Opinion
No. 1:10-CR-13 No. 1:11-CV-337
07-27-2015
DENISE WEEKS-TOLMAN, Petitioner, v. UNITED STATES OF AMERICA, Respondent
MEMORANDUM & JUDGMENT ORDER
Pro se Petitioner Denise Weeks-Tolman ("Petitioner") timely filed a motion to vacate, set aside, or correct her sentence pursuant to 28 U.S.C. § 2255 (Court File No. 644). The government responded in opposition to Petitioner's § 2255 motion (Court File No. 650). Petitioner contends that: (1) the Court lacked jurisdiction over her case; (2) counsel rendered constitutionally ineffective assistance; (3) petitioner is actually innocent (this issue is raised in Petitioner's Memorandum at pp. 645,646); and (4) petitioner is entitled to a reduction in sentence under 18 U.S.C. § 3582 (See generally Court File No. 644, § 2255 Motion; R. 645, Memorandum in Support of § 2255 Motion).
The underlying criminal case that gave rise to this matter is United States of America v. Denise Weeks-Tolman, Case No. 1:10-cr-13, filed on January 26, 2010. The Court has determined that the motions, together with the files and record of this case, conclusively show Petitioner is entitled to no relief under 28 U.S.C. § 2255. Accordingly, an evidentiary hearing is unnecessary and the Court DENIES Petitioner's motion (Court File No. 644).
I. FACTUAL AND PROCEDURAL HISTORY
In 2003, law enforcement agents began investigating a conspiracy involving the trafficking of methamphetamine from Atlanta, Georgia, to Chattanooga, Tennessee. (Final Presentence Investigation Report ("Final PSR") at ¶ 45). Because changes were made to petitioner's criminal history calculations between the first revised PSR (dated September 30, 2010), and the final PSR (dated November 1, 2010), the two documents will be referred to as "First Revised PSR" and "Final PSR" for clarity.
During the course of the investigation, agents identified, arrested, and interviewed several co-conspirators, who named petitioner as a source of methamphetamine for customers in Georgia and Tennessee (Court File No. 288, Plea Agreement at ¶ 5). Specifically, methamphetamine distributors from McMinn County, Tennessee, informed agents that they had purchased large amounts of methamphetamine from petitioner and then redistributed it in Tennessee (Id). Additionally, a mobile phone recovered from one of the co- conspirators contained a photograph of petitioner lying on top of a large quantity of cash which, the co-conspirator explained, was proceeds from methamphetamine trafficking activities (Id).
On July 24, 2008, law enforcement agents interviewed petitioner regarding her role in the conspiracy (Id). Petitioner admitted to receiving, possessing, and distributing large quantities of methamphetamine (Id). Petitioner explained that she had assisted one of her co-conspirators in distributing a pound of methamphetamine to another co-conspirator (Id). Petitioner also confessed that she had traveled with another co-conspirator on multiple occasions to pick up a total of three and one-half pounds of methamphetamine, which she then distributed to others (Id). Petitioner's admissions were corroborated by statements from co-conspirators (Id).
Petitioner was subsequently indicted on January 26, 2010 (Court File No. 1). She was charged, along with 23 co-defendants, with conspiring to distribute at least fifty grams of methamphetamine actual and five hundred (500) or more grams of a mixture and substance containing a detectable amount of methamphetamine, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 846, 841(b)(1)(A) (Count One).
On April 29, 2010, petitioner signed a written plea agreement, in which she admitted that she had "knowingly joined and participated in [a] conspiracy" to distribute and possess with intent to distribute methamphetamine (Court File No. 288, Plea Agreement at ¶ 4). Petitioner specifically acknowledged that, as a result, she faced "imprisonment for a term of no less than ten (10) years and up to life." (Id. at ¶ 1). Petitioner agreed that "no promises ha[d] been made by any representative of the United States to [petitioner] as to what the sentence [would] be in [her] case." (Id. at ¶ 12).
