Opinion
5:19-CR-00263-FL-1 5:22-CV-00141-FL
08-31-2023
Markell Antonio Watson, Petitioner, v. United States, Respondent.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge
Petitioner Markell Antonio Watson, proceeding under 28 U.S.C. § 2255, seeks to vacate the 120-month sentence he received after pleading guilty to distribution of a quantity of crack. Mot. Vacate, D.E. 44. He brings four claims for relief, each alleging that his attorney provided him constitutionally deficient assistance. First, Watson claims that his attorney failed to file an appeal. Id. at 4. He next argues that his lawyer did not adequately investigate whether he was a career offender. Id. at 5. Third, Watson maintains that his counsel should have moved to dismiss the charge against him. Id. at 6. And finally, he contends that his attorney should have objected to a question the United States asked the court during his sentencing hearing. Id. at 9.
Unless otherwise noted, docket citations refer to documents in Watson's criminal case, No. 5:19-CR-00263-FL-1.
The court referred this matter to the undersigned to issue a Memorandum and Recommendation (“M&R”) on Watson's motion. After conducting an evidentiary hearing, reviewing the docket, and considering the parties' arguments, the undersigned concludes that Watson is not entitled to the relief he seeks. For the reasons stated below, Watson has not shown that his attorney's performance violated his right to counsel. Thus, the undersigned recommends that the court deny Watson's motion to vacate (D.E. 44) and grant the government's motion to dismiss (D.E. 48).
I. Background
In November 2018, the Raleigh Police Department's Gang Suppression Unit received a tip from a confidential source that Watson was engaged in “drug activities[.]” Presentence Investigation Report (“PSR”) ¶ 6, D.E. 30. That same day, the confidential source bought less than a quarter of a gram of crack cocaine from Watson in Raleigh. Id. Nothing came of this drug sale until the following January, when Watson was arrested for outstanding state warrants during a scheduled probation meeting. Id. ¶ 7. While Watson was in state custody, a federal grand jury indicted him for distributing a quantity of crack. See Indictment at 1, D.E. 1. A month later, he was transferred to federal custody.
Before Watson's arraignment, the court appointed an attorney, Kenneth F. Crow, to represent him. At the arraignment, Watson pleaded guilty pursuant to a plea agreement. Arraignment Tr. at 20:10-12, D.E. 52. As part of that agreement, Watson agreed to waive his right to appeal or otherwise challenge his conviction and sentence, except for claims of ineffective assistance of counsel or prosecutorial misconduct not known to him at the time of his guilty plea. See Mem. Plea Agreement at 1, D.E. 25. He also said-under oath-that he had discussed his plea agreement with Crow and was satisfied with his advice and counsel. Arraignment Tr. at 13:2514:2, 18:7-11.
The next month, the United States Probation Office filed its draft PSR. See Draft PSR, D.E. 27. Watson objected to the draft PSR's finding that he was a career offender, see Watson PSR Objs., D.E. 29, but the final PSR also reflected this conclusion, see PSR ¶ 54. The Probation Office determined that Watson qualified as a career offender because he “has at least two prior felony convictions of either a crime of violence or a controlled substance offense[.]” Id. Watson committed the first predicate offense-attempted robbery with a dangerous weapon-when he was 16. See id. ¶ 13. Roughly nine years later, Watson was convicted for selling cocaine. See id. ¶ 17. Thus, the Probation Office recommended a 20-point enhancement to Watson's base offender level of 12 under the United States Sentencing Guidelines. Id. After making a handful of other adjustments, the Probation Office found that Watson's total offense level was 29 and that he his criminal history category was VI. Id. ¶¶ 57, 59. Given these factors-and considering the statutory maximum for Watson's offense-the Guidelines recommended a sentence of 151 to 188 months in prison. Id. ¶ 59.
Watson also lodged an objection arguing that he did not commit an offense in the PSR, but he abandoned this objection at sentencing. See Sentencing Tr. at 4:16-20, D.E. 43.
