Opinion
No. 98-40097-01-SAC, No. 01-3229-SAC.
April 30, 2002
MEMORANDUM AND ORDER
This case is before the court on defendant's motion to vacate or correct sentence under 28 U.S.C. § 2255. Defendant alleges that his counsel was constitutionally ineffective, and that he was denied due process of law because the federal court lacked jurisdiction over certain charges. Defendant seeks an evidentiary hearing.
I. Ineffective Assistance of Counsel
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). Prejudice 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 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.
A. Failure to Raise Nexus Argument
Defendant contends that his counsel was ineffective for failing to argue that the Hobbs Act requires a showing of a substantial effect, rather than a de minimis effect, on interstate commerce to prove the requisite jurisdictional nexus. At the time defendant's counsel conducted the defense of this case, the Tenth Circuit had consistently held that the "`jurisdictional predicate of the Hobbs Act can be satisfied by a showing of any de minimis effect on commerce.'" United States v. Bolton, 68 F.3d 396, 398 (10th Cir. 1995) (quoting United States v. Zeigler, 19 F.3d 486, 489 (10th Cir.), cert. denied, 513 U.S. 1003 (1994)).
The Hobbs Act provides for the punishment of "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do. . . ." 18 U.S.C. § 1951(a). The act further defines commerce as "all commerce between points within the same State through any place outside such State; and all other commerce over which the United States has jurisdiction." 18 U.S.C. § 1951(b)(3).
Defendant points to the Supreme Court's decision in Jones v. United States, 529 U.S. 848 (2000), to support his argument that more than a de minimis showing is now required under the Hobbs Act. In Jones, the Supreme Court examined the federal arson statute which makes it a federal crime to damage or destroy "by means of fire or an explosive, any . . . property used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce. . . ." 18 U.S.C. § 844(i). The Court determined that arson of an owner-occupied private residence did not fall within the scope of 18 U.S.C. § 844(i) because the word "used" meant that the damaged or destroyed property must itself have been actively used for commercial purposes. See id.
The Tenth Circuit has soundly rejected the argument, however, that Jones requires more than a de minimis showing under the Hobbs Act. In United States v. Malone, 222 F.3d 1286, 1295 (10th Cir.), cert. denied, 531 U.S. 1028 (2000), the Tenth Circuit stated: "we do not believe Jones v. United States impacts our Hobbs Act precedent" because unlike the federal arson statute examined in Jones, the Hobbs Act has no similar qualifying language, but instead indicates Congress' intention to invoke its full authority under the Commerce Clause. Thus in the Tenth Circuit only a de minimis effect on interstate commerce must be proven under the Hobbs Act. Id. Despite defendant's assertions that the Tenth Circuit is inconsistent with other circuits, see e.g., United States v. Wang, 222 F.3d 234 (6th Cir. 2000), this court is bound by the Tenth Circuit's decisions.
The contention that the requisite jurisdictional nexus requires a showing of a substantial effect, rather than a de minimis effect, on interstate commerce for purposes of the Hobbs Act is thus not sound. The failure of defendant's counsel to anticipate some change in prevailing precedent or to raise this losing argument does not amount to ineffective assistance of counsel, but rather falls squarely within the discretion afforded to him. See Hooks v. Ward, 184 F.3d 1206, 1220 (10th Cir. 1999); Banks v. Reynolds, 54 F.3d 1508, 1514 (10th Cir. 1995); United States v. Cook, 45 F.3d 388, 392 (10th Cir. 1995).
Furthermore, because there was no reasonable probability of success in raising such a challenge, defendant suffered no prejudice by his counsel's failure to make the argument. Defendant's claim of ineffective assistance of counsel in failing to raise a Hobbs Act jurisdictional deficiency thus fails.
B. Pretrial and Plea Process Deficiencies
Defendant further contends that his counsel was constitutionally ineffective during and in relation to the plea process. Chief among defendant's complaints are that counsel failed to adequately inform himself and defendant of the material law and facts in the pretrial and plea process, and misadvised defendant that he was facing a maximum sentence of 20 years and wouldn't even have to serve that long.