On May 25, 2010, during a re-arraignment before Magistrate Judge Lee, petitioner stated under oath that she had adequate time to discuss her case with her attorney, was satisfied with her attorney's representation, understood the legal rights she was giving up by pleading guilty, and was doing so voluntarily (Court File No. 626, Re-arraignment Hearing, Tr. at 14-16, 24). The magistrate judge confirmed that the plea agreement constituted petitioner's full agreement with the United States and that no "promise or assurance . . . not contained in the plea agreement" had been made to petitioner to "persuade" her to plead guilty (Id. at 18.) Petitioner was then asked whether, aside from the plea agreement, "anyone promised or suggested that [she would] receive a lighter sentence or any other form of leniency if [she] plead[ed] guilty." (Id. at 23.) Petitioner replied, "No your Honor." (Id. at 24.)
After the indictment was read aloud, the magistrate judge explained the elements of the offense, and petitioner swore that she understood them and wished to plead guilty (Id. at 24-26). The United States stated petitioner's sentencing exposure, noting that the statute required a minimum sentence of ten years' imprisonment and permitted a maximum sentence of life imprisonment (Id. at 26). Petitioner reiterated that, knowing her possible maximum sentence and having discussed with counsel the likely application of the Sentencing Guidelines to her case, she nonetheless wanted to plead guilty (Id. at 31-32). Petitioner also indicated that she understood that the sentence ultimately imposed might "be different from any estimate of the sentence that [her] attorney may have given" her and that her prior convictions might "increase [her] sentence under the sentencing guidelines." (Id. at 32-33). Petitioner confirmed that the factual basis set forth in the plea agreement was true and accurate and that she was pleading guilty because she was in fact guilty. (Id. at 36-37). Accordingly, the Court accepted her plea (Id. at 37; Court File No. 308, Report and Recommendation; Court File No. 359, Order).
A sentencing hearing was held on November 4, 2010. Using the 2009 version of the Guidelines, the probation officer calculated petitioner's base offense level as 34 based on her distribution of at least 2.052 kilograms of methamphetamine mixture: the one pound (453 grams) petitioner admitted to helping a co-conspirator distribute, and the three and one-half pounds (1,599 grams) she admitting to obtaining with a co-conspirator (Final PSR at ¶¶ 48, 50, 55). The probation officer then applied a three-level reduction for acceptance of responsibility, resulting in a total offense level of 31 (Id. at ¶¶ 61-64). The probation officer assessed petitioner five criminal history points for her prior convictions, plus two for being on probation when she committed her offense, placing her in criminal history category IV (First Revised PSR at ¶ 76.) Her advisory Guidelines range was thus 151 to 188 months imprisonment (Id. at ¶ 103.)
Petitioner, through counsel, objected to the probation officer's calculation of her criminal history category (Final PSR, Addendum at 1). Specifically, she objected to the two points added for being on probation during the commission of her offense, arguing that her involvement in the conspiracy had concluded in 2006 and that she had not been placed on probation until 2008 (Id). Petitioner also objected to the imposition of criminal history points for her prior misdemeanor convictions for giving a false birth date and possessing dangerous drugs (Id).
The probation officer declined to deduct the points assessed for the misdemeanor convictions (Id). However, the probation officer did note that the United States had confirmed that petitioner's involvement in the conspiracy had concluded in 2006 when petitioner was not yet on probation. (Id). Accordingly, the probation officer reduced petitioner's criminal history score to five points, placing her in criminal history category III. (Final PSR at ¶¶ 75-76). As a result, petitioner's advisory Guidelines range became 135 to 168 months (Id. at ¶ 102).
The Court accepted that revised calculation of petitioner's Guidelines range and, after considering the 18 U.S.C. § 3553(a) factors, sentenced petitioner to the bottom of that range—135 months imprisonment (R. 603, Courtroom Minutes; R. 607, Judgment at 2).
II. STANDARD OF REVIEW
A prisoner in federal custody may file a motion to vacate, set aside, or correct a sentence pursuant to 28 U.S.C. § 2255 "claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack." 28 U.S.C. § 2255(a). Relief under § 2255 is limited to: (1) errors involving lack of jurisdiction; (2) constitutional violations; and (3) those non-constitutional errors that constitute "fundamental defect[s] which inherently result[] in a complete miscarriage of justice." Reed v. Farley, 512 U.S. 339, 348-49 (1994) (quoting Hill v. United States, 368 U.S. 424, 428 (1962)); see also United States v. Addonizio, 442 U.S. 178, 185 (1979).
