Opinion
Civil Case No. 03-3017-SAC, Criminal Case No. 02-2004-01-SAC
September 3, 2003
MEMORANDUM AND ORDER
The case comes before the court on the defendant William E. Packard, Jr.'s pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dk. 74) and a supporting memorandum (Dk. 75). The government has filed a timely response in opposition, (Dk. 80), and the defendant has filed a timely reply, (Dk. 81).
PROCEDURAL HISTORY
In January of 2000, the grand jury returned an indictment against William E. Packard, Jr. charging him with one count of attempting to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 846, one count of conspiracy to attempt to manufacture methamphetamine in violation of 21 U.S.C. § 841(a)(1) and 846, and one count of possession of pseudoephedrine with the intent to manufacture methamphetamine in violation of 21 U.S.C. § 841(d)(1). The defendant Packard pleaded guilty to all three counts in exchange for the government's agreement to recommend a reduction for acceptance of responsibility and to file a motion for downward departure if the defendant's cooperation amounted to substantial assistance. The defendant, in relevant part, agreed that he would not file an appeal on any issues related to the case. On September 25, 2000, the district court sentenced the defendant to 180 months imprisonment on each count with the terms to run concurrently. The sentence was within the sentencing guideline range.
The defendant's attorney filed a notice of appeal on October 10, 2000. The Tenth Circuit dismissed the defendant's attorney from the case for not filing an opening brief and not responding to the court's show cause order. The district court appointed new counsel to handle the defendant's appeal. In December of 2001, the defendant filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 which the district court later denied as premature in light of the pending appeal. In October of 2002, the Tenth Circuit dismissed the appeal based in response to the defendant's motion to dismiss the appeal. On January 8, 2003, the defendant filed his current motion for relief pursuant to 28 U.S.C. § 2255.
GENERAL § 2255 STANDARDS
"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir. 1996); see also United States v. Frady, 456 U.S. 152, 167-68 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir. 1996) (citations omitted), cert. denied, 519 U.S. 1134 (1997). A colorable claim of factual innocence may be sufficient to establish a fundamental miscarriage of justice. Moreover, a claim that an indictment "fails to show jurisdiction in the court or to charge an offense . . . shall be noticed by the court at any time during the pendency of the proceedings." Fed.R.Crim.P. 12(b)(2). Such a claim may be raised for the first time in a § 2255 proceeding. Marteney v. United States, 216 F.2d 760, 762 (10th Cir. 1954); see also United States v. Welch, 849 F. Supp. 5, 7 (D. Me. 1994).
INEFFECTIVE ASSISTANCE OF COUNSEL
"An indigent defendant in a criminal trial has the constitutional right to the assistance of counsel." Baker v. Kaiser, 929 F.2d 1495, 1498 (10th Cir. 1991) (citing Gideon v. Wainwright, 372 U.S. 335 (1963)). "The right to counsel also extends to a defendant's first appeal as of right." Baker, 929 F.2d at 1498 (citing Douglas v. California, 372 U.S. 353 (1963)).
To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690 (1984); see also Hill v. Lockhart, 474 U.S. 52, 58 (1985) ("We hold, therefore, that the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.") To show deficient performance, the defendant must show that his counsel's performance was "completely unreasonable, not merely wrong." Hoxsie v. Kerby, 108 F.3d 1239, 1246 (10th Cir.), cert. denied, 522 U.S. 844 (1997). To show prejudice, the defendant must establish that, but for counsel's unprofessional errors, there was a reasonable probability that the outcome of his conviction and/or sentencing would have been different. Id. at 1245; see Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:
There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).Kimmelman v. Morrison, 477 U.S. 365, 381 (1986). A court can jump to the prejudice prong without first determining whether counsel's performance was deficient:
[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. 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.Strickland, 466 U.S. at 697.
The defendant argues his trial counsel was ineffective. The Tenth Circuit looks to the standard in Hill v. Lockhart for deciding when a guilty plea is invalid because of ineffective assistance of counsel:
The Court held that a prisoner challenging a guilty plea because of ineffective assistance satisfies the prejudice inquiry by showing that the constitutionally ineffective performance "affected the outcome of the plea process. In other words . . . 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." Hill, 474 U.S. at 59 (emphasis added). However, the Court went on to note that courts applying this standard will often review the strength of the prosecutor's case as the best evidence of whether a defendant in fact would have changed his plea and insisted on going to trial. See id. at 59-60.Miller v. Champion, 262 F.3d 1066, 1072 (10th Cir. 2001), cert. denied, 534 U.S. 1140 (2002). From the law established in Hill, the Tenth Circuit has fashioned the following rules of procedure:
This court has therefore held that a petitioner's "mere allegation" that he would have insisted on trial but for his counsel's errors, although necessary, is ultimately insufficient to entitle him to relief. See United States v. Gordon, 4 F.3d 1567, 1571 (10th Cir. 1993). Rather, we look to the factual circumstances surrounding the plea to determine whether the petitioner would have proceeded to trial. See id,; United States v. Wright, 43 F.3d at 491, 498 (10th Cir. 1994); Lasiter v. Thomas, 89 F.3d 699, 703-04 (10th Cir. 1996).Miller, 262 F.3d at 1072. Besides this prejudice prong, the defendant must prove also that the advice of his counsel "was not within the range of competence demanded of attorneys in criminal cases." United States v. Carr, 80 F.3d 413, 416 (10th Cir. 1996) (citation omitted). Specifically, "a plea may be involuntary if the attorney materially misinforms the defendant of the consequences of the plea." Id. at 418 (quotation omitted).