This is not the first time this court has addressed these claims. The court previously considered not only defendant's claim that he is factually innocent, but also defendant's claims that his counsel failed to fully explain the plea agreement, failed to maintain proper communication with him, pressured him to accept the plea agreement, failed to provide adequate counsel regarding the terms, conditions and effect of the plea agreement, and misadvised him of the maximum penalty that he could potentially serve. These and other claims were raised in "Defendant's Motion to Vacate and Set Aside Plea and To Reopen Hearing on Defendant's Motions to Suppress His Statement and to Allow him to Present Evidence for Reason that he has been Denied his Sixth Amendment Right to Effective Assistance of Counsel and His Fifth Amendment Right to Due Process and Equal Protection." (Dk. 31).
After receiving and reviewing defendant's motion to vacate and set aside his guilty plea, the court held an evidentiary hearing. During the hearing on that motion, newly retained counsel for defendant called four witnesses, including the defendant. Defendant testified, among other matters, that he really did not understand his plea agreement which his former counsel had negotiated with the government, and particularly the sentence he would receive. After carefully considering the evidence presented at the hearing by both defendant and the government, the court addressed each of defendant's claims in a 40 page order, but found no ineffective assistance of counsel or other reason to vacate or set aside defendant's plea.
The court has once again reviewed defendant's claims of ineffective assistance of counsel. To the extent defendant's present motion relates to the performance of his first counsel, Steven D. Rosel, defendant is simply attempting to rehash issues previously and fully addressed by this in its prior order, United States v. Stewart, 51 F. Supp.2d 1147 (D.Kan. 1999). Those rulings were affirmed on direct appeal, see 215 F.3d 1338, 2000 WL 717086, (10th Cir. Jun. 02, 2000) (Table), so will not be readdressed herein. Defendant may not use collateral review to receive a "second bite of the apple" for issues previously decided by this court, "absent intervening change in [the] law." United States v. Warner, 23 F.3d 287, 291 (10th Cir. 1994), (citing United States v. Prichard, 875 F.2d 789, 791 (10th Cir. 1989)). No intervening change in the law relative to these issues is alleged to have occurred.
To the extent defendant's present motion may be read to relate to the performance of his second counsel, Mark L. Bennett, defendant's allegations are unfounded. The record reflects that Mr. Bennett did not enter the case as defendant's attorney until after the pretrial and plea process which gives rise to defendant's claims of error. Although defendant's sentencing hearing occurred after Mr. Bennett entered his appearance for the defendant, defendant raises no claim of error in sentencing except that which is a direct result of his plea and not of any act or failure to act by Mr. Bennett.
II. Due Process/Jurisdiction
Defendant additionally alleges that he was denied due process of law in his prosecution for Hobbs Act violations because the requisite federal jurisdictional nexus was lacking. Defendant claims that even if the proper nexus test is "de minimis," as discussed above, that standard was not met because the indictment and the factual basis for the plea failed to show that any business was robbed of its assets, as is required. See United States v. Romero, 122 F.3d 1334 (10th Cir. 1997); Zeigler, supra. Defendant states that the only allegation pleaded or proven was that individuals who happened to be in the businesses were robbed.
The Tenth Circuit has not directly addressed the line between state and federal jurisdiction when applying the Hobbs Act to defendants charged with the robbery or extortion of private individuals, although other circuits have. See United States v. Lynch, 282 F.3d 1049, 1053 (9th Cir. 2002); United States v. Diaz, 248 F.3d 1065, 1084-85 (11th Cir. 2001); United States v. Wang, 222 F.3d 234, 238-40 (6th Cir. 2000); United States v. Quigley, 53 F.3d 909, 910-11 (8th Cir. 1995); United States v. Collins, 40 F.3d 95, 99-101 (5th Cir. 1994) (formulating test for determining when a robbery of an individual would have the requisite de minimis effect to violate the Hobbs Act); United States v. Buffey, 899 F.2d 1402, 1404-06 (4th Cir. 1990); United States v. Mattson, 671 F.2d 1020, 1023-25 (7th Cir. 1982).
The court need not determine whether the Tenth Circuit would apply the Collins test, or any other test, to determine whether defendant's robberies of the individuals in the present case have the requisite de minimis effect on commerce, however, because the facts established in the PSI show that defendant's target in each instance was a business establishment, and that defendant actually robbed not only the named individuals because they were employees or customers of the businesses, but also the businesses themselves.
