JOE HEATON, District Judge.
Defendant Brian Heath Collins and two codefendants were charged in a two count indictment with manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), and possessing methamphetamine with the intent to distribute, in violation of 21U.S.C. § 841(a)(1). Defendant filed a motion to suppress and, after it was denied, pleaded guilty to the manufacturing count. The court sentenced defendant to 168 months of imprisonment with four years of supervised release. Defendant appealed the suppression order and the Tenth Circuit affirmed the denial.
Defendant asserts four grounds for relief in his motion. He alleges ineffective assistance of trial counsel in grounds one and two, that the court violated his due process rights in ground three, and ineffective assistance of appellate counsel and cumulative error in ground four. The court determined an evidentiary hearing was warranted on the issues raised in grounds one and two. Counsel was appointed to represent defendant and a hearing was held on February 12 and 13, 2015. Having considered the parties' submissions, the evidence presented and arguments of counsel, the court concludes defendant's motion should be denied.
Defendant's first two grounds for relief are based on separate theories of ineffective assistance of trial counsel.To prevail on a Sixth Amendment claim of ineffective assistance of counsel, a defendant must first "`show that counsel's representation fell below an objective standard of reasonableness.'"
In ground one, defendant claims his guilty plea was involuntary because his decision to plead was based on his attorney's promise that he would not be sentenced as a career offender. Defendant asserts that his attorney specifically told him, "[i]f you change your plea to guilty they will not seek the career offender on you." Doc. #149, p. 4.
To establish the first prong of the
Defendant did not meet his burden of demonstrating that Mr. Herring promised him if he pleaded guilty he would not be sentenced as a career offender under § 4B1.1 of the United States Sentencing Guidelines. What defendant did show, as will be further discussed in conjunction with ground two, is defense counsel's lack of communication with his client. That falls short, though, of the "promise" defendant needed to demonstrate to obtain relief on the basis of his claim in ground one.
Even if defendant had shown that Mr. Herring had misrepresented the effect of his guilty plea, defendant still had to satisfy the second, prejudice prong of the
Defendant's proof of prejudice falls short. Essentially all he offered in this regard was the following:
Doc. #149, p. 15.
Defendant did not, though, elaborate and explain how or why he might have succeeded if he had proceeded to trial. He ignores the fact that the errors he alleges counsel made in this case were not "a failure to investigate or discover potentially exculpatory evidence" or "to advise [him] of a potential affirmative defense to the crime charged."
Defendant also ignores the benefits he received from the plea bargain. In exchange for his guilty plea, the government dismissed count two of the indictment.
Considering the benefits defendant received by pleading guilty and the lack of any indication that he likely would have succeeded at trial, the court has "trouble concluding that a decision to go to trial in [defendant's] case would have been rational."
In ground two, defendant claims his "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment."
Other than when he saw defendant during court proceedings, Mr. Herring essentially met with defendant once before he was sentenced, when he brought the plea agreement to defendant and spent about thirty minutes going over the document with him.
Counsel's neglect did not, though, prejudice plaintiff in the
Defendant's remaining contention, on which he focused at the hearing, essentially was that his trial counsel failed to argue that he should not be sentenced as a career offender and, because of an error in his criminal history category, failed to request a lower sentence. Defendant asserts counsel failed to realize that his criminal history category was wrong because two prior convictions were double counted, and then told the court that the issue, which defendant had raised in his sentencing memorandum, was moot. He claims the error was prejudicial because his unenhanced criminal history category was a level IV, rather than V, and the court commented during sentencing that it imposed a sentence at the bottom of the guideline range that would have applied had defendant not been designated a career offender. Defendant argues that the difference would have allowed counsel to push for a lower sentence, particularly if he had cited and discussed the arguments in
Defendant has not shown there is a reasonable probability that, but for counsel's failure to insure that his unenhanced criminal history was correctly calculated, the court would have reduced his sentence even further. "A reasonable probability is a probability sufficient to undermine confidence in the outcome."
While defendant was given a below guidelines sentence, the court remarked at the hearing on the need for a substantial sentence, noting, among other things, the seriousness of the crime (the manufacturing of methamphetamine), defendant's lengthy criminal history, and his drug addiction which, it determined, increased the risk of further offenses. See Doc. #151-1, pp. 10-14. In these circumstances, and considering that the sentencing guidelines are advisory, not mandatory, the court concludes defendant has not met his burden of showing that "`[t]he likelihood of a different result [is] substantial, not just conceivable.'"
In ground three defendant claims the court denied him due process by failing to "make proper inquiry into counsel's promise that career enhancement would not be used, and what the appeal waiver's consequences were." Doc. #149, p. 28. Both arguments fail. At the plea hearing, defendant was specifically asked if any promises as to sentencing had been made to him and he said "no." The court had no reason to question that response or to otherwise pursue the matter with defendant. Doc. #151, p. 20. Further, the court did, at the plea hearing, specifically discuss the appeal waiver with the defendant. See Doc. # 151, pp. 19-20.
Defendant also claims the court was aware that he had not received and reviewed all the PSRs as required by Fed.R.Crim.P.32(i)(1)(A), yet did not address the issue until the day of sentencing. He asserts that the court's remedy of allowing defendant to confer with counsel a few moments before the hearing started was inadequate. However, the court specifically questioned the defendant at the beginning of the sentencing hearing about the matter. He asked defendant if he had received a copy of the presentence report. When defendant responded that he had, the court stated: "I want to be clear about that. I notice that at some point you had filed personally a document that said something to the effect that you hadn't seen your lawyer and you hadn't seen the report and all of that. Has that all been resolved to your satisfaction?" Doc. #151-1, p. 3. The defendant responded: "Yes, sir. Yes, sir." The court then inquired further: "So you've had a chance to visit with your lawyer and to review the report?" and the defendant replied: "Yes, sir." Id. Having informed the court under oath that the matter had been resolved, defendant cannot now claim otherwise as a basis for obtaining habeas relief.
Defendant also asserts the court failed to make sure his prior felonies qualified him as a career offender and, by double counting two of defendant's prior convictions, failed to properly calculate defendant's criminal history category. As has been discussed previously, both defendant's designation as a career criminal and his criminal history category of VI were accurate. Therefore, defendant is not entitled to habeas relief on the basis of ground three.
In his remaining ground for relief, defendant asserts claims of ineffective assistance of appellate counsel and cumulative error. He contends his attorney never communicated with him after sentencing, did not consult with him about filing an appeal or seeking certiorari and did not notify him when certiorari was denied. Defendant argues that even if the alleged constitutional errors were harmless, their cumulative effect was prejudicial, warranting habeas relief.
Defendant does not, though, develop his arguments and demonstrate how his constitutional rights were violated in conjunction with counsel's handling of his appeal.
Mr. Herring's representation of defendant reflected an unacceptable lack of attention to defendant and to the case. Defendant deserved, and was entitled to, better representation than what he received. Nonetheless, habeas relief is not warranted under the legal standards that apply. Accordingly, defendant's § 2255 motion for habeas relief [Doc. #148] is