PRIMARY ISSUES
The defendant's motion identifies the following three issues:
1) "Title 21 has not been enacted in to Positive Law." (Dk. 74, p. 5).
2) "[T]he Federal District Court of the District of Kansas is without lawful jurisdiction to try the original case." (Dk. 74, p. 5).
3) "Ineffectiveness of Counsel." (Dk. 74, p. 5).
The defendant's initial brief and reply brief are voluminous and argue many extraneous and disjointed points, all of which the courts have unanimously rejected as meritless, if not frivolous. In this order, the court will address only those arguments that can be logically discerned from the defendant's briefs, and those arguments will be handled summarily by citing the controlling precedent that rejected them. The court, however, will not consider those arguments that appear for the first time in the defendant's reply brief. ISSUE 1: CONSTITUTIONALITY OF 21 U.S.C. § 801-971, COMPREHENSIVE DRUG ABUSE PREVENTION AND CONTROL ACT OF 1970.
A party is prohibited from raising new arguments and issues in a reply brief. Boilermaker-Blacksmith Nat. Pension Fund v. Gendron, 67 F. Supp.2d 1250, 1257 n. 4 (D. Kan. 1999), and a court is not to consider issues first raised in a reply brief, Plotner v. AT T Corp., 224 F.3d 1161, 1175 (10th Cir. 2000). Thus, the court declines to address these argument first advanced in the defendant's reply brief. See United States ex rel. Hafter D.O. v. Spectrum Emergency Care, Inc., 190 F.3d 1156, 1160 n. 5 (10th Cir. 1999)
The defendant first argues that Congress lacked the constitutional authority to enact the proscriptions in 21 U.S.C. § 841, thus the statute is unconstitutional. More specifically, the defendant argues that the statute lacks any requirement to prove a nexus with interstate commerce and that any effort to infer this commerce element would override the states' autonomy protected by the Tenth Amendment. The Tenth Circuit has held that the Commerce Clause allows Congress to prohibit drug trafficking which affects interstate commerce; that the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S.C. § 841(a)(1), implicates interstate commerce; and that the Act is a valid exercise of Congress' power under the Commerce Clause. United States v. Wacker, 72 F.3d 1453, 1475 (10th Cir. 1995), cert. denied, 519 U.S. 848 (1996). "Congress made explicit findings explaining the conduct's `substantial and direct effect upon interstate commerce.'" Id. (quoting 21 U.S.C. § 801(3)-(6)). "The Tenth Amendment raises no additional impediment to enforcement of the federal drug laws." Wilson v. United States, 946 F.2d 902, 1991 WL 216477 at *1 (10th Cir. 1991) (citing In re Grand Jury Proceedings, 801 F.2d 1164, 1169-70 (9th Cir. 1986) and United States v. Lopez, 459 F.2d 949, 951 (5th Cir.), cert. denied, 409 U.S. 878 (1972)); see United States v. Deering, 179 F.3d 592, 597 (8th Cir.), cert. denied, 528 U.S. 945 (1999). The defendant's argument lacks any authority.
The defendant next traces portions of this Act back to language first appearing in regulations and then argues the underlying statutes now should be prosecuted as if regulations. The defendant has no authority for the untenable proposition that a statute properly enacted by Congress becomes nothing more than a regulation when it shares language or a historical source with a former regulation. The court summarily rejects this argument.
The defendant next argues the Act cannot be constitutionally applied to him, as the Act was intended to apply only to those persons who must be licensed or registered and not to mere "street drug dealers." The Tenth Circuit has dismissed this argument as "without merit," because the Act broadly applies "to `any person' and the case law has universally interpreted it as so applying. United States v. Wacker, 72 F.3d at 1475 (citation omitted). The defendant's argument is without merit.