The court adopted the PSR in full and overruled Watson's objection to his classification as a career offender. See Statement of Reasons at 1, D.E. 41; Sentencing Tr. at 5:1, D.E. 43. Despite Watson's Guidelines range, Crow asked the court to consider a variant 81-month sentence because Watson was 16 when he committed the attempted robbery, and his drug offenses involved a small amount of contraband. See Sentencing Tr. at 14:5-19.
At sentencing, Crow conceded that binding caselaw classifies Watson as a career offender. See Sentencing Tr. at 2:25-3:4.
The court agreed in part-it sentenced Watson to 120 months' imprisonment and three years of supervised release. See id. at 19:19-21, 21:12-13. The government then asked the court whether it would impose the same sentence even if the career offender enhancement in the Sentencing Guidelines didn't apply. See id. at 23:14-16. The court stated that it would, noting that Watson's sentence would be “[n]othing short of 120 months.” See id. at 23:17-18.
After being advised of his appellate rights, Watson said that he wanted to appeal his sentence. See id. at 24:9. The court then instructed Crow to file an appeal on Watson's behalf. See id. at 24:10-14. After a recess, however, Crow returned to the courtroom. He told the court that he had spoken with Watson, who decided that he no longer wished to appeal. See id. at 24:21-25. The court was satisfied that Crow had discharged his duty and offered to enter a written order explaining that Watson changed his mind. See id. at 25:6-12. But Crow thought it unnecessary. See id. at 25:13-14.
Watson never appealed. He did, however, move to vacate his sentence under 28 U.S.C. § 2255 in April 2022. In his motion to vacate, Watson contends that Crow provided him ineffective assistance of counsel for four reasons. First, he contends that Crow did not file an appeal despite Watson's instruction to do so. Mot. Vacate at 4. Second, he claims that Crow failed to investigate whether his prior convictions classified him as a career offender. Id. at 5. Watson's third claim for relief alleges that Crow did not put the government's case to a meaningful test because he did not move to dismiss Watson's indictment. Id. at 6-7. And finally, Watson maintains that Crow should have objected when the government asked whether the court would still impose the 120-month sentence in the absence of the career offender Guidelines. Id. at 9.
In June 2023, the undersigned held an evidentiary hearing to assess Watson's claim that Crow failed to file a notice of appeal. At the hearing, both Watson and Crow discussed the conversation they had after sentencing.
Watson, who was represented by new counsel, took the stand first. He explained that, after he received his sentence, Crow asked to meet with him in a holding cell. See Evid. Hr'g Tr. at 8:14-16. During this meeting, Watson claimed, Crow told him that filing an appeal was a bad idea because he could receive a higher sentence. See id. at 8:17-19. And although Watson was unhappy with his 120-month sentence, he ultimately told Crow not to file a notice of appeal. See id. at 10:17-19; see also Mot. Vacate at 1 (“I decided, based on [Crow's] advice, not to pursue a direct appeal.”). Watson testified that Crow never spoke to him about an appeal after this meeting. Evid. Hr'g Tr. at 22:13-16. Crow did, however, send him a letter shortly thereafter that contained the court's judgment and advised Watson that he had 14 days from the date that the judgment was entered to appeal. See id. at 24:2-9. The letter also told Watson to contact Crow's office if he wanted to file an appeal. See id. at 24:10-19; see also Letter from Kenneth F. Crow to Markell Antonio Watson (Sept. 20, 2021) (on file with the court). But Watson never reached out. See id. at 24:20-23.
Crow took the stand next. He testified that, when he arrived at the holding cell, Watson was upset about his sentence. See id. at 37:14. And while Crow shared Watson's frustration, he explained that the sentence was below the Guidelines range and that Watson could receive a harsher punishment if an appeal led to a new sentencing hearing. See id. at 37:14-25. Crow claimed that, by the end of this short conversation, Watson had changed his mind about filing an appeal. See id. at 38:14. And although Crow could not remember Watson's exact words, he testified that there were no ambiguities-Watson no longer wanted to challenge his sentence. See id. at 40:1-8, 45:19-21.
