Tisdale v. U.S.

Full title: BRYAN E. TISDALE Petitioner/Defendant, v. UNITED STATES OF AMERICA…

Court: United States District Court, D. Kansas

Date published: Sep 22, 2004

Case No. 99-10016-01-WEB, 04-3136-WEB (D. Kan. Sep. 22, 2004)

Opinion

Case No. 99-10016-01-WEB, 04-3136-WEB.

September 22, 2004

MEMORANDUM AND ORDER

WESLEY BROWN, Senior District Judge

Petitioner brings this action under 28 U.S.C. § 2255 alleging his counsel was ineffective. The Court will afford a liberal construction to Petitioner's pro se motion. See United States v. Mora, 293 F.3d 1213, 1216 (10^th Cir. 2002). The Court has reviewed the transcripts of the suppression, plea and sentencing hearings, along with the briefing from the parties. In addition, the Court had an opportunity to observe the performance of Petitioner's counsel. See United States v. Brocksmith, 991 F.2d 1363, 1368 (7^th Cir. 1993).

I. STANDARD

Claims of ineffective assistance of counsel are governed by the Strickland test. "Under this test, a petitioner must show that "his trial counsel committed serious errors in light of prevailing professional norms and that there is a reasonable probability that the outcome would have been different had those errors not occurred." United States v. Mora, 293 F.3d 1213, 1217 (10^th Cir. 2002); United States v. Haddock, 12 F.3d 950, 955 (10^th Cir. 1993) (quoting Strickland v. Washington, 466 U.S. 668(1984)).

Additionally, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Bryan v. Mullin, 335 F.3d 1207, 1217 (10^th. Cir. 2003), (quoting Strickland at 689).

When assessing whether a petitioner is entitled to an evidentiary hearing on an ineffectiveness claim, the petitioner bears the burden of alleging facts which, if proved, would entitle the petitioner to relief. Hatch v. State of Okla., 58 F.3d 1447, 1457 (10^th Cir. 1995). Conclusory allegations will not warrant a hearing. Id.

II. ANALYSIS

The Petitioner pleaded guilty to Count 1 of the indictment charging Petitioner with possession with the intent to distribute crack cocaine in violation of Title 21 United States Code, Section 841(a)(1) and Title 18 United States Code, Section 2. Counts 2 and 3 of the indictment were dropped as part of the plea agreement. The conduct on Count 1 occurred on July 25^th, 1998. The evidence at the plea hearing established that Petitioner intentionally possessed with the intent to distribute 936.79 grams of crack cocaine at his home and in his car in Wichita, Kansas.

A. Alleged Errors at the Suppression Hearing.

Petitioner argues three issues, two of which have already been raised and denied at the suppression hearing and on direct appeal. United States v. Tisdale, 248 F.3d 964 (10^th Cir. 2001). Petitioner has merely recycled his arguments in this appeal for collateral relief. For two reasons the Court will not consider petitioner's contention that there was no probable cause for the warrant or that the District Court erred in refusing to suppress evidence. First, "Fourth Amendment violations are not reviewable in a § 2255 motion when the federal prisoner has had a full and fair opportunity to litigate the claim at trial and present issues on direct appeal." United States v. Cook, 997 F.2d 1312, 1317 (10^th Cir. 1993). Second, "[a]bsent an intervening change in the law of a circuit, issues disposed of on direct appeal generally will not be considered on collateral attack by a motion pursuant to § 2255." United States v. Prichard, 875 F.2d 789, 791 (10^th Cir. 1989). Petitioner has alleged no change in law which would further his arguments and justify renewed consideration.

Petitioner concomitantly argues that his counsel was ineffective for failing to call Yvonne Smith and Judge Owens as witnesses and to demonstrate that the search warrant was so facially invalid as to preclude the police from reasonably believing it to be valid.

1. Yvonne Smith's testimony

Petitioner contends that Yvonne Smith's testimony was important to show that police had knowledge that someone had attempted to rob the trunk of the Buick Regaland not the Nissan Maxima as stated in the police affidavit. Furthermore, the omission of this statement in the affidavit was sufficient to prevent application of the good faith exception.

