Opinion
Criminal Action No. 95-219, CA-(99-1657), Section "L" (4)
July 25, 2000
ORDER AND REASONS
Before the Court is petitioner Valerian J. Stock's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255. In the instant writ of habeas corpus, petitioner claims that his sentence be vacated because: (1) using the charge of "use of fire" ( 18 U.S.C. § 844 (h)(i)) to enhance the additional charges of "arson" ( 18 U.S.C. § 844 (i)) and "conspiracy to commit arson" ( 18 U.S.C. § 371) constitutes double jeopardy and violates his Fifth Amendment rights; (2) a miscarriage of justice results when the "use of fire to commit a felony" charge is coupled with the "conspiracy to commit arson" charge to enhance his sentence; and, (3) he received ineffective assistance of counsel in violation of his Sixth Amendment rights. The Court, after considering the motion, record, and applicable law, DENIES defendant's application for writ of habeas corpus with prejudice.
I. BACKGROUND
On February 6, 1995, a building located at 1637 Polymnia Street in Uptown New Orleans was intentionally set afire. The fire spread and destroyed an adjacent warehouse used by United Cab Company to store taxis and to provide respite for employees. On June 30, 1995, a grand jury returned a three count indictment against Lindsey MacDonald, Valerian Stock, and Joseph Corona III for setting the fire. The first count of the indictment alleged conspiracy to destroy by fire the Polymnia street property as well as the 1722 Carondelet street warehouse, in violation of 18 U.S.C. § 371. The second count alleged that the defendants caused the destruction of the two buildings by fire, in violation of 18 U.S.C. § 844 (i). The third count alleged that the defendants knowingly used fire to commit the conspiracy to burn the two structures, in violation of 18 U.S.C. § 844 (h).
Defendants Corona and McDonald entered a pleas of not guilty before a United States Magistrate Judge on July 7, 1995. On November 30, 1995, Corona and McDonald were found guilty by a jury on each of the three counts of the indictment. Corona and McDonald then filed on March 6, 1996 a post conviction motion to dismiss the indictment based on double jeopardy and commerce clause grounds. The motion was denied by the court. Corona and McDonald subsequently appealed their sentences to the United States Court of Appeals for the Fifth Circuit based on these same grounds. During this period, Stock was a fugitive.
Stock was apprehended in the Middle District of Georgia on October 17, 1996, and returned to this district to stand trial. He agreed to plead guilty to the three count indictment provided that he could withdraw his plea if for any reason Corona and McDonald prevailed on appeal. On March 12, 1997, the date of the rearraignment, Stock's appointed counsel, Ralph Whalen, filed a motion to dismiss the indictment arguing the same grounds as the Corona/McDonald motion and subsequent Fifth Circuit appeal. The Court approved Stock's conditional plea, and denied his motion to dismiss the indictment for the same reasons it had denied the Corona/McDonald motion.
On the date of Stock's rearraignment, the Fifth Circuit ruled on the Corona/McDonald appeal. The court held that (1) defendants' convictions under the federal arson statute were not in excess of authority granted to Congress under the commerce clause and (2) that the imposition of separate sentences for arson, conspiracy to commit arson, and using fire to commit conspiracy to commit arson violated the double jeopardy clause of the United States Constitution. See United States v. Corona, 108 F.3d 565 (5th Cir. 1997). The appeals court vacated defendants' sentences on all three counts and remanded the case to the district court so that the government could dismiss one of the counts and that the court could impose new sentences.
In accordance with Corona, the government dismissed count two of the indictment (arson) when Stock was sentenced on May 28, 1997. The Court sentenced him on charges of conspiracy to commit arson and use of fire to commit the conspiracy to burn the structures for consecutive terms of 37 and 60 months, respectively. Stock's counsel filed a notice of appeal at sentencing, but the Court subsequently granted a voluntary dismissal of the appeal on June 12, 1998.
Stock filed this motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255 on May 26, 1999. He contends that his sentence should be vacated because: (1) using the charge of "use of fire" ( 18 U.S.C. § 844 (h)(i)) to enhance the additional charges of "arson" ( 18 U.S.C. § 844 (i)) and "conspiracy to commit arson" ( 18 U.S.C. § 371) constitutes double jeopardy and violates his Fifth Amendment rights; (2) a miscarriage of justice results when the "use of fire to commit a felony" charge is coupled with the "conspiracy to commit arson" charge to enhance his sentence; and, (3) he received ineffective assistance of counsel in violation of his Sixth Amendment rights.
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.
In the present case, Stock actively preserved and pursued his constitutional concerns regarding the indictment on appeal. First, he plead guilty to the three count indictment on the stipulation that he could withdraw the plea if Corona and McDonald were successful in their appeals. At sentencing, Stock's counsel filed a notice of appeal with the Court. Stock then dismissed the appeal after the Fifth Circuit rendered its decision in Corona and the government dismissed the second count of the indictment against him. After Stock dismisses his appeal, the Court is entitled to presume that he is "fairly and finally convicted." Shaid, 937 F.2d at 231. He may then challenge his conviction only on constitutional or jurisdictional grounds. See id. Stock, having already dismissed his appeal, may not reurge the same issues as a collateral challenge.
The Court notes that Petitioner's complaints were directly addressed by the Fifth Circuit in Corona. See Corona, 108 F.3d at 574 (finding sentences for arson, conspiracy to commit arson, and using fire to commit an arson conspiracy duplicative and in violation of defendants' double jeopardy rights). To remedy the constitutional violation, the Fifth Circuit instructed the government to dismiss any of the three counts. See id. The government chose to dismiss count two for each defendant. Therefore, even if the Court were to consider the merits of Petitioner's double jeopardy and miscarriage of justice claims, they are addressed and mooted by the Fifth Circuit's ruling in Corona and the government's dismissal of count two of the indictment against Stock.
Stock further challenges his conviction on the basis that his Sixth Amendment rights were violated because he received ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, Stock 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 Stock 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 Whalen do not rise to the level of deficiency required by Strickland and its progeny. Whalen presented a vigorous defense for Stock who offers no evidence to the contrary. On March 12, 1997, Whalen filed a motion to dismiss indictment arguing violations of the commerce and double jeopardy clauses. He also negotiated a conditional plea agreement whereby Stock could withdraw his plea should his codefendants prevail on their appeal. On May 28, 1997, Whalen filed a notice of appeal and only acted to dismiss it upon consulting with Stock and after the Fifth Circuit ruled on the issues raised. According to a standard of objective reasonableness, the Court finds that Whalen provided an aggressive and professional representation of Stock.
Although the Court need not address the second prong of the Strickland standard, having already found that Stock's counsel did not perform deficiently, the Court will nevertheless address whether Stock was prejudiced by Whalen's representation. To prove prejudice under the Strickland standard, Stock "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 Whalen made no errors that prejudiced Stock. Whalen's representation aided Stock in obtaining a favorable plea and registering appropriate motions in the record. While the dismissal of Stock's appeal could be construed as prejudicing Stock, Whalen appropriately took this action following his review of the Fifth Circuit's decision in Corona. Because Corona decided the issues Stock raised on appeal, the pursuit of his appeal to fruition would not have assisted Stock. Finally, Stock could not be said to have been prejudiced by Whalen's representation because Stock received a minimum 37 month sentence for count one and a mandatory 60 month sentence for count two. The Court, therefore, finds that Stock was not prejudiced by Whalen's representation.
III. CONCLUSION
For the foregoing reasons, petitioner's motion to vacate, set aside, or correct sentence pursuant to Title 28, United States Code, Section 2255 is DENIED WITH PREJUDICE.