Opinion
File No. 1:00-CV-134, Crim. No. 1:96-CR-150
August 23, 2000
ORDER DENYING MOTION TO VACATE SENTENCE
In accordance with the opinion entered this date,
IT IS HEREBY ORDERED that Movant Yolanda Wilson's motion to vacate, set aside or correct sentence (Docket # 1) pursuant to 28 U.S.C. § 2255 is DENIED.
OPINION
This matter comes before the Court on Movant Yolanda Wilson's motion under 28 U.S.C. § 2255 to vacate, set aside, or correct the sentence imposed upon her by this Court on July 17, 1997.
I.
On March 18, 1997, following a jury trial, Movant Yolanda Wilson and her husband, Marlon Wilson, were convicted of conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 846 841(a). On July 17, 1997, Movant was sentenced to 168 months imprisonment followed by 5 years supervised release. Movant's conviction and sentence were affirmed on appeal. United States v. Wilson, 168 F.3d 916 (6th Cir. 1999). Movant was represented by Craig Frederick for all pretrial proceedings, and by Charles Rominger at trial and at sentencing.
II.
A prisoner who moves to vacate her sentence under section 2255 must show that the sentence was imposed in violation of the Constitution or laws of the United States, that the court was without jurisdiction to impose such sentence, that the sentence was in excess of the maximum authorized by law, or that it is otherwise subject to collateral attack. 28 U.S.C. § 2255. "To prevail under § 2255, Petitioner must show a `fundamental defect which inherently results in a complete miscarriage of justice,' or, an error so egregious that it amounts to a violation of due process." United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (quoting Hill v. United States, 368 U.S. 424, 428 (1968)).
In order to obtain collateral relief under section 2255, a petitioner must clear a significantly higher hurdle than would exist on direct appeal. United States v. Frady, 456 U.S. 152, 166 (1982). A petitioner may not raise claims in a section 2255 motion of even constitutional or jurisdictional magnitude to which no contemporaneous objection was made or which were not presented on direct appeal, unless she can show good cause excusing her failure to raise the issues previously and actual prejudice resulting from the alleged errors. Id. at 167-68; Nagi v. United States, 90 F.3d 130, 134 (6th Cir. 1996).
III.
In an action to vacate or correct the sentence, the court is required to grant a hearing to determine the issues and make findings of fact and conclusions of law "[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. No evidentiary hearing is required if the petitioner's allegations "cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact." Arredondo v. United States, 178 F.3d 778, 783 (6th Cir. 1999) (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)). Where the judge considering the section 2255 motion also conducted the trial, the judge may rely on his or her recollections of the trial. Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).
In this case the files and records conclusively show that Movant Yolanda Wilson is entitled to no relief under section 2255, and accordingly no evidentiary hearing is required to resolve the merits of the pending motion. Baker v. United States, 781 F.2d 85, 92 (6th Cir.), cert. denied, 479 U.S. 1017 (1986).
IV.
Movant's section 2255 petition alleges ineffective assistance at trial based upon counsel's A) failure to advise or discuss the risk or benefits of a guilty plea versus a trial; B) failure to move for an evidentiary hearing; C) failure to request or review previous trial transcripts; D) advice not to "talk" with the presentence officer; E) silence at sentencing; and F) failure to call witnesses who could have discredited government witnesses.
To make out a claim of ineffective assistance of counsel, Petitioner must show that counsel made errors so serious that he was not functioning as the counsel guaranteed by the Sixth Amendment, and that counsel's errors were so serious as to deprive her of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Hanley, 906 F.2d 1116, 1120-21 (6th Cir.), cert. denied, 498 U.S. 945 (1990); Flippins v. United States, 808 F.2d 16, 18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987).
To satisfy the first prong of the Strickland test Petitioner must show that counsel's performance was objectively unreasonable and falls below the wide range of competence demanded of attorneys in criminal cases. Id. at 688. Judicial scrutiny of counsel's performance is highly deferential, and there is a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id. at 689. See also Wong v. Money, 142 F.3d 313, 319 (6th Cir. 1998); Young v. Miller, 883 F.2d 1276, 1280 (6th Cir. 1989).
To satisfy the second prong of the Strickland test, 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. Strickland, 466 U.S. at 964. In other words, Movant must show that she should not have been convicted or that her sentence would have been different but for counsel's unprofessional errors.
A. Advice re Plea
Movant contends that counsel was ineffective because he did not discuss with her the benefits of entering a guilty plea as opposed to going to trial. Movant does not claim that counsel failed to advise her of a specific plea offer. Rather, her contention is that she was not advised generally of the benefits of a plea. Movant's position is not supported by the record.
Movant's own statements on the record contradict her assertion that she was not advised of the risks and benefits of a plea versus a trial. Movant admitted at sentencing that she had been offered an opportunity to cooperate by wearing a wire, and that she understood that if she did not cooperate she would risk a more severe sentence after trial. Sentencing Tr. at 23. She also admits in her affidavit attached to her memorandum in support of her section 2255 motion that the she was given the opportunity to cooperate by wearing a wiretap for lenient treatment. Wilson Affidavit ¶ 1.