The record shows that counsel attempted to locate Ms. Smith but was unable to do so. Suppression Hearing at 122. Counsel elected to call Officer Harris who interviewed Ms. Smith on the night of the incident. Officer Harris stated that Yvonne Smith told him in the interview that she heard petitioner say someone had been in the trunk of his Buick Regal. Suppression Hearing at 124.

The omission of Smith's statements from the affidavit was addressed on direct appeal. "As for Tisdale's arguments based on the omission of certain facts from Sergeant Allen's affidavit (ie. Smith's statements to Officer Harris. . . .), Tisdale has failed to demonstrate that these "omissions" were anything more that inadvertent." Tisdale, 248 F.3d at 974. Petitioner's contention that his counsel was ineffective for failing to call Yvonne Smith as a witness has no merit as he has not alleged that Ms. Smith would have testified any differently than Officer Harris.

2. Judge Owens as a witness

Petitioner next argues that his counsel was ineffective because he did not call Judge Owens as a witness to show that the Judge had abandoned his judicial role by issuing a warrant totally lacking indicia of probable cause. "The decision whether to call a witness rests within the sound discretion of trial counsel." Jackson v. Shanks, 143 F.3d 1313, 1320 (10^th Cir. 1998). When asked if he was going to call the Judge, counsel stated "No, I do not. I think that this is a determination that could be made by the Court upon reviewing the circumstances of the case and the evidence of the four corners of the affidavit." Suppression Hearing at 5. This falls within the acceptable boundaries of discretion.

Petitioner's conclusory statement that Judge Owens abandoned his judicial role is not supported by the record. At the suppression hearing, the government examined Officer Allen who helped write and later presented the affidavit for the search warrant to Judge Owens. The testimony showed that the Judge read the affidavit, listened to a brief synopsis of the situation from Officer Allen and signed the warrant. Suppression Hearing at 32-33. Moreover, petitioner has alleged no facts to support his assertion and does not allege that Judge Owens' testimony would be any different from that of Officer Allen's. Petitioner's argument is without merit because counsel's failure to call Judge Owens as a witness cannot be said to breach the professional norms and even if it did, there is nothing to suggest that his testimony would have had a reasonable probability of altering the outcome.

3. The search warrant so facially deficient no officer would believe it to be valid.

Petitioner asserts that his counsel was ineffective because he failed to demonstrate that the search warrant was so facially deficient that the police officers could not reasonably believe it to be valid. The standard for evaluating this issue "is confined to the objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal despite the magistrate authorization, the reviewing court must examine the text of the warrant and the affidavit to ascertain whether agents might have reasonably presumed it to be valid." United States v. McKneely, 6 F.3d 1447, 1454 (10^th. Cir. 1993); United States v. Coral-Coral, 899 F.2d 927, 932 (10^th Cir. 1990) quoting United States v. Leon, 468 U.S. 897, 923 (1984).

Counsel raised this argument at the suppression hearing. The warrant and the affidavit were both admitted into evidence. Suppression Hearing at 9. Moreover, petitioner's counsel called five witnesses, four of whom were police officers involved with the crime scene and/or the application for the search warrant. At the conclusion of the hearing, this Court found, "that no reasonably well trained officer would have known the search was illegal despite the authorization of the warrant." Suppression Hearing at 137. Petitioner states in a conclusory manner that counsel was ineffective because he failed to persuade the Court yet he fails to state what more counsel could have done. Counsel's actions at the suppression hearing cannot be said to have breached professional norms as Strickland requires.

B. Apprendi issue

1. Counsel's alleged failure to raise Apprendi claim

Petitioner next argues that neither the indictment nor the guilty plea state a specific quantity of cocaine. Petitioner contends that this violates Apprendi because the quantity of drugs found at the plea hearing increased the maximum penalty allowed under Section 841(b)(1)and his counsel's failure to object at sentencing and on direct appeal constituted ineffective assistance of counsel. Petitioner argues that had his counsel made such an objection that his sentence would be no more than 20 years.

