Powellv.U.S.

United States District Court, E.D. Michigan, Southern DivisionSep 9, 2002
Civ Case No: 02-71808, Criminal Case No: 92-81058 (E.D. Mich. Sep. 9, 2002)

Civ Case No: 02-71808, Criminal Case No: 92-81058

September 9, 2002


MEMORNADUM OPINION and ORDER OF DISMISSAL


ANNA DIGGS TAYLOR, United States District Court Judge

Petitioner has filed a timely motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. For the reasons stated below, Petitioner's motion must be DENIED.

I.

Petitioner was one of nearly two dozen defendants involved in a multi-million dollar drug conspiracy in Detroit during the 1980's and 90's. Upon investigating these activities, the government issued several multi-count indictments over a period of years. On November 17, 1993, the government charged Petitioner in the second superceding indictment with Count 1, conspiracy to possess with intent to distribute and to distribute cocaine in violation of 21 U.S.C. § 841 (a)(1) and 846(a). To this count, Petitioner pled not guilty. A trial on the second superceding indictment was later adjourned.

On May 11, 1994, the government issued a third superceding indictment again charging Petitioner with conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § § 846 and 841(a). Pursuant to a Rule 11 plea agreement, Petitioner pled guilty to the charge. At his plea hearing, Petitioner was sworn, he admitted his guilt, and this court accepted his guilty plea after finding that the plea was entered knowingly and voluntarily. On September 22, 1994, this Court sentenced Petitioner to 135 months imprisonment to run concurrent to a five-year term that Petitioner was already serving on another charge. The Court later amended this sentence to 117 months in consideration of time served. Petitioner appealed his sentence and on February, 15, 1996, the Court of Appeals affirmed this Court's decision. On December 6, 1994, Petitioner filed a motion pursuant to 28 U.S.C. § 2255 seeking to vacate his sentence on the third indictment. This Court denied that motion and the Court of Appeals affirmed that Court's decision.

On April 18, 1997, the government charged Petitioner in a fourth superseding indictment with Counts 2, 4, and 6, all of which concerned intentional killing; and Counts 3, 5, and 7, concerning the use and carrying of a firearm. After initially pleading not guilty to these charges, in conjunction with a second Rule 11 plea agreement, Petitioner pled guilty to Counts 2 and 3 only. Following his guilty plea and this Court's acceptance of that plea, Petitioner was sentenced to 200 months imprisonment on Count 2- to run concurrent to the previously imposed 117 month sentence; and 60 months imprisonment on Count 3- to run consecutive to those sentences. Petitioner timely appealed his conviction and sentence.

On appeal, Petitioner raised three issues: (1) that the Double Jeopardy clause precluded his guilty plea and sentence in connection with the fourth superceding indictment because both the third and fourth indictments included the same conspiracy; (2) that in charging Petitioner in the fourth superceding indictment, the government breached its agreement to grant Petitioner immunity from prosecution for homicides by using information gleaned from Petitioner's cooperation against him; and (3) that he was denied the effective assistance of counsel. On May 8, 2001, the appeals court declined to consider the merits of Petitioner's appeal, suggesting instead that Petitioner pursue a § 2255 motion in the District Court to develop the record concerning his claims as these claims previously had not been raised in the district court. United States of America v. Damond Sellers, David Powell, Edwin Culp, and Ronald Hunter, Nos. 98-1577, 1811, 1855, 2325, slip op. (6th Cir. May 8, 2001).

Petitioner's instant motion follows the recommendation of the Court of Appeals, but here alleges two grounds for relief. Petitioner's argues that (1) in charging Petitioner in the fourth superceding indictment, the government breached its prior agreement not to prosecute Petitioner for his involvement with homicides that he detailed as part of his cooperation with the government; and (2) he was denied effective assistance of counsel as his counsel failed to object to Petitioner being charged in the fourth superceding indictment. In sum, Petitioner requests that his earlier plea agreement concerning the third superceding indictment be specifically enforced, invalidating his later plea and sentencing.