Crow then asked the United States Marshals to keep Watson at the courthouse so he could explain his change of heart to the court. See id. at 38:22-39:1. But when Crow returned to court later that day, the Marshals had taken Watson away. See id. at 39:1-4. Crow then went before the court and explained the situation. See id. at 39:8-12.
At the evidentiary hearing, Crow's timekeeping records were admitted into evidence. Those records-which Crow authored the same day that Watson was sentenced-corroborate Crow's testimony. See Timekeeping Records at 33-34 (on file with the court). They note that Watson entered an oral notice of appeal during his sentencing hearing. Id. But the records also indicate that, after Crow and Watson met in the holding cell, “[Watson] advised [Crow] to notify the court that he did NOT want to give notice of appeal.” Id. at 34.
II. Discussion
Each of Watson's requests for relief contends that Crow provided ineffective assistance of counsel. The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. An attorney violates a defendant's right to assistance of counsel if he fails to provide adequate legal assistance. Strickland v. Washington, 466 U.S. 668, 686 (1984). The right to counsel extends to all critical stages of a criminal proceeding, including plea negotiations, trial, sentencing, and appeal. See, e.g., Missouri v. Frye, 566 U.S. 134, 140 (2012); Lafler v. Cooper, 566 U.S. 156, 164-65 (2012); Glover v. United States, 531 U.S. 198, 203-04 (2001).
In Strickland, the Supreme Court held that a petitioner must satisfy a two-pronged test to establish an ineffective assistance claim. 466 U.S. at 686-87. First, the petitioner must show that his attorney's performance fell below an objective standard of reasonableness. Id. at 688. In assessing reasonableness, courts must be “highly deferential” to counsel's performance and must make every effort to “eliminate the distorting effects of hindsight”-especially when the defendant voluntarily enters into a plea bargain. Id. at 689; see also Loc Huu Bui v. United States, Nos. 5:10-CR-205-FL & 5:13-CV-258-FL, 2014 WL 582954, at *7 (E.D. N.C. Feb. 13, 2014) (Flanagan, J.) (“[H]indsight judgment of counsel's performance in securing early resolution of a case should be viewed with additional caution.”) (adopting Magistrate Judge's M&R). Thus, the court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance[.]” Strickland, 466 U.S. at 689.
Second, the petitioner must show that he was prejudiced by his attorney's unreasonable performance. Id. at 693. To establish prejudice, a petitioner must show that “there 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 one “sufficient to undermine confidence in the outcome.” Id. Additionally, the difference in outcome as a result of the unprofessional errors must have harmed the petitioner. Id. at 693.
Watson maintains that Crow rendered ineffective assistance of counsel for four reasons: First, he failed to file a notice of appeal. Second, he did not adequately investigate whether Watson's prior felony offenses qualified him as a career offender under the Guidelines. Third, he failed to put the government's case to a meaningful test because he did not move to dismiss the indictment. And finally, he neglected to object when the government asked the court whether it would impose the same sentence if the career offender Guidelines did not apply. After reviewing the evidence, the undersigned concludes that none of Watson's arguments have merit.
A. Watson Withdrew His Instruction to Appeal
Watson first claims that Crow should have filed a notice of appeal. Mot. Vacate at 4. Even though Watson told Crow that he was no longer interested in appealing shortly after the sentencing hearing, he maintains that Crow should have filed a notice of appeal as soon as the court asked him to. Id.
The Supreme Court has “long held that a lawyer who disregards specific instructions from the defendant to file a notice of appeal acts in a manner that is professionally unreasonable.” Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000) (citing Rodriquez v. United States, 395 U.S. 327 (1969)). If an attorney “fails to follow his client's unequivocal instruction” to appeal, the court presumes the defendant has been prejudiced even if the appeal would not have succeeded. United States v. Poindexter, 492 F.3d 263, 265, 268 (4th Cir. 2007). This is because the failure to file the notice leads to a forfeiture of the appellate proceeding. Id.
