Opinion
Criminal Action No. 98-127, C.A. 00-52, SECTION "L" (2).
July 3, 2001
ORDER AND REASONS
Before the Court is petitioner Tank McMasters' Motion to Vacate, Set Aside or Correct Sentence Pursuant to Title 28, U.S.C. § 2255. For the following reasons, petitioner's motion is DENIED.
I. BACKGROUND
Petitioner Tank McMasters was charged in a one-count indictment with distribution of cocaine base in violation of title 21, United States Code, section 841(a)(1) on May 29, 1998. The Office of the Federal Public Defender appointed counsel for McMasters on June 1, 1998, and he entered a not guilty plea at his arraignment on June 3, 1998. Having reached a plea agreement with the government, McMasters pled guilty to the indictment on August 24, 1999 before United States District Judge Eldon E. Fallon. McMasters, pursuant to the plea agreement, consented to cooperate with the government and waived his right to appeal his sentence.
On October 26, 1998, McMasters requested and received a continuance of his sentencing in order to afford him an opportunity expunge prior state convictions. McMasters appeared for sentencing on January 6, 1999. His attorney, Philip Boudousque, explained that attempts to expunge the prior convictions had failed. Boudousque also advised the Court that McMasters had told him that he was not in a position to cooperate with the government because he had no information to provide. Moreover, McMasters' attorney advised the Court that his client had indicated that he felt that counsel had lied or misrepresented information to him. When asked by the Court if he had anything to say after his counsel's statements, McMasters stated, "No, Your Honor, I'm going to go with sentencing" and indicated that he was still pleading guilty to count one of the indictment. Sent. Tr. at 8.
The Court proceeded to sentence McMasters to 115 months imprisonment followed by a five year term of supervised release with several special conditions. See id. at 8. Although the Court did not impose a fine, it ordered McMasters to pay a $100 special assessment. The Court also advised McMasters that he had an opportunity to appeal the sentence if he chose and could request the appointment of counsel and a copy of the sentencing transcript. See id. at 9. At the end of sentencing, defense counsel informed the Court that he intended to file a motion to withdraw. See id.
On June 1, 1999, McMasters requested a transcript of the sentencing hearing. He then filed a notice of appeal on October 1, 1999 in which he requested appointment of counsel. The Court, noting that McMaster's previous attorney had been relieved of representation following the judgment against and commitment of McMasters, ordered the Office of the Federal Public Defender to appoint new counsel to represent him in an October 25, 1999 minute entry.
On November 3, 1999, the United States Court of Appeals for the Fifth Circuit dismissed McMasters' pro se appeal as untimely filed.
On January 6, 2000, McMasters timely filed this motion to vacate, set aside or correct sentence pursuant to tile 28, United States Code, section 2255 through his appointed counsel. The government responded to the motion on March 31, 2000. McMasters then sought leave to file a supplemental memorandum in support of his motion on December 15, 2000. The Court received a response to petitioner's supplemental brief from the government on February 6, 2001.
II. ANALYSIS
The Court may consider granting relief under 28 U.S.C. § 2255 only for a "transgression of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice." United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). "A collateral challenge may not do service for an appeal." United States v. Shaid, 937 F.2d 228, 231 (5th Cir. 1991). "Nonconstitutional claims that could have been raised on direct appeal, but were not, may not be asserted in a collateral proceeding." Vaughn, 955 F.2d at 368.
McMasters raises three arguments to challenge his sentence in his petition for habeas corpus relief. First, McMasters argues that he received ineffective assistance of counsel in violation of the Sixth Amendment both prior to sentencing and in the preservation of his appellate rights. Second, McMasters claims that he did not knowingly waive his right to appeal. Third, McMasters challenges the constitutionality of the term of supervised release imposed by the Court.
