Opinion
Criminal Case No. 07-cr-00175-CMA
12-28-2012
UNITED STATES OF AMERICA, Plaintiff-Respondent, v. ANDRE STANLEY, a/k/a "Sincere," a/k/a "Cere," Defendant-Movant.
Judge Christine M. Arguello
ORDER DENYING MOVANT'S 28 U.S.C. § 2255 MOTION
This matter is before the court on Movant Andre Stanley's 28 U.S.C. § 2255 Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. # 734).
I. BACKGROUND
On April 24, 2007, Movant was indicted on one count for distribution and possession with intent to distribute more than 5 grams of cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B). (Doc. # 1.) On August 23, 2007, the Government filed a superseding indictment in which it charged Movant with seven additional substantive counts, a count seeking forfeiture of property, and added a codefendant. (Doc. # 63.) A second superseding indictment was filed on November 28, 2007, adding a second codefendant, but making no changes as to the charges against Movant. (Doc. # 107.) On March 12, 2008, a third and final superseding indictment was filed, adding two additional counts against Movant. (Doc. # 195.) The substantive counts filed against Movant as of the third superseding indictment were:
The forfeiture count was voluntarily dismissed post-trial by motion of the Government. (Doc. ## 652; 658.)
• Use and carrying of a firearm during and in relation to a drug trafficking crime, in violation of 18 U.S.C. §924(c)(1)(A)—Count One;(Doc. # 195.)
• Conspiracy to violate 18 U.S.C. § 924(c), in violation of 18 U.S.C. § 924(o)—Count Five;
• Possession with intent to distribute more than 5 grams of "crack" cocaine, in violation of 21 U.S.C. § 841(a)(1)(A) and (b)(1)(B)—Counts Two, Six, and Nine;
• Conspiracy to possess with intent to distribute "crack" cocaine, in violation of 21 U.S.C. § 846—Count Eleven; and
• Use of a communication facility in the commission of a felony drug offense, in violation of 21 U.S.C. § 843(b)—Counts Three, Four, Seven, and Ten.
Count Five was voluntarily dismissed by motion of the Government. (Doc. ## 417; 444.)
At trial, the jury convicted Movant on Counts Three, Four, Six, Seven, Nine and Ten, and acquitted Movant on Counts One, Two and Eleven. (Doc. # 599.) The Court subsequently sentenced Movant to 48 months of imprisonment on each of Counts Three, Four, Seven and Ten, and 120 months of imprisonment on each of Counts Six and Nine, with the sentences to be served concurrently. (Doc. # 645.) Movant filed an appeal of the judgment, asserting that his right to a speedy trial had been violated. (Doc. # 630.) Movant's appeal was denied by the Tenth Circuit, United States v. Stanley, 396 F. App'x 482 (10th Cir. 2010), as was his petition for writ of certiorari, Stanley v. United States, 131 S. Ct. 1704 (2011). Movant filed the instant motion to vacate the sentence pursuant to 28 U.S.C. § 2255 on March 21, 2012. (Doc. # 734.) The Government responded on April 23, 2012, and Movant replied on June 28, 2012 (Doc. ## 739; 742).
Movant filed a pro se brief alleging vindictive prosecution that was not considered by the court of appeals because Movant was, at the time, represented by counsel. See United States v. Stanley, 396 F. Appx. 482 (10th Cir. 2010).
II. DISCUSSION
In the instant motion, Movant alleges: (1) that the United States engaged in vindictive prosecution by adding charges in the superseding indictments against Movant in response to Movant's assertion of his constitutional rights to jury trial, speedy trial and for making allegations of prosecutorial misconduct; (2) that trial counsel was ineffective by failing to file a motion raising this vindictive prosecution claim; and (3) that appellate counsel was ineffective by failing to raise the vindictive prosecution claim on direct appeal.
Movant's three claims are inherently interdependent. The "failure to raise an issue either at trial or on direct appeal imposes a procedural bar to habeas review," United States v. Barajas-Diaz, 313 F.3d 1242, 1245 (10th Cir. 2002), except when the movant raises a claim of ineffective assistance of counsel. See Massaro v. United States, 538 U.S. 500, 508 (2003) (noting that a § 2255 motion is preferable to direct appeal for deciding claims of ineffective assistance of counsel and that "failure to raise an ineffective assistance of counsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255."). Movant failed to properly raise the vindictive prosecution claim at trial or on direct appeal, and therefore it is, standing alone, barred from review at this time. However, as discussed below, the Court will evaluate the vindictive prosecution claim as part of Movant's ineffective assistance of counsel claims.