The Presentence Investigation Report ("PSIR") shows that defendant robbed or attempted to rob all but one of the individuals listed in Counts 1-4 of the Indictment in their capacities as employees of two different business establishments. (The other one was a customer in the surf shop.) The PSIR establishes that defendant took $600 to $800 in cash from the business proceeds from the register at the Lawrence Pizza Company, as well as approximately $220 in personal effects from its employees, and approximately $300 from the business proceeds from the register at Sharks Surf Shop, one of its employees, and a potential customer inside the store. Defendant did not dispute these facts or object to them, other than to deny his guilt at the time of sentencing. See Dk. 67 (Transcript of sentencing).
Although some of defendant's immediate victims were individuals, it is reasonable to conclude that defendant's ultimate targets were The Lawrence Pizza Company and Shark's Surf Shop. Defendant removed money from each of the store's cash registers, depleting their assets during the commission of the robberies. Under these circumstances, it is appropriate to infer, from the showing that the business assets were depleted, that interstate commerce was affected to some minimal degree. See United States v. Wiseman, 172 F.3d 1196, 1214-15 (10th Cir. 1999); Zeigler, 19 F.3d at 493. The depletion of business assets potentially affecting interstate commerce constitutes a sufficient nexus to interstate commerce under the Hobbs Act. United States v. Chanthadara, 230 F.3d 1237, 1253 (10th Cir. 2000). No denial of due process thus occurred.
Defendant is correct that the indictment fails to allege that defendant robbed any assets of the businesses engaged in interstate commerce. It does, however, allege that defendant robbed certain individuals in their capacities as employees and/or customers of the businesses engaged in interstate commerce. See Indictment, alleging that "at all times material to this Indictment, [named individuals] were employees of [named businesses] engaged in interstate commerce." The individuals named in the indictment were robbed because they were working in or shopping in the businesses at the time of the robbery of the business. This is arguably sufficient to show a de minimis effect. See United States v. Nguyen, 155 F.3d 1219, 1225 (10th Cir. 1998) (finding money stolen from co-owner/operator's purse during course of robbery of restaurant could properly be considered to have effect upon interstate commerce); United States v. Agnes, 753 F.2d 293, 302 (3d Cir. 1985) (any employees of shop from which defendant forcibly removed property could be deemed victims of alleged extortion in violation of Hobbs Act, inasmuch as they had financial interest in continuing operation of business); United States v. Blakey, 607 F.2d 779, 784 (7th Cir. 1979) (removal of $1,000 from victim's pocket could curtail his purchases in interstate commerce).
To the extent defendant may be claiming that the indictment failed to allege an essential element of the crime, the court disagrees. According to the Tenth Circuit, "it is not necessary for the indictment in a Hobbs Act case to allege the exact nature of the interference with commerce." United States v. Boston, 718 F.2d 1511, 1515 (10th Cir. 1983). The indictment alleges that the defendant took property from certain individuals, that he did so by means of actual and threatened force and violence, and that the transaction adversely affected interstate commerce. No more is required. See Stirone v. United States, 361 U.S. 212 (1960); Wiseman, 172 F.3d at 1215. The court additionally believes that defendant had ample notice from the indictment of the acts for which he was to be tried, and that his guilty plea was not based on facts outside the scope of the indictment. See Dk. 35 (Transcript of Plea Hearing.)
III. Request for Counsel/Evidentiary Hearing
Section 2255 requires that the court grant a hearing "[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255. The petitioner "bears the burden of alleging facts which, if proved, would entitle him to relief." Hatch v. State of Oklahoma, 58 F.3d 1447, 1457 (10th Cir. 1995) , cert. denied, 517 U.S. 1235 (1996). No hearing is required where the factual matters raised by defendant's Section 2255 petition may be resolved on the record before the Court. See United States v. Marr, 856 F.2d 1471, 1472 (10th Cir. 1988). Defendant's claim of a due process violation is resolved conclusively as a matter of law. Defendant's claim of ineffective assistance of counsel in the plea process and plea agreement have previously been ruled upon after an evidentiary hearing. Defendant's claim that counsel failed to raise the Hobbs Act nexus argument, even if true, does not constitute ineffective assistance of counsel. Thus defendant is not entitled to a hearing.
Defendant has requested the appointment of counsel for discovery and his evidentiary hearing. Given the court's ruling above that no evidentiary hearing is required, and finding that defendant has previously had his day in court regarding the alleged inadequacies of his first counsel, no further discovery shall be permitted. Thus no need for appointment of counsel exists.
IT IS THEREFORE ORDERED that defendant's motion to vacate or correct sentence pursuant to § 2255 (Dk. 70) is denied.