Opinion
CRIMINAL ACTION NO. 99-252, SECTION "K" (1)
August 22, 2003
ORDER AND REASONS
Before this Court is Rec. Doc. 592, a Motion to Vacate, Set Aside or Correct Sentence brought by brought by defendant Isaac Knapper. For the reasons that follow, the Court DENIES defendant's Motion.
FACTS AND BACKGROUND
On June 14, 2000, defendant pled guilty to both drug conspiracy charges in violation of the Federal Controlled Substances Act, 21 U.S.C. § 841(a)(1) and 846, and money laundering charges under 18 U.S.C. § 1956(a)(1)(B)(1). At re-arraignment defendant executed and attested to both a factual basis for his crimes and a plea agreement. In August of 2000, a Pre-Sentence Report ("PSI") was issued indicating that defendant was responsible for between 50kg to 150kg of cocaine hydrochloride resulting in a base offense level of 36 under the Federal Sentencing Guidelines. The PSI further recommended the Court impose a two-level increase against the defendant for firearm possession and a four-level increase for the defendant's leadership role in the offense, with a three-level reduction for defendant's acceptance of responsibility. This resulted in an offense level of 39 under the guidelines such that defendant's ultimate sentencing range was from 262 to 327 months of imprisonment. Defendant filed timely objections to the increase of the offense level for the firearms and to the proposed leadership adjustment. Process November 27, 2000, defendant moved to withdraw his guilty plea, a motion which this Court denied on January 8, 2001. At sentencing on April 18, 2001 the Court sustained the defendant's objection to the sentencing enhancement relating to the firearm possession and denied the defendant's objection to the proposed leadership adjustment. As a result of the Court sustaining Knapper's objection, his base offense level was reduced to 37. With a criminal history category of I, the applicable guideline range was 210-262 months. The Court then sentenced the defendant to 240 months on both counts (the drug charges and money laundering) to be served concurrently.
Defendant then appealed his conviction to the Fifth Circuit Court of Appeals on the grounds that the Court erred both in denying his motion to withdraw his guilty plea and applying a leadership role enhancement. The Fifth Circuit issued a judgment affirming this Court on January 3, 2002. Subsequently, defendant timely filed this § 2255 Motion on March 6, 2003, arguing that 1) his plea was involuntary; 2) his indictment was faulty and not timely filed under 18 U.S.C. § 3162; and 3) he had ineffective assistance of counsel.
DISCUSSION
1. Standard of Review
Under 28 U.S.C. § 2255, a prisoner in custody under sentence of a federal court may move that court to vacate his sentence. The court need not, however, conduct a hearing and relitigate issues that were raised by the petitioner in his direct appeal. Kaufman v. United States, 394 U.S. 217 (1968); Fuentes v. United States, 455 F.2d 910 (5th Cir. 1972). In United States v. Shaid, 937 F.2d 228, 231-32 (5th Cir. 1991) the Fifth Circuit explained that a petition for relief under 28 U.S.C. § 2255 "may not do service for an appeal" Shaid, 937 F.2d at 231. After conviction and exhaustion or waiver of any right to appeal "we are entitled to presume that [the defendant] stands fairly and finally convicted" such that a defendant may challenge his conviction after it is presumed final only on issues of constitutional and jurisdictional magnitude. Id. at 232; see also Hill v. United States, 368 U.S. 424 (1962). A defendant may not raise an issue for the first time on collateral review without first showing both "cause" for his procedural default and "actual prejudice" resulting from the error. Shaid, 937 F.2d at 232 (quoting United States v. Frady, 456 U.S. 152, 168 (1982)).
A prisoner in custody under sentence of a court may move the court which imposed the sentence to vacate, set aside or correct the sentence under 28 U.S.C. § 2255.
Additionally,
"unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate. 28 U.S.C. § 2255.
If the error is not of constitutional or jurisdictional magnitude, the defendant must show-that the error could not have been raised on direct appeal, and if condoned, would result in a complete miscarriage of justice. United States v. Capua, 656 F.2d 1033, 1037 (5th Cir. 1981). A defendant must meet this cause and actual prejudice test even when he alleges a fundamental constitutional error. See Murray v. Carrier, 477 U.S. 478, 493 (1986). The cause and prejudice standard applies to inadvertent attorney errors as well as deliberate tactical decisions. See Smith v. Murray, 477 U.S. 527, 533 (1986).