II. Rule 11 plea agreement

Petitioner contends that in connection with his Rule 11 plea agreement concerning the third superceding indictment, he agreed to cooperate with the government by providing information concerning his involvement and the involvement of others in drug trafficking activities. In exchange, Petitioner contends, the government agreed to grant Petitioner immunity from federal and state prosecution for homicides he detailed as part of his cooperation with the government. Petitioner argues that the government violated this agreement by using information gleaned in his debriefing to bring the fourth superceding indictment that charged Petitioner with three counts of intentional killing and three corresponding counts of use and possession of a firearm. The government argues, however, that there was no agreement regarding the homicides and moreover, that the plea agreement did not prohibit the use of information gained from other sources. The Court is persuaded by the government's contentions and finds that there was no agreement between the government and the Petitioner not to prosecute Petitioner. Therefore, the government did not violate such agreement.

First, following the plain language of the agreement, it is clear that the government did not agree to provide Petitioner with immunity from federal and state prosecution concerning the homicides. Importantly, counsel represented Petitioner at all stages of prosecution concerning the third superceding indictment. The agreement was signed by Petitioner and his attorney. Petitioner's plea agreement contains two clauses that are relevant here:

Use of Information Against Defendant. In exchange for defendant's agreement to cooperate with the government, as outlined above, the government agrees not to use new information that defendant provides (pursuant to this agreement) about his own criminal conduct against him at sentencing in this case. Such information may be revealed to the court but may not be used against the defendant in determining defendant's sentence range, choosing a sentence within the range, or departing from the range. There shall be no such restrictions on the use of information: (1) previously known to law enforcement agencies; (2) revealed to law enforcement agencies by, or discoverable through, an independent source; (3) in a prosecution for perjury or giving a false statement; or (4) in the event there is a breach of this agreement.
No other terms. This agreement incorporates the complete understanding between the parties, and no other promises have been made by the government to the defendant or to the attorney for the defendant. . . . Unless an exception to this paragraph is explicitly set forth elsewhere in this document, this agreement does not bind or obligate entities other than the United States Attorney's Office for the Eastern District of Michigan.

The government agreed not to use new information that Petitioner provided at sentencing in this case. The agreement clearly made no mention of Petitioner's immunity from federal and state prosecution on homicides. Moreover, the government clearly indicated that it could use information gained from independent sources. This case involved nearly two dozen defendants, at least eight of whom entered into similar agreements to cooperate with the government. Many of those cooperating defendants, including the head of the ring, Timothy Patton, implicated Petitioner in crimes including drug trafficking and murder. In fact, Petitioner acknowledged in his brief concerning the instant motion that he knew that "the people who he was (sic) providing information against would in return provide information against Defendant Powell concerning the homicides." Petitioner's brief at 4.

Furthermore, the plea agreement contains an integration clause restricting its terms to those written in the agreement. An integration clause prevents a criminal defendant, who has entered into a plea agreement, from prevailing on a claim that the government made oral promises to him not contained in the plea agreement itself. United States v. Butler, 297 F.3d 505, 513 n. 8 (6th Cir. 2002); United States v. Hunt, 205 F.3d 931, 935 (2000); Peavy v. United States, 31 F.3d 1341, 1345 (6th Cir. 1994). The plea agreement language is clear the agreement incorporates the complete understanding between the parties and no other promises have been made.

Second, in addition to the plea agreement itself, this Court conducted a plea hearing in accordance with Rule 11 of the Federal Rules of Criminal Procedure. This Court ensured that Petitioner fully understood the terms of the plea agreement and the consequences of his guilty plea. At the hearing, the government orally detailed the terms of the agreement and at no time was there mention of immunity for Petitioner's involvement in homicides nor were there objections to the accuracy of the agreement. Petitioner related to the Court that the agreement represented the complete understanding of the parties. The relevant portion of the colloquy was as follows:

THE COURT: Did you sign this Rule 11 plea agreement?

THE DEFENDANT: Yes.

THE COURT: Have there been any promises or anything whatsoever, that the government has given you in exchange for a plea of guilty in this case?