Apprendi v. New Jersey, 530 U.S. 466 (2000), was decided on June 26, 2000 and it applied retroactively to all cases pending on direct review or not yet final United States v. Lujan, 268 F.3d 965, 967 (10^th Cir. 2001); United States v. Jones, 235 F.3d 1231 (10^th Cir. 2000) quoting Griffith v. Kentucky, 479 U.S. 314, 328 (1987). Because Petitioner's direct appeal was pending when Apprendi was decided, counsel could have but failed to argue this on appeal. Counsel's failure to raise the Apprendi issue at sentencing is without merit because "[c]ounsel's assistance is not ineffective simply because counsel fails to base its decisions on laws that might be passed in the future." United States v. Gonzalex-Lerma, 71 F.3d 1537, 1542 (10^th Cir. 1995). Therefore, this court will only address counsel's failure to raise the Apprendi issue on direct appeal.

"Thus, in analyzing an appellate ineffectiveness claim based upon the failure to raise an issue on appeal, `we look to the merits of the omitted issue,' Neil v. Gibson, 278 F.3d 1044, 1057 (10^th Cir. 2001) generally in relation to the other arguments counsel did pursue. If the omitted issue is so plainly meritorious that it would have been unreasonable to winnow it out even from an otherwise strong appeal, its omission may directly establish deficient performance, if the omitted issue has merit but is not so compelling, the case for deficient performance is more complicated, requiring an assessment of the issue relative to the rest of the appeal, and deferential consideration must be given to any professional judgment involved in it omission; of course, if the issue is meritless, its omission will not constitute deficient performance." Cargle v. Mullin, 317 F.3d 1196, 1202 (10^th Cir. 2003), "We review Apprendi challenges to an indictment's omission of drug quantity for plain error where no constitutional objection was raised below." United States v. Lott, 310 F.3d 1231, 1240 (10^th Cir. 2002), see United States v. Cotton, 535 U.S. 625, 631 (2002). Under the plain error test in Rule 52(b) of the Rules of Criminal Procedure, an appellate court can correct an error not raised at the trial level unless 1) there is an error, 2) that is plain, and 3) that affects substantial rights. Johnson v. United States, 520 U.S. 461, 466-467 (1997). If all three of these conditions are met, an appellate court may use its discretion to recognize a forfeited objection to an error but only if 4) the error seriously affect[s] the fairness, integrity or public reputation of judicial proceedings." Johnson 520 U.S. at 466, quoting United States v. Olano, 507 U.S. 725, 732 (1993).

The Supreme Court held in Cotton that the omission of the quantity of drugs from a federal indictment that enhances the penalties under § 841(b), while in violation of Apprendi, does not constitute reversible plain error when the evidence is overwhelming and essentially uncontroverted to the extent that it does not affect the fairness or integrity of the judicial proceeding. Cotton, 535 U.S. at 633 (quoting Johnson at 470).

"By entering a plea of guilty, the accused is not simply stating that he did the discrete acts described in the indictment; he is admitting guilt of a substantive crime." United States v. Cockerham, 237 F.3d 1179, 1182 (2001) quoting United States v. Broce, 488 U.S. 563, 570 (1983). At the plea hearing, petitioner twice affirmatively acknowledged that the amount of cocaine he possessed was 936.79 grams and he was informed of enhanced penalty provisions based on that amount. Change of Plea at 5, 7. Petitioner's actions constitute uncontroverted evidence of the drug quantity; therefore, had counsel raised petitioner's Apprendi issue on direct appeal, it would have been reviewed for plain error and like Cotton, petitioner's sentence would have been affirmed. Cf. United States v. Valencia, 299 F.3d 1068, 1076-1077 (9^th Cir. 2002) (Defendant pled guilty but there was no drug quantity in the indictment or stated in plea colloquy in violation of Apprendi; however, it was not reversible plain error because the overwhelming evidence in the presentence report did not affect fairness of judicial proceeding), See also Cotton, 535 U.S. at 633.

Petitioner's claim is without merit because it does not pass the second prong of the Strickland test as there is no reasonable probability that the outcome would have been different had the Apprendi claim been raised on direct appeal.

