CHELSEY M. VASCURA, Magistrate Judge.
Petitioner, a federal prisoner, brings this Motion to Vacate under 28 U.S.C. § 2255. For the reasons that follow, the Magistrate Judge
The Magistrate Judge further
On January 13, 2016, Petitioner pleaded guilty pursuant to the terms of his negotiated Plea Agreement, to charges of conspiracy to distribute and to possess with intent to distribute heroin, in violation of 21 U.S.C. § 846 and § 841(b)(1)(B)(i). (ECF No. 55.) On April 28, 2016, the District Court imposed a sentence of 90 months of imprisonment, to be followed by four years of supervised release, and ordered the forfeiture of the property set forth in Forfeiture Count A, Exhibits 1 and 2 of the Indictment. (ECF No. 87.) Petitioner did not file an appeal.
On April 3, 2017, Petitioner filed this Motion to Vacate under 28 U.S.C. § 2255. He claims that he was denied the effective assistance of counsel during plea negotiations because his attorney failed to investigate, failed to advise him of the likely consequences of a guilty plea as opposed to proceeding to trial, and failed to attempt to negotiate more favorable terms in the Plea Agreement. Petitioner asserts that he was denied the effective assistance of counsel at sentencing, because his attorney failed to review with him or explain the PreSentence Investigation Report and failed to file objections to the PreSentence Investigation Report. Finally, Petitioner asserts that he was denied the effective assistance of counsel when his attorney failed to file a notice of appeal after Petitioner requested that he do so. Respondent argues that all of Petitioner's claims lack merit.
In order to obtain relief under 28 U.S.C. § 2255, a petitioner must establish the denial of a substantive right or defect in the trial that is inconsistent with the rudimentary demands of fair procedure. United States v. Timmreck, 441 U.S. 780, 783 (1979); United States v. Ferguson, 918 F.2d 627, 630 (6th Cir. 1990) (per curiam). Relief under 28 U.S.C. § 2255 is available when a federal sentence was imposed in violation of the Constitution or laws of the United States or when the trial court lacked jurisdiction, when the sentence was in excess of the maximum sentence allowed by law, or when the judgment or conviction is "otherwise subject to collateral attack." United States v. Jalili, 925 F.2d 889, 893 (6th Cir. 1991). In the absence of constitutional error, the question is "whether the claimed error was a `fundamental defect which inherently results in a complete miscarriage of justice.'" Davis v. United States, 417 U.S. 333, 346 (1974) (quoting Hill v. United States, 368 U.S. 424, 428-429 (1962)); see also Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2006). However, "`[a] § 2255 motion may not be used to relitigate an issue that was raised on appeal absent highly exception circumstances.'" DuPont v. United States, 76 F.3d 108, 110 (6th Cir. 1996)(quoting United States v. Brown, No. 94-5917, 1995 WL 465802 (6th Cir. 1995)). Further, non-constitutional claims not raised at trial or on direct appeal are waived on collateral review except where the errors amount to something akin to a denial of due process. Accordingly, claims that could have been raised on direct appeal, but were not, will not be entertained on a motion under § 2255 unless the petitioner shows (1) cause and actual prejudice sufficient to excuse his failure to raise the claims previously or (2) that he is "actually innocent" of the crime. Ray v. United States, 721 F.3d 758, 761 (6th Cir. 2001(citing Bousley v. United States, 523 U.S. 614, 622 (1998)) (internal citations omitted).
United States v. Noble, No. 1:14-cr-135, 2017 WL 626130, at *3 (N.D. Ohio Feb. 15, 2017).
"In all criminal prosecutions," the Sixth Amendment affords "the accused . . . the right . . . to Assistance of Counsel for his defence." U.S. Const. amend. VI. "Only a right to `effective assistance of counsel' serves the guarantee." Couch v. Booker, 632 F.3d 241, 245 (6th Cir. 2011) (citation omitted). The United States Supreme Court set forth the legal principles governing claims of ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 556 (1984). In order to prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate both that counsel's performance was deficient, or that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed" by the Sixth Amendment, and that this deficient performance prejudiced the petitioner. Id. at 687. This showing requires that defense counsel's errors were so serious as to deprive the defendant of a fair and reliable trial. Id.
"Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 599 U.S. 356, 371 (2010). Given the difficulties inherent in determining whether an attorney's performance was constitutionally deficient, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance . . . ." Strickland, 466 U.S. at 689. Nevertheless, "[a]n 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. Therefore, a petitioner must also establish prejudice in order to prevail on a claim of ineffective assistance of counsel. Id. at 692.
In order to establish prejudice, a petitioner must demonstrate that a reasonable probability exists that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because a petitioner must satisfy both prongs of Strickland in order to demonstrate ineffective assistance of counsel, should a court determine that the petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.
Because a criminal defendant waives numerous constitutional rights when he pleads guilty, the guilty plea must be entered knowingly and voluntarily in order to be constitutionally valid. Boykin v. Alabama, 395 U.S. 238, 244 (1969). "`The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.'" Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir. 1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, a court must look at the totality of the circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976). Further, a criminal defendant cannot successfully challenge the voluntariness of his plea merely on the basis that he was motivated to plead guilty. Brady v. United States, 397 U.S. 742, 750 (1970).
However, a petitioner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). Strickland's two part test applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks, 852 F.2d at 884. In order to obtain relief on that basis, however, a petitioner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.
Petitioner has failed to meet this standard here. Petitioner claims that his attorney failed to consult with him regarding the case or provide him with sufficient information so that he could make an informed decision regarding whether to enter a guilty plea. (ECF No. 102-1, PAGEID# 336.) Petitioner complains that his attorney urged him to cooperate, advised him to plead guilty, and pressured him into so doing. Additionally, Petitioner contends that his attorney failed to conduct pre-trial investigation as to information regarding the person who set Petitioner up as criminally responsible for the acts charged and facts indicating that Petitioner only participated in five drug transactions and did not own the apartment used as a "stash" house. Petitioner complains that counsel failed to require testing of the drugs seized, which would have resulted in a reduced sentence, because Petitioner "cut" the drugs that he sold. Petitioner states that he did not agree to the forfeiture of property or any enhancements of his recommended sentence under the advisory United States Sentencing Guidelines. According to Petitioner, he was forced to sign the Plea Agreement on the day of the guilty plea hearing, without being provided sufficient time to review its terms. Petitioner states that he attempted to hire a new attorney, but was unable to do so, and the prosecutor told him that the plea offer would be withdrawn if he hired a new attorney. Petitioner maintains that, but for the ineffective performance of his attorney, it is reasonably probable that he would have pleaded guilty without a plea agreement or proceeded to trial. Petitioner asserts that his attorney failed to negotiate more favorable terms on his behalf and improperly advised him that entry of a guilty plea was his best option under the circumstances of this case.
In response, Respondent has submitted an Affidavit from Michael H. Siewert, Petitioner's former defense counsel, which indicates in relevant part as follows:
Specifically, I met with Mr. Drone on the following dates:
Affidavit, Michael H. Siewert (Doc. 116-3, PAGEID# 505-07.)
The email regarding Petitioner's proposed plea agreement, dated November 6, 2015, indicates that Petitioner had a prior drug trafficking offense that would have increased his mandatory minimum sentence to a term of 10 years under the provision of 21 U.S.C. § 851;
(PAGEID# 508.)