A. Ineffective Assistance of Counsel
McMasters asserts that his Sixth Amendment rights were violated because he received ineffective assistance of counsel prior to sentencing and in the preservation of his appellate rights. Specifically, McMasters argues that his right to appeal his sentence was compromised because his counsel failed to file a timely appeal on his behalf, failed to withdraw from representation properly, and failed to notify McMasters of the withdrawal.
To prevail on a claim of ineffective assistance of counsel, McMasters must satisfy the requirements of Strickland v. Washington, 466 U.S. 668 (1984). In Strickland, the United States Supreme Court established a two-prong test for evaluating claims of ineffective assistance of counsel. A convicted defendant seeking relief must first demonstrate that counsel's performance was deficient and second show that the deficient performance prejudiced the defense. See id. If McMasters fails to establish either deficient performance or actual prejudice, the Court may dispose of the claim without addressing the other prong. Id. at 697.
Under the deficient performance prong of the Strickland test, "it is necessary to judge. . . . counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Lockhart v. Fretwell, 506 U.S. 364 (1993) (citing Strickland, 466 U.S. at 690). "An attorney's performance, which enjoys a strong presumption of adequacy, is deficient if it is objectively unreasonable." United States v. Walker, 68 F.3d 931, 934 (5th Cir. 1995), cert. denied, 516 U.S. 1165 (1996) (quoting United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995)). The petitioner must prove that the conduct of trial counsel fell below the constitutional minimum guaranteed by the Sixth Amendment. United States v. Faubion, 19 F.3d 226, 228 (5th Cir. 1994). Analysis of counsel's performance must take into account the reasonableness of counsel's actions in light of all the circumstances. Strickland, 466 U.S. at 688-89. Petitioner "carries the burden of proof . . . and must overcome a strong presumption that the conduct of his trial counsel falls within a wide range of reasonable professional assistance." Crockett v. McCotter, 796 F.2d 787, 791 (5th Cir. 1986) (citations omitted), cert. denied, 479 U.S. 1021 (1986).
The actions of Boudousque prior to and at sentencing do not rise to the level of deficiency required by Strickland and its progeny. Nothing in Boudousque's representation prior to and at sentencing demonstrated ineffective assistance of counsel. Boudousque explained to the Court his conversation with McMasters before sentencing in which McMasters expressed concerns with Boudousque's representation. When asked at sentencing if he had any comments and whether he wished to proceed with sentencing, McMasters replied that "Yes, I'm going to plead guilty." Sent Tr. at 8. Boudousque, rather than ineffectively representing his client, informed the Court that he had expressed concerns to McMasters regarding his plans to decline the plea agreement. See id. at 6.
The Court also finds that Boudousque did not deficiently represent McMasters after sentencing. McMasters claims that he was prejudiced in filing an appeal because Boudousque did not properly or timely withdraw his representation and did not file an appeal on McMasters' behalf. McMasters, however, waived his right to appeal his sentence in his plea agreement. Even though the Court advised McMasters of his right to appeal, McMasters had no basis to appeal his sentence according to the terms of the plea agreement because the Court sentenced McMasters within the appropriate statutory and sentencing guidelines. Therefore, defense counsel had no reasonable basis on which to file an appeal. According to a standard of objective reasonableness, the Court finds that Boudousque provided an aggressive and professional representation of McMasters before, during, and after sentencing.
The plea agreement signed by McMasters on August 24, 1998 states:
Except as otherwise provided in this paragraph, the defendant hereby expressly waives the right to appeal his sentence on any ground, including but not limited to any appeal right conferred by Title 18, United States Code, Section 3742 on the defendant, and the defendant further agrees not to contest his sentence in any post-conviction proceeding, including but not limited to a proceeding under Title 28, United States Code, Section 2255. The defendant, however, reserves the right to appeal the following: (a) any punishment imposed in excess of the statutory maximum, and (b) any punishment to the extent it constitutes an upward departure from the Guideline range deemed most applicable by the sentencing court.