In an "extraordinary case," however, "in which a constitutional violation has probably resulted in the conviction of one who is actually innocent," the Supreme Court has recognized a narrow exception to the cause and prejudice test. This exception is limited to "extraordinary" cases involving "manifest miscarriage [s] of justice" that would result in the continued incarceration of one actually innocent of the offense. See e.g., Smith v. Murray, 477 U.S. at 537; Murray v. Carrier, 477 U.S. at 496. The Court notes that the defendant does not contend that he is "actually innocent" of the crimes at issue in this case.
2. Knapper's Arguments
a. Involuntariness of plea and Improper Sentencing Enhancement
In his petition, Knapper contends that his plea was involuntary and should be invalidated. He also claims that his sentencing enhancement was improper because he was given a four-point enhancement for a supervisory role when in actuality he was only a supplier and should not have receive the enhancement. Both of these claims are without merit because this Court previously addressed these claims in denying Knapper's motion to withdraw his guilty plea. See United States v. Knapper. No. 99-252, 2001 WL 25651, *1 (E.D. La. 1/8/01). The Court was later affirmed by the Fifth Circuit. (Knapper also raises these claims in the context of an ineffective assistance of counsel claim, which the Court will address below.)
Knapper was sentenced on April 18, 2001 and appealed his conviction to the Fifth Circuit on the grounds that the Court erred in 1) denying his motion to withdraw his guilty plea; and 2) in enhancing defendant's sentence due to his leadership role in the charged offenses. The Fifth Circuit upheld defendant's plea of guilty by affirming this Court's ruling, which held that:
despite defendant's attempts to clothe his argument [to withdraw his plea of guilty] to fit within the applicable factors . . . the fact remains that defendant objects to the presentence report enhancements, not the guilty plea itself. After a finding that defendant was competent to plead, this Court thoroughly Boykinized defendant; after asking defendant how he wished to plead, the defendant responded `guilty.' Rearraignment transcript, p. 4.
* * *
. . . As to the possible sentence defendant could receive, he was advised that `the maximum possible sentence that can be imposed . . . [is] a term of life imprisonment . . . [and] if the Court [imposes a more severe sentence than defendant expected] you will still be bound by your plea and you have no right to withdraw that' at which time [Defendant] acknowledged that he understood the consequences of his plea and the possible punishment, all the time while represented by `extremely competent counsel.'See Knapper, 2001 WL 25651 at *1. As the Court's ruling illustrates, not only was Knapper advised that his sentence could be more severe than expected (i.e. that his sentence could be enhanced for his leadership role), he was also advised that he would be bound by the plea and unable to withdraw it (i.e. which illustrates the plea was voluntary). Nothing in the record indicates that Knapper failed to understand the proceedings and the constitutional nature of the protections he waived, or that he was incompetent to plead. Given the record before it, the Court concludes that the voluntariness of Knapper's guilty plea has been thoroughly examined by this Court and the Court of Appeals in the denial of Knapper's motion withdraw his guilty plea, and the Court upholds its former conclusion that Knapper's plea was voluntary.
Further, Knapper has waived any right to appeal his sentence in his plea agreement. "An informed and voluntary waiver of post-conviction relief is effective to bar such relief." United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The language in his plea agreement states "defendant hereby expressly waives the right to appeal his sentence on any ground . . . and the defendant further agrees not to contest his sentence in any post conviction proceeding, including by not limited to a proceeding under Title 28 U.S.C. § 2255." Although such a waiver may not apply to Knapper's ineffective assistance of counsel claim, it applies to his allegation that his plea was involuntary, especially in light of the fact that this Court has already held that the plea was voluntary. United States v. White, 307 F.3d 336, 339 (5th Cir. 2002).
Faulty Indictment
Knapper next argues that the indictment was faulty because it was untimely filed, did not include the drug amount, and violated 18 U.S.C. § 3162 which provides for dismissal if an indictment is untimely filed. These arguments have been waived because Knapper failed to raise these issues on direct appeal. A defendant "may not raise an issue . . . for the first time on collateral review without showing both cause for his procedural default and actual prejudice," United States v. Segler, 37 F.3d 1131, 1133 (5th Cir. 1994). Knapper has not shown the cause for his failure to challenge the indictment on direct appeal or actual prejudice. Accordingly, the Court rejects these arguments for relief.
Ineffective Assistance of Counsel
Finally, Knapper raises issues of constitutional error premised on his claim that he received ineffective assistance of counsel. In White, the Fifth Circuit held that "a defendant can waive his right to file a section 2255 motion, although such a waiver might not apply to an ineffective assistance of counsel claim." White, 307 F.3d at 339. The court stated that an ineffective assistance of counsel claim could proceed in one of two ways: 1) a defendant may argue that the ineffective assistance of his counsel rendered his waiver involuntary; or 2) a defendant may argue that he received ineffective assistance of counsel at his sentencing and that all ineffective assistance of counsel arguments are immune from waiver. Id. After reviewing Knapper's brief, it appears that he is arguing the second alternative: that he received in effective assistance of counsel at his sentencing and those arguments are immune from waiver.