2. Collateral relief for Apprendi claim

Petitioner also argues that he is entitled to a reduced sentence because of the Apprendi violation. Although the Government does not raise the issue of procedural bar, this Court "may raise and enforce it sua sponte, if doing so furthers `the interests of judicial efficiency, conservation of scarce judicial resources and orderly and prompt administration of justice.'" United States v. Allen, 16 F.3d 377, 378 (10^th. Cir. 1994), quoting Hines v. United States, 971 F.2d 506, 509 (10^th. Cir. 1992).

"When a defendant fails to raise a claim on direct appeal, he is barred from later pursuing that claim in a later § 2255 proceeding, absent a showing of cause and actual prejudice or a fundamental miscarriage of justice." Mora, 293 F.3d at 1216. When the Apprendi error does not affect petitioner's substantial rights enough to constitute reversible plain error, there can be no actual prejudice under the higher standard required by collateral review. United States v. Bailey, 286 F.3d 1219, 1223 (10^th Cir. 2002). Petitioner's acknowledgment of 936.79 grams of cocaine at the change of plea hearing constitutes uncontroverted evidence precluding reversal under the plain error doctrine. Because the Apprendi violation is not reversible plain error it also fails the cause and prejudice test; therefore, the Apprendi violation is procedurally barred and the court will not consider it.

C. Counsel's failure to object to allegedly erroneous criminal history calculation

Petitioner next claims his counsel was ineffective for failing to bring to the court's attention at sentencing and on appeal the application of note 11 of the U.S.S.G. § 4A1.2, which according to petitioner, entitles him to a lessor criminal history score. Petitioner's assertion is groundless.

While it is true his counsel did not raise the issue at the original sentencing, he did on direct appeal and the 10^th Circuit used the plain error test and rejected petitioner's arguments. Tisdale, 248 F.3d at 964. Upon remand for re-sentencing, petitioner's counsel argued for the application of note 11 and made a proffer of evidence to be entered into the record; however, this Court rejected petitioner's arguments. Resentencing Proceeding at 6, 17. Petitioner's counsel again raised the issue on direct appeal where it was reviewed de novo and denied on the merits. United States v. Tisdale, 59 Fed. Appx. 295 (10^th Cir. 2003). Although missing an opportunity to raise this issue in the initial sentencing, petitioner's counsel raised it at re-sentencing which allowed for de novo review on appeal. Petitioner's ineffective assistance claim is groundless, and the Court will not consider it further.

D. Criminal History Calculation

Petitioner again asks the Court to consider the applicability of note 11 to his case. This issue was addressed at resentencing and on direct appeal and petitioner does not cite any new law that would justify reconsideration. Tisdale, 59 Fed. Appx. 295, See also Prichard, 875 F.2d at 791. Therefore, the Court will not address this issue.

E. Government's alleged failure to prove intent

In petitioner's traverse, he alleges that he did not plea guilty of intent to distribute but merely of possession. The Government did not raise the issue of procedural bar and this Court raises it sua sponte. See Allen, 16 F.3d at 378.

Petitioner did not make this claim on direct appeal; therefore, petitioner must meet the cause and prejudice test. See Mora, 293 F.3d at 1216. A guilty plea is an admission that the accused committed the crime charged against him. North Carolina v. Alford, 400 U.S. 25, 32 (1970). The indictment stated the offense with the words `intent to distribute' and the indictment was read to petitioner and when asked if he was admitting the indictment was true, he responded in the affirmative. Change of Plea at 4. Petitioner has not alleged any facts to demonstrate a fundamental miscarriage of justice or any actual prejudice; therefore, this claim is procedurally barred and the Court will not consider it further.

E. Motion to Amend

Petitioner has requested leave of the court to file an amended motion under Rule 15 of the Federal Rules of Civil Procedure. Petitioner's conviction became final May 5^th, 2003; therefore, petitioner's motion to amend falls outside the one year statute of limitations set by the Antiterrorism and Effective Death Penalty Act (AEDPA) in § 2255. "Under Fed.R.Civ.P. 15(c), a district court may in its discretion, permit an amendment which clarifies or amplifies a claim or theory in a timely filed § 2255 petition after AEDPA's one year statute of limitations has expired." United States v. Espinoza-Saenz, 235 F.3d 501, 504 (10^th Cir. 2000). Petitioner's motion to amend is denied on two grounds.