Crow did not err by failing to file a notice of appeal. Although Watson told the court that he wanted to appeal at sentencing, he admits that he changed his mind after speaking with his attorney in the holding cell. See Mot. Vacate at 4; Evid. Hr'g Tr. at 10:17-19. Watson's change of heart discharged Crow of his duty to file the notice of appeal. See, e.g., Tidd v. United States, Nos. 7:10-CR-00043-F-1 & 7:12-CV-00106-F, 2015 WL 290626, at *7 (E.D. N.C. May 5, 2015) (concluding that an attorney did not provide ineffective assistance for failure to file an appeal when his client changed his mind about appealing).
The letter that Crow wrote Watson and Crow's timekeeping records also show that Crow provided Watson with effective assistance. The letter reminded Watson of his appellate rights and instructed him to contact Crow's office if he changed his mind once more. See Letter at 1. And the timekeeping records indicate that “[Watson] advised [Crow] to notify the court that he did NOT want to give notice of appeal.” See Timekeeping Records at 34. Taken together, this evidence- and Watson's own statements-compel the conclusion that Watson instructed Crow not to appeal. Thus, the court should deny Watson's motion to vacate on these grounds.
B. Crow Adequately Investigated Watson's Career Offender Status
Watson next contends that Crow “failed to investigate whether the prior state convictions that were used to elevate his advisory Guideline range” qualified as predicate offenses. Mot. Vacate at 5.
Watson's argument fails for two reasons: First, Crow did challenge Watson's career offender status. See Watson PSR Objs. at 1 (“Watson now contends that he has only one (1) qualifying predicate conviction and that he does NOT qualify as a Career Offender.”); Sentencing Tr. at 4:10-15 (conceding that Watson likely qualifies as a career offender but preserving the objection). But the court overruled this objection. See Sentencing Tr. at 5:1. Because Crow followed Watson's instruction to challenge his career offender status, Watson cannot now argue that Crow rendered ineffective assistance. See, e.g., Campbell v. Polk, 447 F.3d 270, 283 (4th Cir. 2006) (“[The defendant's attorneys] acted reasonably when they followed their client's firm instructions[.]”); Strickland, 466 U.S. at 691 (“The reasonableness of counsel's actions may be determined or substantially influenced by the defendant's own statements or actions.”).
This argument also fails because Watson is, in fact, a career offender. Watson does not contest that one of his prior convictions, selling cocaine, qualifies as a predicate offense under the Guidelines. But he contends that the other relevant conviction, attempted robbery with a dangerous weapon, cannot serve as a predicate offense because he was 16 when he was convicted. See Mot. Vacate at 5.
The Guidelines explain that “[a] defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.” U.S.S.G. §4B1.1(a). A conviction for attempted robbery with a dangerous weapon under North Carolina law falls within the Guidelines' definition for a “crime of violence[.]” See id. § 4B1.2(a); see also United States v. Hinton, 789 Fed.Appx. 956, 958 (4th Cir. 2019). And a felony is a crime punishable by more than one year of imprisonment. See 18 U.S.C. §3559(a).
The Guidelines go on to state that “[a] conviction for an offense committed prior to age eighteen is an adult conviction if it is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted[.]” U.S.S.G. § 4B1.2 app. note 1. Watson was convicted of attempted robbery with a dangerous weapon in 2009 in North Carolina state court. See PSR ¶ 13. He was 16 when he was arrested and convicted. See id. In 2009, North Carolina prosecuted 16-year-old felony offenders as adults. See N.C. Gen. Stat. § 7B-1604(a) (2009) (“Any juvenile, including a juvenile who is under the jurisdiction of the court, who commits a criminal offense on or after the juvenile's sixteenth birthday is subject to prosecution as an adult.”). And Watson served nearly four-and-a-half years in prison for the offense. See PSR ¶ 13.
