Opinion
Civil No. 03-245 ADM, Criminal No. 01-281 ADM/AJB
October 7, 2003
Patrick M. Vizenor, for pro se
Andrew R. Winter, Esq., Minneapolis, Minnesota, for Respondent United States of America
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This matter is before the undersigned United States District Court Judge on Petitioner Patrick Vizenor's ("Petitioner") Motion to Vacate, Set Aside, or Correct Sentence [Docket Nos. 1, 38] pursuant to 28 U.S.C. § 2255. Petitioner alleges as grounds for post-conviction relief (1) a violation of his Sixth Amendment right to effective assistance of counsel, (2) a violation of his due process rights, specifically that his prosecution was based on manufactured evidence, and (3) the unconstitutionality of 21 U.S.C. § 841 and 846 as exceeding Congress' legislative jurisdiction.
The Government objects to Petitioner's Motion, asserting that Petitioner fails to satisfy the standard set forth in Strickland v. Washington 466 U.S. 668 (1984), and that his claims are otherwise without merit For the reasons set forth below, Petitioner's Motion is denied.
II. BACKGROUND
On November 30, 2001, Petitioner pled guilty to Count 1 of the Indictment charging him with knowingly and intentionally attempting to manufacture in excess of 50 grams of methamphetamine, in violation of 21 U.S.C. § 841(a)(1) (b)(1)(A), 846. See Indictment [Docket No. 1]. Petitioner pled guilty with the understanding that the minimum sentence he could receive was ten years and the maximum was a life sentence. See Plea Agreement and Sentencing Stipulations ("Plea Agreement") at 2 [Docket No. 35]. Petitioner further understood that the application of the Sentencing Guidelines is a matter that falls solely within the Court's discretion. Id. at 3. In exchange for the plea of guilty the prosecution agreed to dismiss the remaining count against Petitioner and to forego its right to file 21 U.S.C. § 851 sentencing enhancements. Id. at 2. Pursuant to the agreement, Count 2 of the Indictment, Felon in Possession of Firearms, was dismissed. See Judgment/Statement of Reasons at 1 [Docket No. 37].On March 15, 2002, Petitioner was sentenced to a term of imprisonment of 135 months, followed by a supervised release term of five years.
III. DISCUSSION
A prisoner may bring a motion under 28 U.S.C. § 2255 to vacate, set aside, or correct a sentence on the ground the sentence was imposed in violation of the United States Constitution or federal statutory laws. The requirement of an evidentiary hearing to develop factual issues raised in a § 2255 motion is subject to the statutory qualification that the files and records of the case may be sufficient to dispose of the motion where they "conclusively show that the prisoner is entitled to no relief." Lindhorst v. United States, 585 F.2d 361, 364 (8th Cir. 1978) (citing Cain v. United States, 271 F.2d 337, 338 (8th Cir. 1959)). No evidentiary hearing is required unless Petitioner alleges facts which, if true, entitle him to relief.Woods v. United States, 567 F.2d 861, 863 (8th Cir. 1978); see also Pittman v. Warden. Pontiac Correctional Ctr., 960 F.2d 688, 691 (7th Cir. 1992) (explaining that a § 2255 petitioner is not entitled to an evidentiary hearing if he does not allege facts that, if proven, would entitle him to relief). A petitioner seeking post-conviction relief bears the burden of establishing the need for an evidentiary hearing. United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
A. Waiver
As an initial matter, Petitioner specifically waived his rights to appeal his conviction and to bring a § 2255 Motion. See Plea Agreement at 4-5. He contends, however, that the waiver is invalid for purposes of asserting a claim of ineffective assistance of counsel. While some appeal waivers have been found to be unenforceable where prisoners allege defective representation in negotiating the plea agreement or the waiver itself, a contractual waiver of the right to appeal or collaterally attack the conviction may still preclude an ineffective assistance claim that in actuality is an attack on the sentence. United States v. Cockerham 237 F.3d 1179, 1183-87 (10th Cir. 2001) (citing several cases rendering this distinction).
In the instant Motion, Petitioner challenges his counsel's advice to accept an agreement containing a waiver of these rights. However, at his Change of Plea Hearing, Petitioner acknowledged to the Court multiple times that he did in fact understand that he was giving up the significant rights of appeal and collateral attack in order to secure the Plea Agreement. See Change of Plea Tr. at 14-16 [Docket No. 44]. Although the Court doubts Petitioner's ability to bring these claims, his substantive allegations will be addressed nevertheless.
B. Ineffective Assistance of Counsel
Petitioner's primary argument for vacation or reduction of his sentence is that he received ineffective assistance of counsel during the plea and sentencing phases of his case. In a lengthy memorandum in support of his Motion, he sets forth various reasons he believes his representation was legally inadequate.