THE DEFENDANT: Yes.

THE COURT: Is it all written here?

THE DEFENDANT: Yes.

THE COURT: Do you understand that if you're relying on anything that's not written here, you'll never get it enforced in this Court because the Court relies on this paper. Do you understand that?

THE DEFENDANT: Yes.

The Court then found that the agreement satisfied Rule 11. Thus, even though the agreement did not speak to immunity, Petitioner represented by counsel agreed that the agreement represented the complete understanding of the parties.

Finally, in the fourth superceding indictment, the government charged Petitioner with three counts of homicide and three counts of use and possession of a firearm. In conjunction with a second Rule 11 plea agreement, Petitioner, again represented by counsel, plead guilty to one count of intentional homicide and one count of use and possession of a firearm. In exchange for Petitioner's guilty plea and his testimony against his co-defendants concerning the intentional killings, the government agreed to dismiss the four remaining charges. Defendant did not challenge the fourth superceding indictment prior to participating in a plea agreement concerning the same.

Petitioner contends that on May 29, 1998, he sent a document to his attorney and to this court entitled: "Motion to dismiss fourth superceding supplemental indictment because of the government's failure to comply with their original plea agreement, or in the alternative, to give defendant a downward departure on his sentence under disparity to conform his sentence to those imposed on his co-defendants." Petitioner's court file contains no record that such a document had been filed or considered by this court.

Again, in Petitioner's colloquy with the Court, Petitioner represented that he understood the terms of the plea agreement and that it represented the complete understanding of the parties. Petitioner did note, however, that he thought the fourth superseding indictment was unjust. Nevertheless, Petitioner did not elect to withdraw his guilty plea, as he could have done at that time.

In sum, Petitioner's assertions have no evidentiary support. Petitioner has failed to make a threshold showing that immunity was promised him by the government. Thus, as to this issue, Petitioner's motion for § 2255 relief must be denied.

III. Assistance of Counsel

Essentially, Petitioner contends that he was denied the effective assistance of counsel because his attorney failed to challenge the fourth superseding indictment. A guilty plea is open to attack on the ground that counsel did not provide Petitioner with reasonably competent advice. Cuyler v. Sullivan, 446 U.S. 335, 344 (1980); Hunter v. United States, 160 F.3d 1109, 115 (6th Cir. 1998). To prevail based on an ineffective assistance of counsel claim, Petitioner must prove that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that but for counsel's deficient performance, the result of the proceedings would have been different. See Strickland v. Washington, 466 U.S. 668 (1985); United States v. Morrow, 977 F.2d (6th Cir. 1999). Moreover, counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. Strickland, 466 U.S. at 690.

Petitioner fails to satisfy the Strickland test. Regarding the third superceding indictment, Petitioner faced a maximum sentence of life imprisonment and a maximum fine of 4 million dollars for conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § 846 and 841(a). Although not including an agreement as to immunity, Petitioner's counsel negotiated a favorable Rule 11 plea agreement that resulted in Petitioner receiving a sentence of 135 months imprisonment if he plead guilty to Count One of indictment and cooperated with the government. In light of the overwhelming evidence developing against Petitioner as his co-defendants began to cooperate with the government, the plea agreement clearly represented a compromise on the part of the government. Moreover, the government recommended a sentence at the bottom of the applicable range. Where, as here, the agreement represented a compromise between the parties, and Petitioner received a benefit, the plea agreement Petitioner's attorney got for him cannot be said to be evidence of ineffective performance. See Hunter, 160 F.3d at 1115.

Regarding the fourth superceding indictment, that Petitioner's counsel failed to challenge the indictment does not render counsel's assistance ineffective. Petitioner's counsel performed well within the bounds of the legal profession in his decision not to challenge the indictment where, as this Court has found, the plea agreement did not speak to immunity. Moreover, given the overwhelming evidence against Petitioner, counsel's performance cannot be said to fall below an objectively reasonable standard.

IV.

Accordingly, Petitioner's motion is DENIED and DISMISSED.

IT IS SO ORDERED.