The record reflects that, on August 13, 2015, a Sealed Indictment was filed charging Petitioner with conspiracy to distribute more than 100 grams of heroin and conspiracy to distribute more than 50 grams of methamphetamine and the forfeiture of certain property. (ECF No. 3.) On January 4, 2016, Petitioner signed a Plea Agreement indicating his agreement to plead guilty to Count One, conspiracy to distribute and to possess with intent to distribute heroin. Petitioner indicated that he understood that he faced a minimum term of five years, and up to twenty years imprisonment. (ECF No. 55, PAGEID# 94.) On January 13, 2016, he signed an Amended Plea Agreement indicating that he understood that he faced up to forty years imprisonment. (ECF No. 58, PAGEID# 106.) All other terms of the Plea Agreement and Amended Plea Agreement are the same. Petitioner agreed to the voluntary surrender for forfeiture to the United States all property listed in attached exhibits to the Amended Plea Agreement. (PAGEID# 107, 113-15.) Petitioner understood that the Court could impose the maximum sentence and that any estimate of the probable sentence range that he may have received was a prediction and not a promise. The United States made no promise or representation regarding the sentence that would be imposed, and Petitioner could not withdraw his guilty plea based on the actual sentence imposed. (PAGEID# 108.) Petitioner agreed that U.S.S.G. § 2D2.1(a)(5) and (c)(8) applied, resulting in a base offense level of 24; that his recommended sentence under the United States Sentencing Guidelines would be enhanced two points for possession of a dangerous weapon under § 2D1.1(b)(1), two points for maintaining a premises for the purpose of distributing a controlled substance under § 2D1.1(b)(12), and two points pursuant to § 3B1.1(c) for being an organizer, leader, manager, or supervisor in the criminal activity. (PAGEID# 108-09.) Petitioner would obtain a three-point reduction in his recommended sentence for his acceptance of responsibility and for timely notifying the authorities of his intention to plead guilty. (PAGEID# 109.) The government agreed to dismiss Count Two and not to file any additional criminal charges against Petitioner based on the activities charged. (PAGEID# 110.)
On January 13, 2016, at the time of his guilty plea hearing, Petitioner stated while under oath that he understood the nature and meaning of the charge against him, had discussed it with his attorney, and believed that counsel was fully informed about the facts and circumstances on which the charge was based. (Doc. 116-1, PAGEID# 436-37.) Defense counsel had fully advised Petitioner of the nature and meaning of the charge as well as any available defenses. Petitioner was satisfied with the advice and representation of counsel. (PAGEID# 437.) The Court advised Petitioner of the elements of the offense charged. Petitioner indicated that he understood. (PAGEID# 437-38.) He understood that he faced a mandatory minimum term of five years and up to forty years in prison. (PAGEID# 438-39.) Petitioner reiterated at his sentencing hearing that he understood that he faced a statutory minimum mandatory sentence of five years and up to 40 years in prison. Sentencing Transcript (Doc. 116-2, PAGEID# 464-65.) Petitioner agreed to the forfeiture of money, vehicles, real estate, firearms, and certain jewelry. Guilty Plea Transcript (Doc. 116-1, PAGEID# 439.) He had discussed with his attorney how the advisory sentencing guidelines might apply in his case. (PAGEID# 443.) He understood that he would not be able to withdraw his guilty plea if the Court imposed a sentence that was more severe than he had anticipated. (PAGEID# 444-45.) The Court advised him of all of the rights that he was waiving by entry of his guilty plea. Petitioner indicated that he understood. (PAGEID# 446-47.) The prosecutor stated the terms of the Amended Plea Agreement. Petitioner and his attorney agreed with those terms. (PAGEID# 447-51.) Petitioner denied being made any other promises or assurances of any kind that induced him to enter a guilty plea. (PAGEID# 453.) His decision to plead guilty was his own free and voluntary act. He denied being subjected to any threats or force of any kind that caused him to plead guilty. (PAGEID# 454.)
Agent Heufelder summarized the facts of the case as follows:
(PAGEID# 454-55.) Petitioner agreed that all of these facts were correct. (PAGEID# 456.) He admitted his guilt. (PAGEID# 456-57.)
On April 27, 2016, at the time of his sentencing hearing, Petitioner indicated that he had received a copy of the PreSentence Investigation Report. He had read it, understood it, and had discussed it with his attorney. (Doc. 101, PAGEID# 267-68.) He had no questions about the PreSentence Investigation Report, although he did not agree with and had objections to the report. (PAGEID# 268-69.) Petitioner acknowledged that he had agreed to the forfeiture of any interest in the property located at 56-58 Hague Avenue, Columbus, Ohio and Lot Number 725 and the north one-half of Lot 726 in the Wicklow Extension Edition, as well as the forfeiture of any jewelry described in Exhibit 2 which had been seized in August 2015. (PAGEID# 271.) Defense counsel objected to the probation officer's computation of Petitioner's base offense level under the advisory United States Sentencing Guidelines and to the amount of heroin attributable to Petitioner, as some of the drugs seized had been mixed with brown sugar. Defense counsel also objected to a two-level increase in Petitioner's recommended guideline sentence relating to Petitioner using his relationship with his brother and co-defendant to his advantage to become involved in the conspiracy. See Addendum to PreSentence Report.