Although the Court need not address the second prong of the Strickland standard, having already found that McMasters' counsel did not perform deficiently, the Court will nevertheless address whether McMasters was prejudiced by Boudousque's representation. To prove prejudice under the Strickland standard, McMasters "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The Strickland court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. In making a determination as to whether prejudice occurred, courts must review the record to determine the "relative role that the alleged trial errors played in the total context of [the] trial." Crockett, 796 F.2d at 793.
The record reveals that Boudousque made no errors that prejudiced McMasters. Boudousque's representation aided McMasters in obtaining a favorable plea agreement and sentence. While Boudousque noted McMasters' concerns with his representation, McMasters raised no objections and reaffirmed his plea at sentencing. Moreover, McMasters was not prejudiced by Boudousque's failure to file a written motion to withdraw representation. Boudousque stated his intention to file a motion to withdraw at sentencing, and McMasters later indicated his understanding that Boudousque no longer represented him by filing a motion to appoint counsel and a pro se appeal. Because McMasters had already waived his right to appeal his sentence, Boudousque's failure to file an appeal on McMasters' behalf did not prejudice McMasters. The Court, therefore, finds that McMasters' was not prejudiced by Boudousque's representation.
In McMasters' October 1, 1999 notice of appeal and motion to appoint counsel, petitioner explains, "I advised my Sentencing Counsel that I wished to appeal my sentence. My Sentencing Counsel Mr. Phillip Boudousque, then asked the court that he be removed from being. my counsel at which time the Court allowed Mr. Boudousque to remove himself."
B. Waiver of Right to Appeal
McMasters next argues that he would not have pled guilty if he had known he was waiving his right to appeal. Although he indicated that he understood the plea agreement which waived his appellate rights in part, raised no objections to the plea agreement when it was discussed at the rearraignment, and signed a written copy of the plea agreement, McMasters submits that he would not have pled guilty had he realized he was waiving his appellate rights.
The evidence indicates that McMasters knowingly and voluntarily waived his right to appeal. He read and signed the plea agreement outlining the terms of his waiver. He also responded at his rearraignment that he understood that he had a right to appeal the sentence imposed by the court unless he had expressly waived that right as part of the plea agreement. See Pet.'s Supp. Mem. at 3; United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994) (holding that a defendant can waive the right to appeal and seek post-conviction relief pursuant to a plea agreement). When questioned again at sentencing about his intention to plead guilty, McMasters reaffirmed his commitment to do so. See Sent. Tr. at 8. McMasters offers no evidence in his petition to challenge his declarations at rearraignment and sentencing which affirmed his intention to plead guilty pursuant to the terms of the plea agreement. See DeVille v. Whitley, 21 F.3d 654, 659 (5th Cir. 1994) (stating that testimony in open court carries a strong presumption of verity). Accordingly, the Court finds that McMasters knowingly and voluntarily consented to waiving his appellate rights as detailed in the plea agreement.
C. Supervised Release
McMasters next challenges the term of supervised release imposed by the Court at sentencing under Apprendi v. New Jersey at its progeny. See 530 U.S. 466 (2000). Because the indictment charging McMasters with distribution of cocaine base in violation of title 21, United States Code, section 841(a)(1) failed to specify the quantity or amount of cocaine base, McMasters contends that he could be sentenced to no more than three years supervised release. See United States v. Meshack, 225 F.3d 556 (5th Cir. 2000) (applying Apprendi to reduce terms of supervised release when drug amounts were not listed in the indictment).