The Supreme Court has set forth a two prong test to assess whether a particular counsel's representation was constitutionally ineffective. See Strickland v. Washington, 466 U.S. 668 (1984). First, a movant asserting an ineffective assistance of counsel claim must show that the attorney's representation fell below "an objective standard of reasonableness." Id. at 687-88. This is no easy proposition, as "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 690. Second, the movant must identify acts or omissions made by the attorney that resulted in prejudice to the movant. Id. A movant is prejudiced when "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.
The Supreme Court has sanctioned the practice of disposing of ineffective assistance of counsel claims based on insufficient prejudice. See Strickland, 446 U.S. at 697 ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
In his motion, Movant alleges that his trial and appellate counsel were ineffective by dint of their failure to raise the vindictive prosecution claim now raised here. For Movant to demonstrate that he was prejudiced by his counsels' failure to raise the vindictive prosecution claim, Movant must demonstrate that it is reasonably probable that the underlying vindictive prosecution claim would have been successful. Thus, although the underlying vindictive prosecution claim itself is procedurally barred, the Court must evaluate the claim's merits within the framework of the ineffective assistance of counsel claims.
As discussed below, the Court finds that Movant's vindictive prosecution claim is not meritorious. Therefore, even assuming arguendo that either his trial counsel or appellate counsel's representation fell below an objective standard of reasonableness, Movant has failed to demonstrate that he was prejudiced by their failure to raise a nonmeritorious claim. A.
VINDICTIVE PROSECUTION
Movant argues that the Government vindictively increased the charges against him in superseding indictments, and acted vindictively by seeking the 21 U.S.C. § 851 enhancement in response to Movant exercising his constitutional rights to a jury trial and a speedy trial.
The Supreme Court has recognized that punishing "a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort, and for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is 'patently unconstitutional.'" Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973)). On the other hand, "so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion." Id. at 364. Furthermore, because "[t]he imposition of punishment is the very purpose of virtually all criminal proceedings, the presence of a punitive motivation [...] does not provide an adequate basis for distinguishing" permissible prosecutorial action from impermissible vindictive prosecutorial action. United States v. Goodwin, 457 U.S. 368, 372-73 (1982).
In order to succeed on a vindictive prosecution claim, Movant has the burden of establishing, by a preponderance of the evidence, either "(1) actual vindictiveness, or (2) a realistic likelihood of vindictiveness which will give rise to a presumption of vindictiveness." United States v. Sarracino, 340 F.3d 1148, 1177 (10th Cir. 2003) (quoting United States v. Lampley, 127 F.3d 1231, 1245 (10th Cir. 1997)); see United States v. Raymer, 941 F.2d 1031, 1040 (10th Cir. 1991). Stated another way, "[i]n determining whether the Government has engaged in prosecutorial vindictiveness," the Court "must determine whether the prosecution engaged in conduct that would not have occurred but for the prosecution's desire to punish the defendant for exercising a specific legal right." Id. (citing United States v. Contreras, 108 F.3d 1255, 1262 (10th Cir. 1997)).
The Court first considers whether Movant has shown actual vindictiveness. To establish actual vindictiveness, Movant must demonstrate: "(1) the prosecutor acted with genuine animus towards the [movant], and (2) the [movant] would not have been prosecuted but for that animus." United States v. Wilson, 262 F.3d 305, 314 (4th Cir. 2001). A finding of actual vindictiveness "requires direct evidence the [movant] would not have been prosecuted [but for the prosecutor's animus towards the movant], such as evidence of a statement by the prosecutor, which is available only in a rare case," United States v. Johnson, 221 F.3d 83, 94 (2d Cir. 2000), or "evidence that the prosecutor has some personal stake in deterring the [movant's] exercise of his constitutional rights." United States v. Wade, 266 F.3d 574, 585 (6th Cir. 2001).