The petitioner bears the burden of establishing any claim asserted in the petition. See Bowers v. Battles, 578 F.2d 1, 5 (6th Cir. 1977); Mayes v. United States, 93 F. Supp. 2d 882, 886 (E.D. Tenn. 2000). This Court is collaterally reviewing the petitioner's claims. It is a "well-settled principle that to obtain collateral review relief a prisoner must clear a significantly higher hurdle than would exist on direct appeal." Fair v. United States, 157 F.3d 427, 430 (6th Cir. 1998). To satisfy this standard, a petitioner who procedurally defaults a claim and raises it for the first time on collateral review must show either that he has good cause for the default and would sustain actual prejudice for the default or that he is actually innocent of the charges. Bousley v. United States, 523 U.S. 614, 622 (1998).
In order to obtain relief under § 2255 for an alleged constitutional error, the record of the case must reflect a constitutional error of such significance that it had substantial and injurious effect or influence on the proceedings. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). To prevail on a § 2255 motion alleging a non-constitutional error, a petitioner must show a "fundamental defect in the proceedings which necessarily results in a complete miscarriage of justice or an egregious error violative of due process." Gall v. United States, 21 F.3d 107, 109 (6th Cir. 1994) (internal quotation marks omitted).
III. DISCUSSION
Petitioner presents four claims in her § 2255 motion: (1) the Court lacked jurisdiction over her case; (2) counsel rendered constitutionally ineffective assistance; (3) petitioner is actually innocent; and (4) petitioner is entitled to a reduction in sentence under 18 U.S.C. § 3582 (See generally Court File No. 644, § 2255 Motion; Court File No. 645, Memorandum in Support of § 2255 Motion). None of those claims satisfy § 2255's demanding standard.
A. The Court has jurisdiction in this case.
Petitioner contends that this "Court did not have jurisdiction of [petitioner] who was and is a resident of Marietta, Georgia." (Court File No. 644, § 2255 Motion at 4; Court File No. 645, Memorandum in Support of § 2255 Motion at 1-2.) However, petitioner was charged with and pleaded guilty to committing an offense against the United States, namely conspiring to distribute methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(b)(1)(A) (Court File No. 2, Indictment; Court File No. 288, Plea Agreement at ¶1). Accordingly, this Court has jurisdiction over this case pursuant to 18 U.S.C. § 3231.
To the extent that petitioner's claim can be construed as a challenge to venue, she has procedurally defaulted it by failing to assert the claim previously. See United States v. Grenoble, 413 F.3d 569, 573 (6th Cir. 2005) ("[O]bjections to defects in venue are usually waived if not asserted before trial.") In any event, venue was proper in this case because petitioner distributed methamphetamine to co-conspirators who resold that methamphetamine in the Eastern District of Tennessee. See United States v. Crozier, 259 F.3d 503, 519 (6th Cir. 2001) ("For drug conspiracies, venue is proper in any district where the conspiracy was formed or where an overt act in furtherance of the conspiracy was performed.").
B. Petitioner has not established that counsel was constitutionally ineffective.
A petitioner alleging ineffective assistance of counsel must satisfy the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1987). First, she must establish, by identifying specific acts or omissions, that counsel's performance was deficient and that counsel did not provide "reasonably effective assistance," id., as measured by "prevailing professional norms." Rompilla v. Beard, 545 U.S. 374, 380 (2005). Counsel is presumed to have provided effective assistance, and petitioner bears the burden of showing otherwise. Mason v. Mitchell, 320 F.3d 604, 616-17 (6th Cir. 2003); see also Strickland, 466 U.S. at 689 (a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that . . . the challenged action might be considered sound . . . strategy") (internal citation omitted).
Second, a petitioner must demonstrate "a reasonable probability that, but for [counsel's acts or omissions], the result of the proceedings would have been different." Strickland, 466 U.S. at 694. "An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 691; see also Smith v. Robbins, 528 U.S. 259, 285-86 (2000). If a petitioner fails to prove that she sustained prejudice, the Court need not decide whether counsel's performance was deficient. See United States v. Hynes, 467 F.3d 951, 970 (6th Cir. 2006) (holding that alleged "flaws" in trial counsel's representation did not warrant new trial where the claims, even if true, did not demonstrate that the jury would have reached a different conclusion).
