Opinion
No. 4:11-CR-87-FL-1 No. 4:15-CV-207-FL
07-17-2017
TORRICK JOHNTRELLE RODGERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
ORDER
This matter is before the court on petitioner's motion to vacate, set aside, or correct sentence, made pursuant to 28 U.S.C. § 2255 (DE 149) and his motion to supplement (DE 160). Also before the court is the government's motion to dismiss, made pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 154). The issues raised are ripe for ruling. For the reasons that follow, this court denies petitioner's motion to vacate and motion to supplement and grants the government's motion to dismiss.
BACKGROUND
On April 18, 2012, petitioner pleaded guilty to the following: conspiracy to distribute and possess with the intent to distribute five kilograms or more of cocaine and 280 grams or more of cocaine base (crack), in violation of 21 U.S.C. § 846 (Count One); distribution of a quantity of cocaine base (crack), in violation of 21 U.S.C. § 841(a)(1) (Count Two); distribution of a quantity of cocaine base (crack) and aiding and abetting, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 (Count Three); and possession with intent to distribute 28 grams or more of cocaine base (crack) and a quantity of cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count Four).
On November 7, 2013, this court sentenced petitioner to 211 months imprisonment on each of Counts One through Four, with the terms to be served concurrently. Petitioner appealed, and the Fourth Circuit Court of Appeals affirmed this court's judgment. See United States v. Rodgers, 595 F. App'x 196 (4th Cir. 2014) (per curiam). Petitioner did not file a petition for certiorari with the Supreme Court.
On December 28, 2015, petitioner filed the instant motion to vacate pursuant to 28 U.S.C. § 2255, arguing that: 1) this court erred by denying his motion to suppress; 2) in light of the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015), he no longer qualifies as a career offender; 3) his guilty plea was not knowingly and voluntarily entered; 4) trial counsel provided ineffective assistance of counsel by advising him to enter into a guilty plea; 5) appellate counsel provided ineffective assistance of counsel by failing to raise certain arguments and file a petition for rehearing en banc; 6) trial counsel provided ineffective assistance of counsel at the suppression hearing; and 7) this court erred in calculating his advisory guideline range.
In its motion to dismiss, filed on February 16, 2016, the government argues that petitioner's § 2255 motion should be dismissed for failure to state a claim upon which relief can be granted. On March 14, 2016, petitioner filed a motion to supplement, seeking to add a claim of prosecutorial misconduct. On June 14, 2017, the government filed a response to petitioner's supplement. On July 3, 2017, petitioner filed a reply.
On July 7, 2016, this case was stayed pending the Supreme Court's final decision in Beckles v. United States, No. 15-8544. On March 14, 2017, this court lifted the stay. Petitioner was directed to show cause, within thirty days, why his § 2255 motion should not be dismissed in light of Beckles v. United States, 137 S. Ct. 886 (2017).
COURT'S DISCUSSION
A. Standard of Review
A petitioner seeking relief pursuant to 28 U.S.C. § 2255 must show that "the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto." Id. § 2255(b). B. Analysis
1. Motion to Vacate
a. Petitioner's first and third claims were previously litigated.
In his first claim, petitioner contends that this court erred by denying his motion to suppress. Mot. Vacate Mem. (DE 149-1) at 8-13. Petitioner argues in his third claim that his guilty plea was not knowingly and voluntarily entered. Id. at 16.
Absent a change in the law, a petitioner cannot relitigate in collateral proceedings an issue that has been rejected on direct appeal. See United States v. Roane, 378 F.3d 382, 396 n.7 (4th Cir. 2004) (citing Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th Cir. 1976) (explaining that a defendant cannot relitigate issues previously rejected on direct appeal)).