The Supreme Court has held that “commentary in the Guidelines Manual that interprets or explains a guideline is authoritative unless it violates the Constitution or a federal statute, or is inconsistent with, or a plainly erroneous reading of, that guideline.” Stinson v. United States, 508 U.S. 36, 38 (1993).
Because Watson committed a felony crime of violence and was charged as an adult in North Carolina court, his conviction for attempted robbery with a dangerous weapon qualifies as a predicate offence under the Guidelines. His argument to the contrary is meritless. The court should therefore deny Watson's motion to vacate his sentence because Crow failed to investigate this question further.
C. Crow Did Not Provide Ineffective Assistance by Failing to File a Motion to Dismiss
Watson also alleges that Crow provided ineffective assistance because he did not put the government's case through “a meaningful adversarial testing[.]” Mot. Vacate at 6. In Watson's view, Crow should have moved to dismiss the indictment before Watson pleaded guilty because distribution of less than a quarter of a gram of crack cocaine is not a federal felony. Id. at 6-7.
Watson also contends that Crow failed to put the government's case to a meaningful adversarial test by failing to challenge whether his conviction for attempted assault with a dangerous weapon qualifies as a predicate offense for his career offender status. Mot. Vacate at 7. For the reasons discussed above, however, that argument holds no water.
The Supreme Court has held that a lawyer provides ineffective assistance of counsel if he “entirely fails to subject the prosecution's case to meaningful adversarial testing[.]” United States v. Cronic, 466 U.S. 648, 659 (1984). When this occurs, a petitioner need not prove that he was prejudiced by his attorney's action because the constructive denial of counsel “makes the adversary process itself presumptively unreliable.” Id.
Like Watson's previous argument, this claim fails for two reasons. First, this challenge is barred by Watson's collateral attack waiver. His plea agreement precludes him from collaterally attacking his conviction or sentence on any ground, subject to certain exceptions. As is relevant here, Watson may challenge his conviction or sentence for ineffective assistance that he did not know about when he pleaded guilty. Mem. Plea Agreement at 1.
The Fourth Circuit has held that the waiver of a defendant's right to appeal or otherwise attack his sentence may be enforced so long as “the waiver is valid and . . . the issue being appealed is within the scope of the waiver.” United States v. Block, 408 F.3d 162, 168 (4th Cir. 2005). A waiver's validity “depends on whether the defendant knowingly and intelligently agreed to waive the right to appeal.” Id. at 169. When Watson entered his plea, he testified that he knew he was giving up his right to appeal or collaterally attack his sentence subject to the ineffective assistance exception discussed above. Arraignment Tr. at 18:21-25. Thus, Watson is bound by the waiver.
Watson claims that Crow rendered ineffective assistance because he failed to file a motion to dismiss. Mot. Vacate at 6. But even if Crow's decision not to file the motion amounted to ineffective assistance, Watson would have known about that decision before he pleaded guilty. Thus, by signing the plea agreement, Watson waived his right to challenge the decision. Cf. Milam v. United States, Nos. 5:20-CV-00079-FL-1 & 5:17-CR-00265-FL-1, 2021 WL 1998243, at *5 n.4 (E.D. N.C. May 19, 2021) (Flanagan, J.) (“Where petitioner knew, at the time of his guilty plea, about counsel's decision not to file a motion to suppress the statements he made to investigators, any ineffective assistance of counsel claim predicated upon this decision is barred by the collateralattack waiver.”).
Second, and more importantly, Crow did not provide ineffective assistance because the legal theory underlying Watson's proposed motion to dismiss lacks legal support. Watson maintains that the quantity of crack cocaine he distributed-0.24 grams-is not enough to violate federal law. Mot. Vacate at 6-7. Watson is incorrect.