Petitioner claims that her counsel was ineffective by (A) failing to accurately advise her about her sentencing exposure, (B) failing to object to an alleged breach of the plea agreement, and (C) failing to object to the PSR's criminal history calculation. (Court File No. 645, Memorandum in Support of § 2255 at 1-5.) None of those claims have merit for the following reasons:
1. Petitioner has not established that counsel failed to advise her of her potential sentence prior to pleading guilty.
Petitioner contends that counsel misadvised her that, if she pleaded guilty, she would be sentenced to only eighteen months imprisonment (Court file No. 645, Memorandum in Support of § 2255 Motion at 3-5). Petitioner also claims that she was unaware that her prior convictions could be used to increase her sentence (Id.). Those allegations, however, run contrary to petitioner's admissions during the plea hearing and in her plea agreement.
In the plea agreement, petitioner recognized that the "punishment for [her] offense [would be] imprisonment for a term of no less than ten (10) years and up to life." (Court File No. 288, Plea Agreement at ¶ 1.) Likewise, petitioner "acknowlege[d] that the sentencing determination [would] be based upon the entire scope of [her] criminal conduct, [her] criminal history, and pursuant to other factors and guidelines as set forth in the Sentencing Guidelines and the factors set forth in 18 U.S.C. § 3553." (Id. at ¶ 12.) When reminded of the statutorily-required ten-year minimum sentence during the plea hearing, petitioner swore she understood, that she had not been promised leniency, and that, knowing the penalty, she nonetheless wished to plead guilty (Court File No. 626, Rearraignment Hearing, Tr. 23, 26, 28-29). The magistrate judge mentioned the "minimum mandatory sentence" at least once before Petitioner was even formally advised of the applicable penalty (Id. at 26). Additionally, the magistrate judge confirmed with petitioner that she understood that her prior convictions could increase her sentence under the Guidelines. (Id. At 33.) "Solemn declarations in open court carry a strong presumption of verity," Blackledge v. Allison, 431 U.S. 63, 74 (1977), and where, as here, "the court has scrupulously followed the required procedure, [petitioner] is bound by h[er] statements in response to th[e] court's inquiry." Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986); see also United States v. Rennick, 219 F. App'x 486 (6th Cir. 2007) (same).
2. Counsel was not deficient for failing to object to an non-existent breach of the plea agreement.
Petitioner complains that the plea agreement was violated when her daughter provided allegedly substantial assistance yet the United States failed to file a USSG § 5K1.1 motion on petitioner's behalf (Court File No. 645, Memorandum in Support of § 2255 Motion at 3). Petitioner suggests that counsel was ineffective for failing to challenge that alleged breach of the plea agreement. However, as there was no breach of the plea agreement, counsel's failure to object to the United States' decision not to file a § 5K1.1 motion was not deficient performance.
The plea agreement did not obligate the United States to file a § 5K1.1 motion on petitioner's behalf on the basis of a third party's alleged assistance. Rather, the plea agreement simply noted that, at sentencing, "the United States may bring to the Court's attention the nature, extent, and value of the defendant's cooperation so that it may be considered in determining a fair and appropriate sentence under the facts of the case." (Court File No. 228, Plea Agreement at ¶ 9 (emphasis added)).
The decision whether to file a § 5K1.1 motion rests solely with the United States. The Supreme Court has recognized that the government has "power, [but] not a duty, to file a substantial-assistance motion." Wade v. United States, 504 U.S. 181, 185 (1992); see also United States v. Truman, 304 F.3d 586, 591 (6th Cir. 2002) (recognizing the government's "exclusive gate-keeping authority over the triggering mechanism of § 5K1.1" and its "power to limit the court's exercise of discretion to depart downward based on substantial assistance.") A defendant's claim to have rendered substantial assistance does not obligate the United States to file a motion for downward departure. See Wade, 504 U.S. at 187 ("[A]lthough a showing of assistance is a necessary condition for relief, it is not a sufficient one").