Petitioner's first claim was raised on direct appeal, and the Fourth Circuit Court of Appeals declined to review this court's denial of his motion to suppress because petitioner did not enter a conditional guilty plea. See Rodgers, 595 F. App'x at 197 n.1. Petitioner's third issue was also raised on direct appeal and rejected. See id. at 198-200. Petitioner has failed to cite a change in the law that warrants reconsideration of these claims. Consequently, petitioner's first and third claims must be dismissed.
b. Petitioner's second claim fails on the merits.
Petitioner argues in his second claim that, in light of the Supreme Court's decision in Johnson, he no longer qualifies as a career offender under U.S.S.G. § 4B1.1. Mot. Vacate Mem. (DE 194-1) at 14-15. Petitioner concludes that he is entitled to resentencing without the career offender enhancement. Id. at 15.
Prior to Johnson, an offense was deemed a "violent felony" under the Armed Career Criminal Act's ("ACCA") so-called "residual clause" if it was punishable by greater than one year's imprisonment and "involve[d] conduct that present[ed] a serious potential risk of physical injury to another." 18 U.S.C. § 924(e)(2)(B). In Johnson, the Supreme Court struck down the residual clause of the ACCA as unconstitutionally vague. 135 S. Ct. at 2563.
In this case, petitioner relies on Johnson's reasoning to challenge application of a similar clause found in U.S.S.G. § 4B1.2(a) at the time of his sentencing. The Supreme Court recently held, however, that "the Guidelines are not amenable to a vagueness challenge." Beckles v. United States, 137 S. Ct. 886, 894 (2017). Thus, petitioner's status as a career offender is not subject to constitutional challenge, and this claim must be dismissed.
The definition of "crime of violence," revised August 1, 2016, no longer contains a residual clause.
c. Petitioner fails to state a claim in his fourth, fifth, and six claims.
Petitioner has raised three claims of ineffective assistance of counsel. See Mot. Vacate (DE-149); Mot. Vacate Mem. (DE 149-1). In order to establish ineffective assistance of counsel, a petitioner must satisfy a two-pronged test. See Strickland v. Washington, 466 U.S. 668, 687 (1984). Under the first prong, a petitioner must show that his counsel's representation "fell below an objective standard of reasonableness." Id. at 688. The court must be "highly deferential" to counsel's performance and must make every effort to "eliminate the distorting effects of hindsight." Id. at 689. Therefore, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. The second prong requires a petitioner to show that he was prejudiced by the ineffective assistance by showing "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. This court will apply the two-pronged Strickland test to each of petitioner's claims.
i. Failed to ensure there was a right to appeal
In his fourth claim, petitioner alleges that his trial counsel provided ineffective assistance by failing to ensure he had the right to appeal this court's suppression order before recommending he plead guilty. Mot. Vacate Mem. (DE 149-1) at 16.
Strickland's two-part test applies to challenges of guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58 (1985). To establish prejudice in the guilty plea context, a petitioner 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. Id. at 59. Moreover, the petitioner must "convince the court that a decision to reject to the plea bargain would have been rational under the circumstances." Padilla v. Kentucky, 559 U.S. 356, 372 (2010).
This claim fails under both prongs of the Strickland standard. It fails under the performance prong for lack of specificity because petitioner fails to allege why his trial counsel's failure to ensure that he could appeal this court's suppression order constitutes constitutionally deficient performance. See United States v. Dyess, 730 F.3d 354, 359 (4th Cir. 2013) ("[A] habeas petition is expected to state facts that point to a real possibility of constitutional error.") (citation omitted)). This claim fails under the prejudice prong because petitioner has failed to allege that but for his counsel's alleged errors, he would not have pleaded guilty and would have insisted on going to trial. See Hill, 474 U.S. at 59. Accordingly, petitioner's fourth claim must be dismissed.
ii. Failed to raise arguments and file a petition
Petitioner alleges in his fifth claim that his appellate counsel provided ineffective assistance by failing to raise the meritorious arguments he requested. Mot. Vacate Mem. (DE 149-1) at 16-20. Petitioner further alleges that his appellate counsel erred by failing to file a petition for en banc review. Id. at 5.