To establish a claim of ineffective assistance of counsel in violation of the Sixth Amendment, a petitioner must fulfill the "heavy burden" of proving both deficient representation and prejudice to his defense. Brown v. United States, 311 F.3d 875, 877, 878 n. 4 (8th Cir. 2002) (citingStricMandv. Washington 466 U.S. 668, 687 (1984) and United States v. Apfel 97 F.3d 1074, 1076 (8th Cir. 1998)). Prejudice is shown by proof of "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Apfel 97 F.3d at 1076 (internal quotation omitted). The proper measure of attorney performance is "reasonableness under prevailing professional norms."Strickland, 466 U.S. at 688. Judicial review of counsel's performance must be highly deferential. Id. at 689. There is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. "The purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance necessary to justify reliance on the outcome of the proceeding." Id. at 691-692.
1. Weapons Enhancement
First, Petitioner asserts his counsel was ineffective for advising him to accept the Plea Agreement, which included stipulating to a firearms enhancement. See Plea Agreement at 3. Petitioner has failed to demonstrate that his counsel's performance was deficient. A petitioner bears the burden of showing how alleged errors were not, in the context of his particular circumstances, a reasonable strategic decision. Strickland, 466 U.S. at 690. In this case, Petitioner was charged with two offenses. Petitioner benefited from the Plea Agreement, including the prosecution's concession to the dismissal of Count 2 of the Indictment and foregoing its right to file sentencing enhancements under 21 U.S.C. § 851. These enhancements could have raised the applicable mandatory minimum to twenty years, instead of the ten-year minimum specified in the Plea Agreement.See 21 U.S.C. § 841(b)(1)(A). Therefore, Petitioner can establish neither deficient performance nor actual prejudice.
2. Theoretical Yield and Failure to Call Expert Witnesses
Petitioner asserts that his counsel erred in not opposing the government's finding that the precursor materials confiscated from his home and business would have been sufficient to produce 100 to 300 grams of methamphetamine. Additionally, he complains of his counsel's failure to call an expert witness to challenge these figures. However, at his Change of Plea hearing Petitioner stipulated that 100 grams to 300 grams was an adequate estimation of the theoretical yield of the chemicals seized by the police. See Change of Plea Tr. at 27 [Docket No. 44]. Furthermore, Petitioner's counsel had agreed to find an expert to challenge the validity of the yield claim before the plea bargain was accepted. After securing the plea arrangement there was no reason to continue pursuing expert testimony on yield projections. Again, Petitioner offers no proof that he was prejudiced, as opposed to benefited, by his attorney's advice and negotiation of the Plea Agreement, through which he received credit for acceptance of responsibility and a sentence at the low end of the guideline range. See Sentencing Tr. at 8 [Docket No. 45]; Plea Agreement at 3.
3. Conflict of Interest
Prior to entering this guilty plea, Petitioner claims he advanced $10,000 to his counsel to be used in hiring experts. Petitioner now asserts that his counsel kept the money without retaining any expert assistance and thus had a conflict between his pecuniary interest and his duty to Petitioner. Petitioner asks for the return of the sum of money advanced to his attorney. This relief is not the type that can be granted under 28 U.S.C. § 2255, which addresses possible defects in the sentences imposed on criminal defendants, not relief from financial disputes with regard to lawyer's fees.
Regarding the alleged conflict of interest, in United States v. Reed, 179 F.3d 622, 624 (8th Cir. 1999), the court held that a Defendant bears the burden of showing that the conflict adversely affected the lawyer's performance. Petitioner offers no proof that he was harmed, rather than advantaged by his counsel's advice to accept the government's concessions and therefore cannot establish that the purported conflict rose to the level of ineffective assistance of counsel.
C. Due Process
In his initial supporting memorandum, Petitioner alleges a local law enforcement official violated Petitioner's due process rights by fabricating evidence to secure search warrants and initiate a state prosecution. However, Petitioner does not contest that this issue was raised and ruled upon in a hearing before Wright County District Judge Bruce R Douglas, who rejected his allegations. See Government's Mem. in Response Ex. 1 (Wright County Court Order). Further, he concedes in his reply memorandum that the due process claim "has no bearing on the petitioner's sentence," and thus is not an appropriate challenge in the present Motion. Traverse at 6 [Docket No. 55].
D. Unconstitutionality
Petitioner next argues that 21 U.S.C. § 841 and 846 are unconstitutional as exceeding Congress' legislative jurisdiction. Relying on the Supreme Court's holdings in United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrisoa 529 U.S. 598 (2000), he contends Congress had no authority to enact these narcotics statutes.
The Eighth Circuit has explicitly found the Controlled Substances Act to be a constitutional exercise of Congress' commerce clause powers, notwithstanding Lopez and Morrison United States v. Davis, 288 F.3d 359, 362 (8th Cir. 2002). Therefore, Petitioner's challenge to this statute's validity fails.
IV. CONCLUSION
Based on the foregoing, and all the files, records, and proceedings herein, IT IS HEREBY ORDERED that Petitioner's Motion to Vacate, Set Aside, or Correct his Sentence pursuant to 28 U.S.C. § 2255 [Docket Nos. 1, 38] is DENIED.