United States v. James ( 2010 )

FILED
UNITED STATES DISTRICT COURT 1 _
FOR THE DISTRICT OF COLUMBIA _
C|erk, U.S. Dcstrict & Bankruptcy
) Courts for the Dlstrict of columbia
UNITED STATES OF AMERlCA, )
)
) Criminal Action. No. 03-325 (RBW)
v. ) Civil Action No. 07-1506 (RBW)
)
STEVEN JAMES, )
)
Defendant. )
)
MEMORANDUM OPINION
Steven James, the pr_o g defendant in this case, seeks immediate relief from the prison
sentence he received from the Court for violating the terms of his plea agreement. Writ for
Habeas Corpus to Vacate, Set Aside, or Correct Sentence (the "Def.’s Mot.") at 2, 12;1 Hr’g Tr.
2-5, l 1-l5, May 6, 2005. In his motion for post-conviction relief, the defendant argues that his
guilty plea and sentence for Possession With Intent to Distribute Heroin and Possession of a
Firearm During a Drug Trafficking Offense were unlawful because (l) he pled guilty to a "sham
statute," Def.’s Mot. at 2, 5; (2) his counsel was constitutionally ineffective, i_cL at 6; (3) the
Court violated Federal Rule of Criminal Procedure ll by failing to inform him of the nature and
consequences of a potential term of supervised release, § at 8; and (4) the Court’s application of
the United States Sentencing Guidelines - specifically the Career Offender Pr0vision, by
allowing sentencing enhancements for past convictions, see U.S. Sentencing Guidelines Manual
§ 4Bl .l (2009) ~ violated the Double Jeopardy Clause, Def’s Mot. at 9; Memorandum Citation
l Although the cover page of the defendant’s motion is titled "Writ for Habeas Corpus to Vacate, Correct or Set
Aside Sentence," the standardized motion form that he used is titled "Motion Under 28 U.S.C. § 2255 to Vacate, Set
Aside, or Correct Sentence by a Person in Federal Custody." Given the submission of the forrn, along with the
defendant’s repeated citation to Section 2255 in the body of his motion, see, e.g., § at 2, ll, 12, the Court will
evaluate the motion as pursued under Section 2255.
of Laws (the "Def.’s Mem.") at 4. After careful consideration of the defendant’s motion and
attached memorandum, the Government’s Opposition to Defendant’s Section 2255 Motion (the
"Gov’t’s Opp’n"), and the entire Court record, the Court concludes for the following reasons that
the defendant’s motion must be denied.
I. Background
On July 29, 2003, the defendant was charged with one count of Possession of a Firearm
and Ammunition by a Person Convicted of a Crime Exceeding One Year, in violation of 18
U.S.C. § 922(g)(l) (2002); one count of Unlawful Possession with Intent to Distribute Heroin, in
violation of 21 U.S.C. § 84l(b)(l)(C) (2002); and one count of Using, Carrying, and Possessing
a Firearm During a Drug Trafficking ()ffense, in violation of 18 U.S.C. § 924(c)(l) (2002).
Gov’t’s Opp’n at 2. On December l l, 2003, the defendant pled guilty to the latter two counts
and was released pursuant to a cooperation agreement with the government that required the
defendant to serve as a govemment inforrnant. §_e_e Hr’ g Tr. 5-6, 27-50, Dec. ll, 2003. The
defendant, however, violated the terms of his release, and consequently he was sentenced by this
Court on May 6, 2005 to a term of 240 months incarceration on the Possession with Intent to
Distribute Heroin count and twenty-two months on the Using, Carrying, and Possessing a
Firearm During a Drug Trafficking Offense count, with both sentences to be served
consecutively. Hr’g Tr. 14-l 5, May 6, 2005. The defendant was also sentenced to five years of
supervised release following the completion of his prison sentence. ld_.
On appeal, the defendant argued that "he [had been] convicted of a drug crime ‘for which
he ha[d] never been charged."’ United States v. James, No. 05-3083, 2007 WL 754784, at *l
(D.C. Cir. Feb. 27, 2007) (per curiam). Although "the plea agreement that J ames negotiated with
the government mistakenly identified the drug charge as a violation of subsection
84l(b)(l)(B)(i)," the District of Columbia Circuit affirmed the conviction and sentence because
[the defendant’s] characterization of the proceedings below is clearly wrong.