Petitioner's first argument fails because an appellate attorney need not address every conceivable issue. In fact, the court "must accord appellate counsel the 'presumption that he decided which issues were most likely to afford relief on appeal.'" Bell v. Jarvis, 236 F.3d 149, 164 (4th Cir. 2000) (quoting Pruett v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)). Moreover, as a general proposition, it is only when the ignored issues are "clearly stronger" than those presented that there is ineffective assistance of counsel for failing to pursue claims on appeal. United States v. Mason, 774 F.3d 824, 829 (4th Cir. 2014). Petitioner has made no representation suggesting that the issues he wanted presented were "clearly stronger" than those raised by appellate counsel.
Appellate counsel raised the following issues: petitioner's plea was not knowing and voluntary and the trial court erred in denying petitioner's motion to suppress. See Rodgers, 595 F. App'x at 197. --------
Petitioner's second argument fails because there is no constitutional right to counsel for discretionary appeals. See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987); United States v. Williamson, 706 F.3d 405, 416 (4th Cir. 2013). Thus, there is no cognizable claim for ineffective assistance of counsel for failing to request en banc review. See Pennsylvania, 481 U.S. at 555; Williamson, 706 F.3d at 416; see also Thomas v. United States, Nos. RDB-14-2085, RDB-10-0491, 2016 WL 5372316, at *9 (D. Md. Sept. 26, 2016) (holding that the failure to seek rehearing en banc cannot serve as the basis for a claim of ineffective assistance of counsel). Consequently, petitioner's fifth claim must be dismissed.
iii. Failed to call witnesses
In his sixth claim, petitioner alleges that his trial counsel provided ineffective assistance at his suppression hearing. Mot. Vacate Mem. (DE 149-1) at 17-19. In particular, petitioner contends that his trial counsel failed to call both "Massey" and a handwriting expert to impeach Officer Adams. Id. at 17-18.
This court, having fully reviewed the transcript from the November 15, 2011, suppression hearing before former U.S. Magistrate Judge William A. Webb, finds that petitioner's counsel provided reasonable assistance to petitioner. The record reveals that Massey was the Waste Industries employee who collected petitioner's trash, at the behest of law enforcement, on the collection dates of November 24, 2010 and December 3, 2010. See Nov. 15, 2011 Tr. (DE 29) at 9:7-9; 13:20-23; 14:13-15:16; 18:19-24. Because Massey's version of events came in at the suppression hearing through Investigator Ken Adams's testimony and reports, calling Massey to testify would have been cumulative. Id. at 10:10-38:3. With respect to petitioner's claim that a handwriting expert was necessary and would have led to the suppression of the evidence against him, petitioner has failed to allege that his attorney had reason to know this would have been the case.
In sum, petitioner fails to suggest that his attorney's performance at the suppression hearing constituted constitutionally deficient performance. See Dyess, 730 F.3d at 364 ("[W]e give counsel wide latitude in determining which witnesses to call as part of their trial strategy."). Because petitioner's claim fails under the performance prong, this court need not address the prejudice prong. See Strickland, 466 U.S. at 697 ("[T]here is no reason for a court deciding an ineffective assistance claim to . . . address both components of the inquiry if the [petitioner] makes an insufficient showing on one."). Accordingly, petitioner's sixth claim will be dismissed.
d. Petitioner's seventh claim is not cognizable on collateral review.