The record is also replete with evidence that from the time of her arrest through the time of her sentencing Movant steadfastly maintained her innocense and denied all criminal liability. See Sentencing Tr., pp. 5-6; Frederick Affidavit ¶ 7; Rominger Affidavit ¶ 6; Courtade Affidavit ¶¶ 2-5. Such a stance left her attorneys with little opportunity to discuss the advantages of a plea. Given Movant's steadfast denial of criminal liability, this Court is satisfied that even if there was a failure to discuss the benefits of a plea versus the risks of trial, it would not have affected the outcome of this case.
B. Failure to Request Evidentiary Hearing
Movant contends that counsel was ineffective for failing to request an evidentiary hearing. Movant does not suggest at what stage an evidentiary hearing should have been requested, what the evidentiary hearing should have addressed, or how it would have affected the ultimate issues at trial or sentencing.
Neither have any of the attorneys associated with this case been able to identify any type of evidentiary hearing that might have had a potential for success. Movant's pretrial counsel, Craig Frederick, states that in his consultation with counsel for co-defendant Marlon Wilson, no evidentiary hearing was contemplated or determined to be appropriate. Frederick Affidavit ¶ 10. Appellate counsel similarly did not identify on appeal any issue that should have been addressed in an evidentiary hearing.See Wilson, 168 F.3d at 918.
One who claims ineffective assistance of counsel must identify the acts and omissions of counsel that are alleged not to have been the result of reasonable professional judgment. Strickland, 466 U.S. at 690. Because Movant has failed to identify either an error by counsel or any prejudice resulting from that error, the Court finds no merit to her claim that she was prejudiced by counsel's failure to request an evidentiary hearing.
C. Failure to Review Previous Trial Transcripts
Movant contends that counsel failed to review previous trial transcripts. Trial counsel states in his affidavit that he extensively reviewed the trial transcripts of the previous trial in preparation for the testimony of anticipated witnesses. Rominger Affidavit ¶ 5. This statement is supported by record evidence that the transcript was ordered by counsel for co-defendant Marlon Wilson, and evidence that the counsel for the two defendants worked closely together during the trial.
Movant has neither offered nor identified any evidence to contradict counsel's assertions. Moreover, any evidence that she might offer would be limited to hearsay, and such hearsay would not provide a sufficient basis for requiring an evidentiary hearing. See Arredondo, 178 F.3d at 783.
D. Advice re Presentence Investigation
Movant contends she received ineffective assistance of counsel because counsel instructed her not to talk to the presentence investigator.
It is evident from a review of the presentence report that Movant did in fact talk with the presentence investigator and provided him with detailed information about her background and upbringing. As explained in trial counsel's affidavit, when he discussed with Movant the upcoming interview with the presentence investigator, he did not advise her not to talk to the presentence investigator. He merely suggested that given her steadfast denial of criminal responsibility, she would necessarily have no offense information to offer. Rominger Affidavit ¶ 6.
According to the government, Movant eventually admitted she was guilty of the offense she was convicted of and testified at the trial of another drug dealer. Given Movant's denial of culpability at sentencing, however, there is some question as to whether Movant was prepared to provide a complete factual recitation about the crime to the presentence investigator. Defense counsel apparently determined that it was better for Movant not to offer any information about the crime rather than to give incomplete or inaccurate information that would have been harmful to her credibility and her subsequent efforts to secure a sentence reduction. Counsel's advice was a matter of strategy, and the Court cannot say that it was error, or that it prejudiced Movant at sentencing. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." Strickland, 466 U.S. at 690 .
E. Silence at Sentencing
Movant alleges that counsel was silent at sentencing. He was not. Counsel made objections to the presentence report on the record regarding the quantity of cocaine, whether Movant committed the crime while on probation, Movant's personal history and Movant's income. Sentencing Tr. at 13-16, 20-22. Some of counsel's objections resulted in corrections to the presentence report.
Movant has subsequently amended her argument to claim that counsel was ineffective for failing to seek a downward departure at sentencing. Movant alleges that her son's illness and the simultaneous incarceration of her husband could have warranted a downward departure.
Movant was sentenced at the bottom of the Sentencing Guidelines. Sentencing Tr. at 28. As noted on the record, this Court was fully aware at the time of sentencing of Movant's son's illness as well as the fact that both parents were to be incarcerated. Sentencing Tr. at 2, 28. This Court determined then, and it reaffirms now, that these factors do not provide a basis for departing from the Sentencing Guidelines. Counsel's failure to argue for a downward departure was not error, and it did not prejudice Movant.
F. Failure to Call Witnesses
Movant contends that counsel was deficient because he failed to call witnesses at trial who could have discredited government witnesses. Movant does not identify who those witnesses might be. It is a matter of conjecture whether any such witnesses existed. Movant's post-sentencing admission of culpability and cooperation with the government tend to support the credibility of the government's trial witnesses. Movant has not met her burden of showing that counsel erred by not calling particular witnesses, or that she was prejudiced by that failure.
V.
For the reasons stated above the Court concludes that the files and records in this case conclusively show that Movant is entitled to no relief under section 2255. Accordingly, Yolanda Wilson's motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255 must be denied. An order consistent with this opinion will be entered.