James was indicted for violating 21 U.S.C. § 84l(b)(l)(C), which prohibits
possession with intent to distribute any amount of heroin. The sentencing
hearing, the presentencing report, and the bulk of the Rule ll colloquy all
correctly referred to and applied that provision. Moreover, the judgment entered
in the district court docket plainly states that J ames was convicted of a violation
of subsection 84l(b)(l)(C).
I_959 F.2d 1011, 1031 (D.C. Cir. 1992) (quoting Machibroda v. United States, 368 U.S.
487, 495 (1962)). In making this assessment, the Court construes pro _se_ filings liberally.
Toolasprashad v. Bureau of Prisons, 286 F.3d 576, 583 (D.C. Cir. 2002). With these principles
in mind, the Court will now address each of the defendant’s arguments in tum.
1. The defendant’s ‘sham statute’ argument
The defendant first argues that he was induced to plead guilty to a "sham statute" because
Federal Rule of Evidence 704(b) prohibits the Court from allowing an expert witness to testify to
the defendant’s intent to distribute drugs. Def.’s Mot. at 5; Def.’s Mem. at 3. The government
argues that this claim is merely a re-framing of the defendant’s argument on direct appeal that he
was convicted of a drug crime for which he has never been charged, and thus it is not open to
relitigation. Gov’t’s Opp’n at 2, 5-6. Certainly, "[i]t is well established in the federal circuits
that a federal prisoner cannot raise collaterally any issue litigated and adjudicated on a direct
appeal from his conviction, absent an intervening change in the law[,]" or some fundamental
miscarriage of justice. Garris v. Lindsay, 794 F.2d 722, 726 (D.C. Cir. 1986) (footnotes
omitted). However, the Court understands the defendant to be raising a different argument: that
the defendant would have declined the plea offer if he had not been misled about what an expert
witness could say at trial under the Federal Rules of Evidence. The defendant seems to argue
that the govemment induced him to plea guilty by misrepresenting that an expert witness could
testify to the his intent to distribute drugs. § Def.’s Mot. at 5 ("The Government was
prohibit[ed] from inducing petitioner to had pled [sic] guilty to a ‘SHAM’ statute, because the
Criminal P. Rule No. 704(B), does prohibit [sic] the court from allowing an expart [sic] witness
to testify to the petitioner[‘s] ‘MENTAL INTENT’ to further distribute any drugs to an ‘UN-
KNOWN THIRD PARTY."’).
This argument was not raised on direct appeal; thus, the defendant must show "cause" for
the failure, as well as "actual prejudice" suffered as a result of the alleged error, to avoid
procedural default. United States v. Frady, 456 U.S. 152, 167-68 (1982). "[C]ause . . .
ordinarily tum[s] on whether the prisoner can show that some objective factor external to the
defense impeded counsel’s efforts to comply with the [relevant] procedural rule." Murray v.
Carrier 477 U.S. 478, 488 (1986); see also Bouslev v. United States, 523 U.S. 614, 621-23
(1998) (citing my for procedural default rule in the context of a guilty plea). For example,
the defendant may demonstrate "that the factual or legal basis for a claim was not reasonably
available to counsel, or that some interference by officials made compliance impracticable."
135 477 U.S. at 488 (citations and quotation marks omitted). To establish "actual prejudice,"
the defendant must show that the errors at his trial "worked to his 11 and substantial
disadvantage, infecting his entire trial with error of constitutional dimensions." I_cl. at l70. Thus
"to obtain collateral relief[,] a prisoner must clear a significantly higher hurdle than would exist
on direct appeal." § at 166.
Here, the Court finds that it need not address the merits of the defendant’s "sham statute"
argument because he is procedurally barred from raising it. The defendant offers no reason for
his failure to raise this claim on direct appeal, and the Court can think of none. Def.’s Mot. at 5.
But even setting aside the lack of cause, the defendant is unable to establish prejudice. First, the
defendant misrepresents the government’s case and intended use of an expert witness. At the
defendant’s plea hearing, the govemment noted that
[i]f this case were to have gone to trial, the govemment would have presented
expert testimony that the 41 Ziploc bags found in the defendant’s possession were
. . . packaged and in amounts consistent with distribution. The govemment would
further have provided expert testimony that the evidence recovered from the
defendant’s residence was consistent with use for processing, packaging, selling,
transferring[,] and trafficking narcotics in the District of Columbia.