Before considering the merits of petitioner's claim, the Court must determine whether Apprendi applies retroactively to defendant's case as a new constitutional rule of criminal procedure. See Caspari v. Bohlen, 510 U.S. 383, 389 (1994). Generally, new constitutional rules of criminal procedure apply retroactively only to those cases on direct appeal at the time the rule is announced and do not apply to cases on collateral review. See United States v. Murphy, 109 F. Supp.2d 1059, 1063 (D. Minn. 2000) (citing Griffith v. Kentucky, 479 U.S. 314 (1987)). A new rule may apply retroactively on collateral review only if it satisfies one of the two exceptions enumerated in Teague v. Lane: (1) the rule places "certain kinds of primary, private individual conduct beyond the power of the criminal law-making to proscribe;" or (2) the rule is "implicit in the concept of ordered liberty." Fisher v. State of Texas, 169 F.3d 295, 306 (5th Cir. 1999) (quoting Teague v. Lane, 489 U.S. 288, 307 (1989)). Because Apprendi does not implicate the first Teague exception, the Court considers whether Apprendi creates a new constitutional rule of criminal procedure that requires observing procedures that are "implicit in the concept of ordered liberty." Teague, 489 U.S. at 307; see United States v. Brown, 2000 WL 1880280, at *3 (N.D. Tex. Dec. 28, 2000) (holding first Teague exception inapplicable to Apprendi claim).
The second Teague exception applies to "`watershed rules of criminal procedure' that implicate the fundamental fairness and accuracy of the proceeding." Fisher, 169 F.3d at 306 (quoting Teague, 489 U.S. at 311). The Supreme Court and several federal appellate courts including the Fifth Circuit have not yet determined whether Apprendi satisfies the second Teague exception on initial collateral review. The Fourth Circuit, however, leads a litany of courts that have found the new rule announced in Apprendi insufficient to allow retroactive application on collateral review. See United States v. Sanders, 247 F.3d 139, 148 (4th Cir. 2001); Jones v. Smith, 231 F.3d 1227, 1238 (9th Cir. 2001) (declining to apply Apprendi retroactively "insofar as it effects discrepancies between an information and jury instructions"); Sustache-Rivera v. United States, 221 F.3d 8, 14 (1st Cir. 2000); United States v. Perez, No. 397CR342-M, 399CV2823-M, 2001 WL 492389 (N.D. Tex. May 3, 2001); United States v. Zapata-Rodriguez, No. 2:93-CR-285-R, 2001 WL 194758 at *1 (N.D. Tex. Feb. 22, 2001); Panoke v. United States of America, No. 00-548, 2001 WL 46941 at *2 (D. Haw. Jan. 5, 2001); United States v. Joseph, No. 96-275, 2000 WL 1789989 at *2 (E.D. La. Dec. 5, 2000). But see Darity v. United States, 124 F. Supp.2d 355, 361-62 (W.D.N.C. 2000) (finding Apprendi satisfies Teague exception); Murphy, 109 F. Supp.2d at 1063 (holding Apprendi satisfies second Teague exception).
The Fifth Circuit as well as several other Circuits have held that Apprendi does not permit petitioners to raise a second successive collateral attack. See In re Billy Ray Tatum, 233 F.3d 857, 859 (5th Cir. 2000); Talbott v. Indiana, 226 F.3d 866, 868 (7th Cir. 2000); In re: Joshua, 224 F.3d 1281, 1282 (11th Cir. 2000); Sustache-Rivera v. United States, 221 F.3d 8, 14 (1st Cir. 2000). Petitioner in this case, however, raises an Apprendi issue on his first collateral challenge.
While McMasters would have a viable argument to reduce his term of supervised release on direct appeal, he comes before the Court as a petitioner for habeas corpus relief. See Doggett, 230 F.3d 160, 165, n. 2 (5th Cir. 2000) (modifying supervised release to three year term because jury conviction only satisfied the elements of 21 U.S.C. § 841(b)(1)(C)); Meshack, 225 F.3d at 578 (reducing terms of supervised release from five to three years when drug quantity was not properly shown under Apprendi). Accordingly, McMasters is faced with the almost insurmountable burden of demonstrating a Teague exception. The caselaw overwhelmingly supports a finding that Apprendi fails to satisfy the second Teague exception. Accordingly, McMasters is not entitled to habeas corpus relief.
III. CONCLUSION
For the foregoing reasons, petitioner's Motion to Vacate, Set Aside or Correct Sentence Pursuant to Title 28, U.S.C. § 2255 is DENIED.