MARY ANN VIAL LEMMON, District Judge.
On December 3, 2015, the Grand Jury in the Eastern District of Louisiana indicted Barron Conn and his then-girlfriend, Kwana Parker, in connection with a drug trafficking operation. Conn was charged with: (Count1) conspiracy to distribute and posses with the intent to distribute five kilograms or more of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A) and 846; and, (Count 2) possession with the intent to distribute five kilograms or more of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A). At the time of the offense, Conn had two prior felony drug convictions. Thus, he was facing a mandatory life sentence pursuant to 21 U.S.C. §§ 851 and 841(b)(1)(A), if the government chose to file a bill of information establishing those prior convictions. Also, at the time that Conn was indicted in this case, he had been charged with money laundering in the 9th Judicial District of Texas, Montgomery County, Case Number 15-06-05835.
The circumstances that led to the December 3, 2015, Indictment against Conn and Parker are summarized in the Factual Basis entered into the record in connection with Conn's guilty plea in this case. Doc. #54. The Factual Basis states:
DEA Special Agent Chad Scott was present at the September 30, 2015, traffic stop. On June 22, 2016, the government wrote Conn's counsel to disclose a pending investigation against Scott regarding his alleged misconduct in his role as a DEA Agent. On September 29, 2017, Scott was indicted by a Grand Jury in the Eastern District of Louisiana and charged with: falsification of government records; obstruction of justice; perjury; conspiracy to convert property of another by an officer or employee of the United States and removal property to prevent seizure; conversion of property of another by an officer or employee of the United States; removal of property to prevent seizure; and, seeking and receiving an illegal gratuity. The charges stem from Scott's work as a DEA Special Agent, but do not directly relate to Conn's case.
On January 11, 2017, the government filed a Superseding Bill of Information charging Conn with conspiracy to distribute and possess with the intent to distribute a quantity of cocaine hydrochloride, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(C), and 846. On January 19, 2017, Conn pleaded guilty to the charge in the Superseding Bill of Information pursuant to a negotiated plea agreement entered under Rule 11(c)(1)(C) of the Federal Rules of Criminal Procedure. In the plea agreement, the parties stipulated to a sentence of 60 months imprisonment to be served concurrently with the sentence of 60 months imprisonment imposed on Conn in the 9th Judicial District of Texas, Montgomery County, Case Number 15-06-05835. The government agreed not to seek a sentencing enhancement pursuant to § 851. The plea agreement provided that, if the court rejected the Rule 11(c)(1)(C) negotiated sentence and Conn persisted with his plea, he would face a maximum term of imprisonment of 20 years, instead of the mandatory life sentence that he previously faced. The government also agreed to dismiss the pending indictment against Conn and Parker. In his plea agreement, Conn waived the right to collaterally challenge his sentence in a motion made under 28 U.S.C. § 2255, but retained "the right to raise a claim of ineffective assistance of counsel in an appropriate proceeding."
At his rearriagnment, Conn acknowledged that this is the agreement he entered into and that he signed the document. Conn affirmed that he was pleading guilty of his own free will. Further, Conn acknowledged that he was entirely satisfied with the advice and services of his counsel and he had adequate time to discuss his case with his attorney as well as any defenses he might have. Conn also stated that the facts stated in the Factual Basis were an accurate description of what occurred.
On April 27, 2017, this court accepted the Rule 11(c)(1)(C) plea agreement and sentenced Conn to 60 months in the custody of the Bureau of Prisons to be served concurrently with the sentence imposed in the 9th Judicial District of Texas, Montgomery County, Case Number 15-06-05835.
On April 23, 2018, Conn filed the instant motion for post conviction relief pursuant to 28 U.S.C. § 2255. Conn argues that Scott planted the money in the vehicle during the September 20, 2015, traffic stop. Conn argues he is entitled to relief because he was denied effective assistance of counsel in that: (1) his attorney failed to present a coherent argument for police fabrication regarding Scott's purported actions, and (2) his attorney failed to challenge the pretextual stop as being illegal. The government concedes that Conn's motion was timely filed and the issue of effective assistance of counsel was not waived in the plea agreement. The government argues that Conn cannot demonstrate that he received ineffective assistance of counsel because he cannot show that he would have had a more favorable result had he gone to trial.
Pursuant to § 2255, a prisoner in custody under a federal court sentence may seek relief on four grounds: (1) "that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) "that the court was without jurisdiction to impose such sentence"; (3) "that the sentence was in excess of the maximum authorized by law"; or, (4) that the sentence "is otherwise subject to collateral attack." 28 U.S.C. § 2255. If the district court determines that a petitioner is entitled to relief under § 2255, the court "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate."
Relief under § 2255 "is reserved for transgressions of constitutional rights and for a narrow range of injuries that could not have been raised on direct appeal and would, if condoned, result in a complete miscarriage of justice."
To succeed on a claim of ineffective assistance counsel, petitioner must show: (1) that his counsel's performance was deficient; and (2) that his counsel's deficient performance prejudiced his defense.
Deficient performance by counsel is established by showing "that counsel's representation fell below an objective standard of reasonableness."
To demonstrate prejudice caused by counsel's allegedly deficient performance, the 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."
Conn argues that his attorney was ineffective for failing to further investigate Scott's alleged wrongdoing and present a defense of police misconduct. Conn's counsel could not have presented the defense of police misconduct because Conn chose to plead guilty and there was no trial at which to present such a defense. When he pleaded guilty, Conn had been aware of the investigation into Scott's activities for 6 months. At his rearraignment, the court asked Conn if he had sufficient time to discuss with his attorney the facts of his case and any defenses he might have. Conn replied that he did and that he was entirely satisfied with the advice and services of his attorney. Conn also acknowledged his guilt and admitted the accuracy of the Factual Basis. Conn's attorney did not cause him to lose the opportunity to bring the defense of police misconduct at a trial, but rather Conn relinquished it by choosing to plead guilty. Moreover, Conn received a favorable plea agreement that eliminated his exposure to a life sentence and resulted in a 60 month sentence that runs concurrently with another sentence he is serving. Therefore, Conn has not established that his attorney was deficient for not raising at trial the defense of police misconduct.
Conn also argues that his attorney was ineffective for failing to file a motion to suppress the evidence obtained at the September 30, 2015, traffic stop. It is unlikely that Conn would have prevailed on such a motion considering that the police initiated the traffic stop after observing the vehicle in which he was traveling commit traffic violations. Further, the police had probable cause to stop the vehicle because Conn participated in recorded telephone calls with a confidential informant to arrange the drug transaction, described the vehicle he would use to travel to New Orleans, and that he was stopped by police on the day that he and the confidential informant had agreed to meet. If Conn's attorney had filed a motion to suppress, it may have jeopardized the favorable plea agreement that was negotiated. This is the type of informed strategic decision that is entitled to deference and does not constitute ineffective assistance of counsel.
Finally, Conn argues that his plea was coerced due to the ineffectiveness of his counsel. This court has determined that Conn's counsel was not ineffective as alleged by Conn. Also, at his rearraignment Conn stated that he was pleading knowingly, voluntarily and of his own free will, and that he was not pleading guilty because of any threats made by anybody. Moreover, the suggestion that Conn's plea was coerced is belied by the favorable terms of the plea agreement. Therefore, Conn's motion brought under§ 2255 to vacate, set aside, or correct his sentence is DENIED.