Hr’g Tr. 30, Dec. ll, 2003. Hence, the expert would have testified that evidence, such as
weapons, scales, and large amounts of cash, found in the defendant’s home were consistent with
an intent to distribute, not that this defendant actually had an intent to distribute. I_d. at 29-31.
This testimony would be entirely consistent with Federal Rule of Evidence 704(b), which only
prohibits an expert witness from testifying as to whether a particular defendant did in fact have
such intent. See also In re Sealed Case, 99 F.3d 1175, 1178 (D.C. Cir. 1996) (finding that "the
expert’s testimony on whether the drugs in the house were consistent with personal use or with
distribution" was consistent with Rule 704(b) because it concerns @lg§ operandi of drug
traffickers and not the particular defendant’s mental state). Additionally, the Rule ll colloquy
made clear that the defendant pled guilty because of his actual guilt and not for any other reason
or inducement. Hr’g Tr. 46, Dec. ll, 2003. Thus, there are no errors here, let alone errors of
"constitutional dimensions." l~`@y, 456 U.S. at 170. According1y, the defendant’s "sham
statute" claim is procedurally barred.z
2. The defendant’s ineffective assistance of counsel claims
Next, the defendant argues that his counsel during plea and sentencing hearings, Shawn
Moore, was constitutionally ineffective for (l) "fail[ing] to challenge the tainted indictment," (2)
failing to challenge "the Grand Jury process," (3) "fail[ing] to file Pre-Trial Motions," (4)
negotiating "his own client’s guaranteed Constitutional Rights at a Plea Hearing," (5) failing to
challenge the Court’s ruling that his two sentences run consecutively, and (6) "fail[ing] to object
to an illegal search warrant." Def.’s Mot at 6. These claims are not procedurally barred despite
the defendant’s failure to raise them on direct appeal because ineffective assistance of counsel
claims are not subject to the procedural-default rule. Massaro v. United States, 538 U.S. at 504
("We hold that an ineffective-assistance-of-counsel claim may be brought in a collateral
proceeding under [Section] 2255, whether or not the petitioner could have raised the claim on
direct appeal."). However, because the Court finds that a number of the defendant’s allegations
are "vague, conclusory, and palpably incredible," Pollard, 959 F.2d at 1031, and furthermore that
any non-jurisdictional and non-sentencing claims were specifically waived by the defendant,
Hr’g Tr. 43-44, Dec. ll, 2003, his claims are without merit.
2 To the extent that the Court could construe the defendant’s "sham statute" argument to mean that he is alleging
that his own counsel did not properly advise him as to the govemment’s expert witness testimony, making it
essentially an ineffective assistance of counsel claim, the argument is without merit. An ineffective assistance of
counsel claim is not subject to the procedural default rule, Massoro v. United States, 538 U.S. 500, 504 (2003);
however, "a guilty plea cannot be attacked as based on inadequate legal advice unless counsel was not ‘a reasonably
competent attomey’ and the advice was not ‘within the range of competence demanded of attorneys in criminal
cases."’ trickland v. Washington, 466 U.S. 668, 687 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)). Given the overwhelming evidence consistent with the intent to distribute heroin, such as weapons, scales,
and other trafficking materials, Hr’ g Tr. 29-30, Dec. ll, 2003, any advice counsel may have given to the defendant
suggesting that he plea guilty would have been sound legal advice. The defendant also fails to show that he would
have declined to plea guilty if his counsel had not allegedly failed to clarify what expert testimony would be
admissible at trial. § United States v. Hugl_ies, 514 F.3d 15, 17 (D.C. Cir. 2008) (stating that defendant must show
a reasonable probability that the results would have been different but for counsel’s errors).