The statute under which Watson was convicted, 28 U.S.C. § 841(a)(1), makes it illegal to “distribute . . . a controlled substance[.]” And under § 841(b)(1)(C), anyone who is found guilty of distributing crack cocaine may be sentenced to up to 20 years in prison. Neither statute specifies a minimum quantity of drugs that must be distributed to violate federal law. That is because there is none-while threshold drug quantities can be an element of an offense when the government seeks certain enhanced penalties under § 841(b), there is no quantity of crack cocaine too scarce to implicate § 841(a) or § 841(b)(1)(C). See United States v. Dorlouis, 107 F.3d 248, 252 (4th Cir. 1997) (“To sustain a conviction under § 841, the government does not have to prove that any specific quantity of drugs was involved because quantity is not a substantive element of the crime.”) (citation omitted); see also United States v. Promise, 255 F.3d 150, 156-57 (4th Cir. 2001) (en banc) (concluding that drug quantity is only an element of an offense under § 841 when a defendant is charged with an aggravated drug trafficking offense).
Watson was not charged with an aggravated drug trafficking offense for which the quantity of drugs distributed must be established beyond a reasonable doubt. Instead, he was charged with distribution of a quantity of crack cocaine. See Indictment at 1. In this circumstance, there is no minimum quantity necessary to make Watson's conduct a federal crime. See 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C); Dorlouis, 107 F.3d at 252. Had Crow moved to dismiss on Watson's theory, the motion would have been frivolous. And Crow's failure to file a frivolous motion cannot constitute ineffective assistance under Strickland or Cronic. Thus, the court should deny Watson's motion to vacate on these grounds.
D. Crow Did Not Provide Ineffective Assistance by Failing to Object to the Government's Request for an Alternative Variant Sentence
Finally, Watson contends that Crow should have lodged an objection at the sentencing hearing when the government asked whether the court would still impose the same 120-month sentence if the career offender Guidelines did not apply. Mot. Vacate at 9. He believes that Crow's failure to object renders any potential vacatur of his sentence useless because the court will impose the same sentence again. See id.
Setting Strickland's reasonableness prong aside, Watson has not shown that “there is a reasonable probability that . . . the result of the proceeding would have been different” had Crow objected to the government's question. Id. at 694. As discussed above, the court (correctly) overruled Watson's career offender objection and determined that his Guideline range was 151 to 188 months. See Sentencing Tr. at 3:20-21, 5:1. The court nevertheless granted Watson's motion for a downward variance, sentencing him to 120 months. See id. at 19:19-24. The government then asked the court whether it would impose the same sentence if the career offender Guidelines did not apply, and the court confirmed that it would. See id. at 23:14-18. The mere fact that the government asked this question did not affect the outcome of Watson's sentencing hearing. Either way, the result would be the same-Watson was sentenced to 120 months' imprisonment. Thus, Crow's decision not to object to the government's request had no bearing on Watson's sentence.
What's more, courts in the Fourth Circuit regularly announce alternative variant sentences to “insulate a sentence from harmless error review[.]” United States v. Freeman, 24 F.4th 320, 332 (4th Cir. 2022) (citation omitted); see also Garner v. United States, Nos. 7:16-CR-116-D-19 & 7:20-CV-158-D, 2022 WL 3365058, at *4 (E.D. N.C. Aug 15, 2022) (collecting cases). Although these alternative variant sentences are not always binding on review, see Freeman, 24 F.4th at 332, Watson offers no authority suggesting that courts cannot impose them. So even if Crow had objected to the government's request, it is unclear what grounds his objection could have rested on.
At bottom, Watson has failed to establish that an objection to the court's alternative variant sentence would have changed the outcome of his sentencing hearing. And he has not shown that an objection would have any basis in law. Thus, the court should deny his motion to vacate based on Crow's failure to object to the government's request for an alternative variant sentence.
III. Conclusion
For the reasons discussed above, the court should deny Watson's motion to vacate his sentence (D.E. 44) and grant the government's motion to dismiss (D.E. 48).
The Clerk of Court must serve a copy of this M&R on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.