In his seventh and final claim, petitioner argues that this court incorrectly calculated his advisory guideline range. Mot. Vacate Mem. (DE 149-1) at 23-26. This claim fails because a challenge to the advisory Guidelines range is not cognizable on collateral review. See United States v. Pregent, 190 F.3d 279, 283-84 (4th Cir. 1999) ("Barring extraordinary circumstances . . . an error in the application of the Sentencing Guidelines cannot be raised in a § 2255 proceeding."); see also Sun Bear v. United States, 644 F.3d 700, 704 (8th Cir. 2011) (recognizing that § 2255 proceedings allow petitioners to challenge errors that result in the "complete miscarriage of justice," not "ordinary questions of guideline interpretation" (internal quotation marks omitted)). The Fourth Circuit Court of Appeals similarly held that a defendant's challenge to his career offender designation based on the intervening decision in United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), is not cognizable on collateral review. See United States v. Foote, 784 F.3d 931, 932 (4th Cir. 2015) (holding that "we are hesitant to undermine the judicial system's interest in finality to classify a sentencing guidelines error as a fundamental defect"). Consequently, petitioner's seventh claim must be dismissed.
2. Motion to Supplement
In the next motion before the court, petitioner moves to supplement his § 2255 motion with a sworn affidavit from Julius C. Harris. See Harris Aff. (DE 160-1). In his affidavit, Harris states that the illegal substances found on his person on August 19, 2009, were obtained from sources other than petitioner, and petitioner did not provide him with drugs to sell. Id. at 1. According to petitioner, Harris's affidavit supports a claim that his conviction was the result of official police corruption. Mot. Supp. (DE 160) at 1. Petitioner is attempting to raise a claim of prosecutorial misconduct.
In order for a prosecutor's conduct to qualify as prosecutorial misconduct, the conduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." United States v. Scheetz, 293 F.3d 175, 185 (4th Cir. 2002) (quoting United States v. Morsley, 64 F.3d 907, 913 (4th Cir. 1995)). Reversible prosecutorial misconduct has two components: 1) defendant must show that the prosecutor's remarks or conduct were improper; and 2) defendant must show that such remarks or conduct prejudicially affected his substantial rights such that he was deprived of a fair trial. Id. (citing United States v. Mitchell, 1 F.3d 235, 240 (4th Cir.1993)). When assessing prejudice, the court must consider the following factors:
(1) the degree to which the prosecutor's remarks have a tendency to mislead the jury and to prejudice the accused; (2) whether the remarks were isolated or extensive; (3) absent the remarks, the strength of competent proof introduced to establish the guilt of the accused; (4) whether the comments were deliberately placed before the jury to divert attention to extraneous matters; (5) whether the prosecutor's remarks were invited by improper conduct of defense counsel; and (6) whether curative instructions were given to the jury.United States v. Wilson, 624 F.3d 640, 656-57 (4th Cir. 2010) (citing Scheetz, 293 F.3d at 186).
Petitioner's claim must fail for at least two reasons. First, petitioner has failed to state a claim of prosecutorial misconduct because he has failed to suggest how he was deprived of a fair trial. As discussed above, supra B.1.a., petitioner knowingly and voluntarily pleaded guilty. Second, to the extent that petitioner is challenging the drug weight attributable to him, his claim must fail because his designation as a career offender drove his advisory guideline imprisonment range, not drug weight. See Nov. 7, 2013 Tr. (DE 96) at 27:23-25 (noting that 262 months is at "the bottom of the career offender guideline range"). Because supplementation would be futile, petitioner's motion to supplement must be denied. C. Certificate of Appealability
A certificate of appealability may issue only upon a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The petitioner must demonstrate that reasonable jurists could debate whether the issues presented should have been decided differently or that they are adequate to deserve encouragement to proceed further. Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). After reviewing the claims presented on collateral review in light of the applicable standard, the court finds that a certificate of appealability is not warranted.
CONCLUSION
Based on the foregoing, this court DENIES petitioner's motion to vacate (DE 149) and motion to supplement (DE 160) and GRANTS the government's motion to dismiss (DE 154). This court also DENIES a certificate of appealability. The clerk is DIRECTED to close this case.
SO ORDERED, this the 17th day of July, 2017.
/s/_________
LOUISE W. FLANAGAN
United States District Judge