As to the defendant’s claims that Mr. Moore was deficient in preserving his constitutional
rights, first the defendant appears to contend that the Grand Jury process violates the Separation
of Powers doctrine by granting to a non-j udiciary body the power to establish whether a
defendant is to be indicted and charged. Def.’s Mem at 1. The defendant also argues that the
plea agreement and plea hearing, pursuant to which the defendant waived a number of
constitutional rights, are "unconstitutional" and part of "a joint-conspiracy [between the
defendant’s counsel and the Court] to deprive [the defendant] of his [c]onstitutional [r]ights
[sic]." Def.’s Mem. at 9. However, both practices (plea agreements and guilty pleas) are
ingrained in American jurisprudence and fundamental to American justice. Moreover, the ability
to waive one’s own constitutional rights is uncontroversial, §§ Indiana v. Edwards, 554 U.S.
164, _, 128 S. Ct. 23 79, 23 83-84 (2008) (noting that a criminal defendant may waive the right
to counsel); Florida v. Nixon, 543 U.S. 175, 187 (2004) (stating that a guilty plea is a waiver of
constitutional rights, including the right to trial by jury and protection against self-incrimination),
and the use of a grand jury to indict an individual for a maj or crime is not only allowed under the
Constitution, but it is an individual right that our Founding Fathers explicitly provided for in the
Bill of Rights, U.S. Const. amend. V. Thus, no counsel could be constitutionally deficient for
failing to raise these claims based solely on the occurrence of these events. United States v.
_Broiwn, 449 F.3d 154, 159 (D.C. Cir. 2006) ("Failure to raise a meritless claim is not evidence of
ineffective assistance."), overruled in part on other grounds by Dean v. United States, _ U.S. _,
129 S. Ct. 1849, 1852-53, 1856 (2009). These claims, therefore, are "palpably incredible" and
must be rejected for that reason. Pollard, 959 F.2d at 1031; see also United States v. Geraldo,
523 F. Supp. 2d 14, 21 (D.D.C. 2007) (Ko11ar-Kotelly, J.) (rejecting as palpably incredible a
claim of ineffective assistance of counsel premised on the defendant’s inability to understand his
counsel’s advice due to a language barrier, where the defendant was at all relevant times
provided with an interpreter).
As to the defendant’s claims that Mr. Moore was constitutionally ineffective for "fail[ing]
to challenge the tainted indictment," "fail[ing] to file pre-trial motions," failing to challenge the
Court’s imposition of consecutive sentences, and "fail[ing] to object to an illegal search
warrant[,]" Def.’s Mot at 6, these allegations are vague and conclusory, The defendant does not
describe or even hint at how his indictment was tainted, on what grounds Mr. Moore could have
challenged the search warrant, what other pre-trial motions his lawyer should have or could have
filed (no motion schedule was ever set because the defendant pled guilty), or on what grounds
Mr. Moore could have challenged the Court’s determination that the defendant’s sentences be
served consecutively. As to this last point, Mr. Moore did in fact request that the sentences be
served concurrently, but the Court denied the request.3 Hr’g Tr. 16, May 6, 2005 . Furthermore,
the defendant’s plea bargain entailed a waiver of all non-jurisdictional and non-sentencing
challenges to the defendant’s conviction, Hr’g Tr. 43-44, Dec. 1 1, 2003, and because the
defendant here does not claim that his plea was defective - that is, not entered into voluntarily or
intelligently ~ the Court must deem all of the defendant’s non-sentencing claims as waived, _see
United States v. Williams, 838 F. Supp. 1, 2-3 (D.D.C. 1993) (Gasch, J.) (rejecting a defendant’s
Section 2255 motion, because "supposed violations . . . occurred prior to her guilty plea and [did]
not affect the voluntary nature of that plea. Therefore, those issues [could not] be raised
collaterally. . . . [A defendant] ‘may only attack the voluntary and intelligent character of the
3 Even if Mr. Moore had not made this request, the Court would not find fault with the failure. There was no basis
for challenging the determination that the sentences be served consecutively, as 18 U.S.C. § 924(c)(1)(D)(ii)
provides that "no term of imprisonment imposed on a person under this subsection shall run concurrently with any
other term of imprisonment imposed on the person, including any term of imprisonment imposed for the crime of
violence or drug trafficking crime during which the firearm was used, carried, or possessed."
337
guilty plea by showing that the advice [the defendant] received from counsel was
constitutionally ineffective (quoting Tollett v. Henderson, 411 U.S. 258, 267 (1973))).
