. § 2254 also applies to procedurally defaulted claims in habeas petitions pursuant to 28 U.S.C. § 2255. Reed v. Farley, 512 U.S. 339, 354 n. 13 (1994) (citing U.S. v. Frady, 456 U.S. 152, 167-168 (1982)); see also Cristin v. Brennan, 281 F.3d 404, 416 n. 14 (3d Cir. 2002) (citing Frady, 456 U.S. at 167).
1. Jurisdiction.
Petitioner's claim that this court was without jurisdiction to impose his sentence has no merit, therefore petitioner cannot show actual prejudice. This Court had subject-matter jurisdiction over this criminal action pursuant to 18 U.S.C. § 3231. This Court has personal jurisdiction over the petitioner because a court acquires personal jurisdiction over a criminal defendant when he appears before the court, whether voluntarily or involuntarily. See U.S. v. Quatermain, No. 78-308, 1982 U.S. Dist. LEXIS 14996, at *2 (E.D. Pa. Oct. 6, 1982) (holding that personal jurisdiction exists if the defendant is physically present before the court, regardless of how that presence was secured). Moreover, the Constitution provides that a criminal trial against an individual shall be held in the state where the crime was committed. U.S. Const. art. III, 2, cl. 3, U.S. Const. amend. VI. Venue is therefore proper in the Eastern District of Pennsylvania because the indictment alleges that the petitioner committed the crime for which he has been convicted in the Eastern District of Pennsylvania.
The petitioner alternatively argues that the underlying statute upon which petitioner's conviction is based, 18 U.S.C. § 922(g)(1), is unconstitutional. This argument also lacks merit. The Third Circuit has held that 18 U.S.C. § 922(g)(1) is a valid exercise of Congressional authority under the Commerce Clause.U.S. v. Singletary, 268 F.3d 196, 197 (3d Cir. 2001) (holding that 922(g) is a is a proper exercise of Congress' regulatory power).
2. Due Process.
Petitioner's last basis for habeas relief alleges that the Court violated his due process rights in declaring that he was a career offender without conducting an independent investigation regarding the accuracy of the PSI report. This claim is procedurally defaulted because petitioner failed to raise it on direct review. Petitioner cannot demonstrate prejudice because his argument is without merit. As discussed previously, petitioner's 922(g) conviction and three prior felony convictions qualified petitioner as a career offender for purposes of a sentencing enhancement. Petitioner alleges that "credible factual disputes" as to the nature of his previous convictions existed at the time the report was adopted. The record contradicts this contention. Regardless, petitioner cannot show that any prejudice resulted from the adoption of the PSI findings by this Court.
II. CONCLUSION
For the foregoing reasons, petitioner's request for writ of habeas corpus, pursuant to 28 U.S.C. § 2255, will be denied.