The PreSentence Investigation Report indicates that Petitioner's recommended guideline sentence was 262 to 327 months of incarceration. The probation officer recommended 200 months. See Sentencing Recommendation. Under the terms of Petitioner's negotiated Plea Agreement, however, the parties had agreed to a base offense level of 24, which resulted in a substantially reduced recommended guideline sentence of 108 to 135 months imprisonment. PreSentence Investigation Report, ¶¶ 97, 98; see also United States Sentencing Memorandum (Doc. 204.) The drugs found in the stash house were not included in calculating Petitioner's recommended guideline sentence in view of Petitioner's cooperation. Sentencing Transcript (Doc. 101, PAGEID# 274-76.) Defense counsel objected to the two-level increase in Petitioner's recommended guideline sentence based on his admission to possession of firearms found in the stash house. (PreSentence Investigation Report, ¶ 28; PAGEID# 276.) Defense counsel argued for a term of 72 months of imprisonment. Defendant Leo Drone Sentencing Memorandum (ECF No. 85); Sentencing Transcript (Doc. 101, PAGEID# 284-89.) The government recommended a sentence at the low end of the guideline range. Sentencing Transcript (Doc. 101, PAGEID# 283.) The Court recognized the generous terms of Petitioner's Plea Agreement:
(PAGEID# 284.)
(PAGEID# 301.) Petitioner apologized to his family, the community, and the courts.
(PAGEID# 296-97.)
(PAGEID# 297.) The Court imposed a term of 90 months of incarceration, to be followed by four years of supervised release and ordered the forfeiture of the property described in Forfeiture Count A, Exhibits 1 and 2 of the Indictment that had been agreed upon. (PAGEID# 303-305.) The Court also advised Petitioner of his right to appeal:
(PAGEID# 308-09.)
Upon review of the record, Petitioner has failed to establish the denial of the effective assistance of counsel through the sentencing stage. A review of the record suggests that the government possessed substantial evidence of Petitioner's guilt and would likely have been able to establish the charges against him. By entry of his guilty plea, Petitioner substantially reduced his potential prison exposure. As discussed, Petitioner had prior convictions on two counts of trafficking in cocaine. PreSentence Investigation Report, ¶ 51. Nonetheless, the prosecutor agreed not to pursue the penalty enhancement provisions of 21 U.S.C. § 841(b)(1)(B),
Blackledge v. Allison, 431 U.S. 63, 73-75 (1977).
In short, Petitioner has failed to establish that, but for the errors of his attorney, there is a reasonable probability that he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. As a result of the entry of his guilty plea, Petitioner was able to obtain a sentence well below that of the recommended guideline sentence and the recommended sentencing range of 108-135 months as provided for under the terms of the Plea Agreement.
Petitioner also alleges that he was denied the effective assistance of counsel because he requested that his attorney file an appeal but his attorney failed to do so. (ECF No. 102, PAGEID #315). The failure of an attorney to file a timely appeal upon the defendant's request constitutes ineffective assistance of counsel.
Ludwig v. United States, 162 F.3d 456, 459 (6th Cir.1998).
Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000). Thus, Petitioner has alleged facts which, if true, may entitle him to relief. Petitioner's former attorney, Mr. Siewert, has stated, as noted previously, that Petitioner did not direct him to file a notice of appeal. The Court must, therefore, conduct an evidentiary hearing to determine whether Petitioner timely directed his attorney to file a notice of appeal on his behalf. See Campbell v. United States, 686 F.3d 353, 360 (6th Cir. 2012)(citing Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1989)(evidentiary hearing required unless record conclusively shows that the petitioner is not entitled to relief)).
Therefore, the Magistrate Judge
The Magistrate Judge further
If any party objects to this Report and Recommendation, that party may, within fourteen days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(B)(1).
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
The parties are further advised that, if they intend to file an appeal of any adverse decision, they may submit arguments in any objections filed, regarding whether a certificate of appealability should issue.