To make a valid claim for ineffective assistance of counsel, Knapper must demonstrate both prongs of the test set forth in Strickland v. Washington, 466 U.S. 668 (1984). He must show that 1) his counsel's performance was deficient; and 2) his counsel's deficient performance prejudiced his defense. 466 U.S. at 687. As to the first prong of the test, a defendant must show that "counsel's representation fell below and objective standard of reasonableness." Hill v. Lockhart, 474 U.S. 52 (1985) (citing Strickland 466 at 694). The defendant must also show, however, that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. This two-part test applies when a defendant challenges his guilty plea based on ineffective assistance of counsel. Hill 474 at 58. In this context, the "prejudice" requirement hinges on whether counsel's constitutionally defective performance caused the defendant to plead guilty. Id. at 59. In other words, the defendant must prove 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.
In the present case, Knapper's claimed errors are: 1) that counsel did not advise him that his indictment was faulty under Apprendi v. New Jersey, and 2) that counsel did not advise him that the pre-sentence report's finding that he had a leadership role in the offense. 120 S.Ct. 2348 (2000). These arguments are without merit because Knapper cannot satisfy the second prong of the Strickland test. Assuming the first prong, arguendo, that counsel was ineffective for the reasons Knapper alleges, Knapper does not contend that "but for" counsel's mistakes, he would not have pled guilty. Knapper only suggests that the "prejudice" requirement would be satisfied because counsel's mistakes led to a longer sentence. In fact, Knapper states only that "without the above mentioned enhancements [for leadership role and drug amount] the defendant would have been eligible for a `safety valve', which would have effectively given him a sentence that would have been shorter by almost 90 months." In the context of a guilty plea, Knapper is required to show that "but for" counsel's error's he would not have pled guilty, not that his sentence would have been shorter. His contention that counsel's mistake caused him to receive a longer sentence does not satisfy this requirement.
Further, Knapper's arguments about the "safety valve" and Apprendi are not relevant to Knapper's case. First, his argument pertaining to a possible violation of Apprendi is misplaced. In Apprendi the Supreme Court held that "any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." Apprendi, 120 S.Ct. at 2363-64. In this case, Knapper's sentence of 240 months was within the applicable guideline range of 210-262 months and did not exceed the maximum sentence of life imprisonment set forth in 21 U.S.C. § 841(a)(1) and 846. Therefore, Apprendi is inapplicable to Knapper's circumstances, and it was not an error for counsel to neglect to advise Knapper about Apprendi.
Finally, the Court also rejects Knapper's argument counsel was ineffective because he failed to advise Knapper of the potential for a four-point enhancement for a leadership role. Knapper contends that this error disqualified him for the "safety valve" exception set forth in U.S.S.G. § 5C1.2. Knapper misunderstands the "safety valve" exception. The safety valve exception provides that in certain offenses, the Court may impose a sentence that is less than the statutory minimum, if the court finds that the defendant meets the criteria set forth in 18 U.S.C. § 3553(f)(1)-(5). In United States v. Solis, the court found that in order to qualify for the "safety valve" the defendant must have received a statutory minimum sentence that is greater than the one mandated by the guidelines. 169 F.3d 224, 226 (5th Cir. 1999). As recited in the fact section of the opinion, Knapper received a base level offense of 37 which dictated a guideline range of 210-262 months (with a criminal history category of I), The minimum sentence for the drug offense is 10 years. In this case, even with a four level reduction for leadership role, Knapper's sentence (if within the guideline range of 135-168 months) would have been above the statutory minimum, and therefore he would not have qualified for the "safety valve" exception even if he had been granted the reduction.
The pertinent portion of 28 U.S.C. § 3553 reads:
(f) Limitation on applicability of statutory minimums in certain cases. — Notwithstanding any other provision of law, in the case of an offense under section 401, 404, or 406 of the Controlled Substances Act ( 21 U.S.C. § 841, 844, 846) or section 1010 or 1013 of the Controlled Substances Import and Export Act ( 21 U.S.C. § 960, 963), the court shall impose a sentence pursuant to guidelines promulgated by the United States Sentencing Commission under section 994 of title 28 without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that —
(1) the defendant does not have more than 1 criminal history point, as determined under the sentencing guidelines;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
Accordingly, IT IS ORDERED that Isaac Knapper's Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255, Rec. Doc. 592, is hereby DENIED and petitioner's claims are DISMISSED with prejudice.