Actual vindictiveness may not be proven "[m]erely by the appearance of vindictive motives," Sarracino, 340 F.3d at 1177-78, and "evidence of suspicious timing does not indicate prosecutorial animus," United States v. Falcon, 347 F.3d 1000, 1005 (7th Cir. 2003). "There is no vindictiveness as long as the prosecutor's decision is based upon the normal factors ordinarily considered in determining what course to pursue, rather than upon genuine ;2658;2658animus against the [movant] for an improper reason or in retaliation for exercise of legal or constitutional rights. In the absence of procedural unfairness to the [movant], the Government may ;2689;2689increase ;2690;2690charges or make them more precise based upon new information or further evaluation of the case." U.S. v. Raymer, 941 F.2d at 1042 (internal quotation marks and citations omitted). "A charging decision does not levy an improper 'penalty' unless it results solely from the defendant's exercise of a protected legal right, rather than the prosecutor's normal assessment of the societal interest in prosecution." Bordenkircher, 434 U.S. at 364. The exercise of prosecutorial discretion is presumption lawful, and can only be overcome with "exceptionally clear proof." McCleskey v. Kemp, 481 U.S. 279, 280 (1987).
In the present motion, Movant has not pointed to any direct evidence demonstrating a "genuine animus" by the prosecutor, nor is there any evidence that the prosecutor had a personal stake in deterring Movant's exercise of his constitutional rights. Movant's claim of vindictive prosecution rests primarily in his assertion that the prosecutor "continuously sought superseding indictments with additional offenses against Movant every time he asserted his right to a speedy trial and made claims of Government misconduct." (Doc. # 734 at 6.) Movant additionally asserts that the Government's decision to file a 21 U.S.C. § 851 enhancement, requiring the imposition of a life term of imprisonment, is evidence of actual vindictiveness. Id. However, both of these assertions fall short of being "exceptionally clear proof," or objective evidence that the superseding indictments were filed due to genuine animus by the prosecutor. Rather, instead of evidence that the charges were filed solely in response to Movant's exercise of a protected legal right, the record shows that the Government had anticipated filing superseding indictments less than a month after the initial indictment against Movant due to the complexity and interrelated nature of this and other cases. (Doc. # 19 at 3-4.) Additionally, the timing of superseding indictments is not evidence of vindictive prosecution. See Falcon, 347 F.3d at 1005. The Government's decision to increase the charges against Movant in the superseding indictments was within its discretion, and was made after further development of the case when it failed to obtain Movant's cooperation in a plea agreement. Furthermore, as was the case in Bordenkircher, it was within the prosecutor's discretion to determine whether, and when, to file the § 851 enhancement. See Bordenkircher, 434 U.S. at 357.
The Court notes that Movant had filed seventeen pretrial substantive motions, not including those jointly filed by codefendants. The Court perceives little, if any, correlation between the filing of these motions and the Government's filing of superseding indictments.
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In the absence of direct evidence of actual prejudice, the Court considers whether to apply a presumption of vindictiveness. The Supreme Court has yet to apply the presumption of vindictiveness in the pretrial context, and has expressly rejected the presumption's application in two pretrial situations. See Bordenkircher, 434 U.S. 357; Goodwin, 457 U.S. 368. In Bordenkircher, the Court first rejected the presumption's application to the back and forth negotiations of plea bargains, as long as (1) the prosecutor has probable cause for the greater charges, and (2) the defendant is free to accept or reject the offer. 434 U.S. at 363-64. In Goodwin, the Court declined to apply the presumption of vindictiveness where a prosecutor obtained a felony indictment after a defendant declined to plead guilty to misdemeanor charges and exercised his right to a jury trial. 457 U.S. at 382-84. In finding that the presumption of vindictiveness was not appropriate, Goodwin explained:
There is good reason to be cautious before adopting an inflexible presumption of prosecutorial vindictiveness in a pretrial setting. In the course of preparing a case for trial, the prosecutor may uncover additional information that suggests a basis for further prosecution or he simply may come to realize the information possessed by the State has a broader significance. At this stage of the proceedings, the prosecutor's assessment of the proper extent of prosecution may not have crystalized. In contrast, once a trial begins, and certainly by the time a conviction has been obtained, it is much more likely that the State has discovered and assessed all of the information against an accused and has made a determination, on the basis of that information, of the extent to which he should be prosecuted. Thus, a change in the charging decision made after an initial trial is completed is much more likely to be improperly motivated than is a pretrial decision.Goodwin, 457 U.S. at 381-82.