Because the United States had no duty under the plea agreement to move for a reduction in petitioner's sentence, the absence of such a motion did not violate the plea agreement. Accordingly, counsel cannot be faulted for failing to object to a non-existent breach of the plea agreement.
3. Counsel did not fail to object to the PSR's criminal history calculation.
Petitioner additionally suggests that counsel failed to adequately investigate and object to the PSR's assessment of her criminal history (Court File No. 645, Memorandum in Support of § 2255 Motion at 4-5). However, petitioner fails to identify any specific objections that counsel should have made. The record reflects that counsel did object to the probation officer's initial calculation of petitioner's criminal history (Final PSR, Addendum at 1). That objection was partially successful and resulted in a lower criminal history category for petitioner (Id). Petitioner does not identify any way in which counsel was deficient in raising that objection, or in failing to raise any other objection. Accordingly, petitioner has failed to establish ineffective assistance in that matter.
C. Petitioner has not established that she is actually innocent.
Petitioner also appears to suggest that she is actually innocent. (Court File No. 645, Memorandum in Support of § 2255 Motion at 5-6). However, she has already pleaded guilty to her offense (Court File No. 288, Plea Agreement). This Court has concluded that her plea was knowing, intelligent, and voluntary (Court File No. 308, Report and Recommendation; Court File No. 359, Order). Petitioner's only challenge to that conclusion is her factually-unsupported claim that she was not properly informed of her sentencing exposure prior to pleading guilty (Court File No. 645, Memorandum in Support of § 2255 Motion at 3-5). Petitioner does not claim or provide any evidence to suggest that she did not conspire to distribute methamphetamine. Accordingly, there is no factual basis for petitioner's claim that she is actually innocent.
D. Petitioner is not eligible for a sentence reduction.
Finally, Petitioner moves for a reduction in her sentence pursuant to 18 U.S.C. § 3582(c) (Court File No. 644, § 2255 Motion at 7; Court File No. 645, Memorandum in Support of § 2255 Motion at 1-2). However, § 3582(c) claims should not be raised in a § 2255 motion. See Wills v. United States, No.98-3439, 2000 WL 190050, at *2 (6th Cir. Feb. 7, 2000) (finding that issues concerning the retroactive application of Guidelines amendments are "not properly raised in a § 2255 motion"). The Government is correct on this point, no relief can be given. However, the Court notes that a subsequent motion seeking sentence reduction has been filed which could be the basis for relief (Court File No. 718).
The Government did argue in the alternative, that in any event, petitioner is not entitled to relief under § 3582(c) because none of the Guidelines under which she was sentenced have been subsequently modified by the Sentencing Commission. The Fair Sentencing Act ("FSA") of 2010 and the resultant retroactive Guidelines Amendment 750, on which petitioner purports to rely, lowered certain base offense levels applicable to cocaine base offenses. As petitioner's offense involved methamphetamine and not cocaine, neither the FSA nor Amendment 750 are applicable to her case. Accordingly, petitioner is ineligible for a sentencing reduction. That was correct at the time of the filing of the Government's response, but since that time, there have been additional modifications of the Guidelines by the Sentencing Commission. That separate motion (Court File No. 718) will be decided by the Court in a separate order.
IV. CONCLUSION
For the foregoing reasons, Petitioner's sentence was not imposed in violation of the Constitution or laws of the United States or is otherwise subject to collateral attack, and the motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 is DENIED.
In addition to the above, this Court CERTIFIES any appeal from this action would not be taken in good faith and would be totally frivolous. Therefore, any application by Petitioner for leave to proceed in forma pauperis on appeal is DENIED. Fed. R. App. P. 24. Petitioner has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253; Fed. R. App. P. 22(b), or that reasonable jurists would disagree on the resolution of this matter; thus a certificate of appealability SHALL NOT ISSUE. Slack v. McDaniel, 529 U.S. 473, 484-85 (2000).
SO ORDERED.
ENTER:
/s/ _________
CURTIS L. COLLIER
UNITED STATES DISTRICT JUDGE
ENTERED AS A JUDGMENT
s/ Debra C. Poplin
CLERK OF COURT