First, "Rule 15(c) applies to allow amendment to § 2255 motions as long as the petition itself was timely filed and the petitioner does not seek to add an entirely new claim or new theory of relief." Id. Petitioner is disputing the finding made by this Court that he possessed a firearm in relation to his crime which increased his offense level by two points. Petitioner correctly states that he did not stipulate to this specific fact during the plea or sentencing hearings. While this may have violated Blakely, petitioner is not entitled to amend his petition because a Blakely is a new theory of relief.

Petitioner raised several ineffective assistance of counsel claims, an Apprendi claim and one claim of failure to prove an element of the offense. Petitioner's Blakely claim regarding the two point firearm enhancement is unrelated to any other claim in his current petition. Courts have narrowly construed the relatedness requirement to amend § 2255 petitions. "Because a majority of amendments to § 2255 motions raise issues which relate to defendant's trial and sentencing, to allow amendment under that broad umbrella would be tantamount to judicial rescission of AEDPA's statute of limitations period." Id. Petitioner is attempting to introduce a new legal theory to challenge his sentence; therefore, the Court denies petitioner's request to amend his petition.

Alternatively, if petitioner's Blakely claim is related to the original petition, this Court would deny the motion to amend because Blakely is not retroactively available to cases already final on direct review. "The grant or denial of leave to amend under FRCP 15(a), is a matter within the discretion of the trial court; however, since Rule 15(a) requires that leave to amend be `freely given when justice so requires' the trial court generally must justify its denial of such a motion." Sooner Products Co. v. McBride, 708 F.2d 510, 512 (10^th Cir. 1983); Forman v. Davis, 371 U.S. 178, 182 (1962). "One of the reasons which will justify the denial of leave to amend is futility of amendment." Id.

This circuit has held that the Teague test governs the retroactivity of new rules of constitutional law raised by initial habeas petitions. Browning v. United States, 241 F.3d 1262, 1264 (10^th Cir. 2001). With two exceptions, new rules of constitutional law are not retroactive to cases already final on direct review. Teague v. Lane, 489 U.S. 288 (1989). The two exceptions are for certain kinds of new procedural and substantive rules which may be applied retroactively.

The Supreme Court held that rules that divide decision making power between the judge and the jury are procedural and new procedural rules only apply retroactively if they belong to a small set of "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the proceeding." Schriro v. Summerlin, 124 S. Ct. 2519, 2522 (2004) quoting Teague, 489 U.S. at 311. The Blakely decision is a procedural rule because it allocates greater fact finding responsibility to the jury. Washington v. Blakely, 124 S. Ct. 2531 (2004) (holding that a judge cannot impose a sentence greater than the guidelines set unless "the jury finds all the facts which the law makes essential to the punishment."). It is unlikely that Blakely is a watershed rule of criminal procedure as the Supreme Court stated in Schriro the same day it decided Blakely that "this class of rules is extremely narrow and it is unlikely that any . . . has yet to emerge." Schriro, 124 S. Ct. at 2522, quoting Tyler v. Cain, 535 U.S. 656, 667 (2001).

It follows that Blakely is not applicable on collateral review. In a similar reading of Schriro, the 11^th Circuit stated, "[t]he Supreme Court has strongly implied that Blakely is not to be applied retroactively." In re Dean, 375 F.3d 1287, 1290 (11^th Cir. 2004) (Holding that Blakely is not retroactively available to successive § 2255 petitions). This Court holds Blakely not to be retroactively applicable for cases already final on direct review; therefore, it would be futile to allow petitioner to amend his § 2255 motion to include it.

IT IS ORDERED FOR THE REASONS SET FORTH ABOVE that Defendant's motion to amend his 28 U.S.C. Section 2255 petition under Rule 15 of the Federal Rules of Civil Procedure (Doc. 109) is DENIED, and

IT IS ORDERED FOR THE REASONS SET FORTH ABOVE that Defendant's motion for relief under the provisions of 28 U.S.C. Section 2255 (Doc. 101) is DENIED, and

IT IS FURTHER ORDERED that a Certificate of Appealability under the provisions of 28 U.S.C. Section 2253 should be and hereby is DENIED.

SO ORDERED.