In addition, a defendant before trial is expected to invoke procedural rights that inevitably impose some 'burden' on the prosecutor. Defense counsel routinely file pretrial motions to suppress evidence; to challenge the sufficiency and form of an indictment; to plead an affirmative defense; to request psychiatric services; to obtain access to government files; to be tried by jury. It is unrealistic to assume that a prosecutor's probable response to such motivations is to seek to penalize and to deter. The invocation of procedural rights is an integral part of the adversary process in which our criminal justice system operates.
[T]he timing of the prosecutor's action in this case suggests that a presumption of vindictiveness is not warranted. A prosecutor should remain free before trial to exercise the broad discretion entrusted to him to determine the extent of the societal interest in prosecution. An initial decision should not freeze future conduct. As we made clear in Bordenkircher, the initial charges filed by a prosecutor may not reflect the extent to which an individual is legitimately subject to prosecution.
Thus, "[t]he possibility that a prosecutor would respond to a defendant's pretrial demand for a jury trial by bringing charges not in the public interest that could be explained only as a penalty imposed on the defendant is so unlikely that a presumption of vindictiveness certainly is not warranted." Id. at 384 (emphasis in original). Instead of adopting a per se rule that the presumption of vindictiveness does not apply in the pretrial setting, the Tenth Circuit has stated that the presumption may apply in cases that are "genuinely distinguishable from Goodwin and Bordenkircher." Raymer, 941 F.2d at 1040. In such cases, the Court must evaluate "the totality of the objective circumstances to decide whether a realistic probability of vindictive prosecution exists." Id.
The Court finds that the facts of this case are not genuinely distinguishable from those of Bordenkircher or Goodwin, where the alleged vindictive prosecution arose from the government's pretrial decision to add charges against the defendants. See Bordenkircher, 434 U.S. 357; Goodwin, 457 U.S. 368; see also United States v. Doran, 882 F.2d 1511, 1520-21 (10th Cir. 1989) ("The lesson of Goodwin is that proof of a prosecutorial decision to increase charges after a defendant has exercised a legal right does not alone give rise to a presumption in the pretrial context."). In both Bordenkircher and Goodwin, as in this case, the prosecution carried out its stated intent to increase the charges against a defendant who did not to plead guilty to the lesser offense originally charged. 434 U.S. at 365; 457 U.S. 368. Early in this case, the Government stated on the record that, while additional charges may be forthcoming, Movant was initially charged with a sole count in hopes that he would plead guilty and become a "source of information." (Doc. ## 425 at 14; 19 at 3-4.) After failing to obtain Movant's cooperation, and after obtaining additional evidence against Movant, the Government followed through with its stated intent to file superseding indictments. (Doc. ## 63; 107; 195.) Because the Court finds that the facts giving rise to the alleged vindictiveness are not genuinely distinguishable from Bordenkircher or Goodwin, the presumption of vindictiveness does not apply.
After a thorough review of the record, the Court finds that there is an absence of evidence that the prosecution acted with actual animus towards Movant or that the prosecutor had a personal stake in the trial; thus he has not shown actual vindictiveness. The relevant facts of this case are not genuinely distinguishable from those of Bordenkircher or Goodwin; thus, the presumption of vindictiveness does not apply to this case. It necessarily follows that Movant's ineffective assistance of counsel claims must also fail, because he is unable to meet the second prong of the Strickland test requiring the Movant to show he had been prejudiced, i.e., a reasonable probability that his vindictive prosecution claim would have changed the outcome of the trial or appeal.
II. CONCLUSION
For the foregoing reasons, it is ORDERED that Movant's 28 U.S.C.§ 2255 Motion to Motion to Vacate, Set Aside, or Correct Sentence by a Person in Federal Custody (Doc. # 734) is DENIED.
It is FURTHER ORDERED that there is no basis on which to issue a certificate of appealabilty pursuant to 28 U.S.C. § 2253(c).
BY THE COURT:
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CHRISTINE M. ARGUELLO
United States District Judge