3. The defendant’s Rule 11 claim
The defendant next claims that he was "exposed to [a Rule] 11 violation[] when this
Court . . . imposed a [s]upervised [r]elease [t]errn . . . beyond the maximum Sentencing
Guideline Range," because the Court "did not [inform] the petitioner of the nature and
consequences of the [the] [s]upervised [r]elease [t]erm, which makes the [p]lea [b]argain
invalid." Def.’s Mot. at 8 (citing United States v. Thorne, 153 F.3d 130, 133-34 (4th Cir. 1998)
(permitting a defendant to withdraw his guilty plea because of the district court’s failure to
inform him "of the nature of supervised release or of the consequences attendant on its
violation")). Regardless of whether this claim rests on a different ground than the Rule 11 claim
raised and decided on direct appeal, the govemment is correct that this claim fails on the merits.
Gov’t’s Opp’n at 4 n.3. Federal Rule of Criminal Procedure ll(b)(l)(H) requires that the Court
advise a defendant of "any maximum possible penalty, including imprisonment, fine, and term of
supervised re1ease." Contrary to the defendant’s assertions, the Court did in fact inform him of
the terms and nature of supervised release; indeed, the Court apprised the defendant that he faced
a prison sentence, fine, and "supervised release for up to five years, which means that once you
finish your sentence, then you would be under the supervision of the Probation Department for
five years." Hr’ g Tr. 32-33, Dec. ll, 2003. Thus, the Court rejects this claim as well.
4. The defendant’s double jeopardy claim
Finally, the defendant argues that the Court relied upon a prior conviction in imposing his
sentence, thereby subjecting him to double jeopardy, and that he carmot waive a double jeopardy
claim, Def.’s Mot. at 9. Specifically, the defendant asserts that the application of the Career
10
Offender provision of the Sentencing Guidelines violates the Double Jeopardy Clause of the
Fifth Amendment. Def.’s Mem. at 4-5. But similar, if not identical, claims have been rejected
by the Supreme Court, se_e Witte v. United States, 515 U.S. 389, 402-06 (1995) ("Because
consideration of relevant conduct in determining a defendant’s sentence within the legislatively
authorized punishment range does not constitute punishment for that conduct, the instant
prosecution does not violate the Double Jeopardy Clause’s prohibition against the imposition of
multiple punishments for the same offense."), and the District of Columbia Circuit, § m
States v. Garrett, 959 F.2d 1005 , 1009 (1992) (rejecting a claim that the Career Offender
provision violates the Double Jeopardy Clause, as "‘ [t]he sentence as a . . . habitual criminal is
not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. lt is a
stiffened penalty for the latest crime, which is considered to be an aggravated offense because [it
is] a repetitive one."’ (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948))). Thus, Mr. Moore
was not deficient for failing to raise this meritless claim/1
III. Conclusion
The Court concludes that all of the defendant’s asserted grounds for release are without
merit. The motion and record conclusively show that the defendant is not entitled to relief, and
therefore, no evidentiary hearing is necessary. The defendant’s motion for post-conviction relief
pursuant to 28 U.S.C. § 2255 is denied.
4 The defendant also mentions the "unprofessional errors" of his counsel in relation to this claim. Def.’s Mot. at 9
("The petitioner cannot waive his double jeopardy claim[] before this [C]ourt[] due to trial counsel’s unprofessional
errors."). Again construing this m g filing liberally, the Court considers whether the defendant is alleging
ineffective assistance of counsel in making this Double Jeopardy argument. _See Toolasprashad, 286 F.3d at 5 83.
But because of the clear precedent on how the Career Offender Provision of the Sentencing Guidelines has been
construed in light of the Double Jeopardy Clause as cited above, § i, 515 U.S. at 402-06; Garrett, 959 F.2d at
1009, any failure of counsel to raise this argument would not have constituted a Sixth Amendment violation. Thus,
the Court finds that any ineffective assistance of counsel claim that the defendant may have raised on this point is
without merit.
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so oRDERED this jff<§y or sepiember, 2010.5
United States District Judge
5 An order will be issued contemporaneously with this memorandum opinion denying the defendant’s motion for
post-conviction relief pursuant to 28 U.S.C. § 2255.
12