Finally, the defendant argues that Title 21 cannot be constitutionally enforced against him because it was not never enacted into "positive law." "When Congress enacts a title of the Code into `positive law,' it puts its authoritative imprimatur on the language appearing in that particular title of the Code." Washington-Dulles Transp., Ltd. v. Metropolitan Washington Airports Authority, 263 F.3d 371, 378 n. 2 (4th Cir. 2001). Congress has yet to approve specifically the language or codification appearing at Title 21 of the United States Code. See Turner v. Glickman, 207 F.3d 419, 428 (7th Cir. 2000). The fact that Congress has not enacted Title 21 into positive law "does not render the substantive law it records a nullity." Wilson v. United States, 946 F.2d at 902, 1991 WL 216477, at *1; see Ryan v. Bilby, 764 F.2d 1325, 1328 (9th Cir. 1985); Henriquez v. United States, 2003 WL 21242722, at *2 (S.D.N.Y. 2003); United States v. Charles, 2002 WL 31056548, at *4 (D. Kan. 2002). Title 21 remains prima facie evidence of the laws of the United States, and the defendant does not argue that it fails to represent the original law or that the authenticity of the Code has any relevance to his case. The defendant's argument is "`meritless on [its] face.'" Henriquez, 2003 WL 21242722 at *1 (quoting Piggott v. United States, 2003 WL 77001, at *2, 5 (S.D.N.Y. 2003)); see United States v. Almonte-Nunez, 1999 WL 1215922, at *1 (D.C. Cir. 1999) (this argument is "frivolous").
ISSUE 2: FEDERAL DISTRICT COURT'S JURISDICTION TO HEAR THE DEFENDANT'S CASE
The defendant first challenges that the federal district courts are mere territorial or legislative courts without authority to preside over felony cases.
The defendant's tortured reasoning turns on irrelevant statutes and misinterpretations of the same. What cannot be contested is that federal district courts are explicitly vested with jurisdiction over "all offenses against the laws of the United States" by 18 U.S.C. § 3231. United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990), cert. denied, 500 U.S. 920 (1991). Section 3231 gives this court exclusive jurisdiction to consider violations of federal criminal laws. United States v. Sitton, 968 F.2d 947, 953 (9th Cir. 1992), cert. denied, 507 U.S. 929 (1993). Similar challenges to a federal district court's jurisdiction over criminal matters have met with no success in this circuit and have been called frivolous. See, e.g, United States v. Brown, 52 Fed. Appx. 125, 126, 2002 WL 31745057, at *1 (10th Cir. Dec. 9, 2002), cert. denied, 123 S.Ct. 2101 (2003); United States v. Frech, 149 F.3d 1192, 1998 WL 317472, at *3 (10th Cir. Jun. 16, 1998); United States v. Forsythe, 985 F. Supp. 1047, 1055 (D. Kan. 1997), appeal dismissed, 153 F.3d 729 (10th Cir.), cert. denied, 525 U.S. 939 (1998).
The defendant's other challenge under this issue is that federal jurisdiction does not exist as the defendant did not commit this offense on federal law and that the State of Kansas did not cede jurisdiction to federal courts for criminal offenses committed in Kansas. As with his other arguments, the defendant's position is without legal authority and has been uniformly rejected as without merit. See United States v. Deering, 179 F.3d at 597-598; United States v. Lampley, 127 F.3d 1231, 1245-46 (10th Cir. 1997) ("The Supremacy Clause, the Civil War, the decisions of the Supreme Court, and acts of Congress make it clear that so long as there is a constitutionally authorized federal nexus, the federal government is free to act anywhere within the United States." (citations omitted)), cert. denied, 522 U.S. 1137 (1998); United States v. D'Armond, 65 F. Supp.2d 1189, 1197 (D. Kan. 1999); United States v. Hartsfield, 125 F.3d 863, 1997 WL 606756, at *1 (10th Cir. Oct. 2, 1997) ("[I]t is well established that the federal courts have jurisdiction over federal crimes committed within a state's borders.").
ISSUE 3: INEFFECTIVE ASSISTANCE OF COUNSEL
The defendant argues his counsel was ineffective in not raising the above challenges to the constitutionality of the Drug Act and to the jurisdiction of this court in hearing his case. The defendant is unable to show any prejudice from his counsel's failure to advance these challenges, as the court here has rejected each of them as devoid of merit. The defendant has not established any reasonable probability of prevailing on these frivolous challenges. As evidence of his trial counsel's ineffectiveness, the defendant refers to the Tenth Circuit's order dismissing his counsel for failure to file an appellate brief. Again the defendant is unable to prove any prejudice from his counsel's performance, as he was appointed new counsel for the appeal and then voluntarily withdrew his appeal. In his motion to dismiss his appeal, the defendant conceded that he had waived his right to a direct appeal and that there were no appealable issues. Unable to show any prejudice, the defendant cannot prevail on his allegations of ineffective assistance of counsel.
In his reply brief, the defendant argues for the first time that his counsel was ineffective in advising him to plead guilty. The defendant still fails to establish any cognizable prejudice, as he bases his allegations on the same frivolous challenges to the court's jurisdiction and the constitutionality of the Drug Act. Nowhere does the defendant allege that but for his counsel's errors he would not have pleaded guilty and would have insisted on going to trial.
IT IS THEREFORE ORDERED that the defendant William E. Packard, Jr.'s pro se motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence (Dk. 74) is denied.