United States v. Calvin Dyess

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-7335
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
CALVIN DOUGLAS DYESS, a/k/a Carlos, a/k/a Calcutta, a/k/a
Rawmel,
Defendant – Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. David A. Faber,
Senior District Judge. (2:08-cv-00849; 2:99-cr-00012-1)
Argued: May 16, 2013 Decided: September 16, 2013
Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Shedd wrote the opinion in
which Judge Niemeyer joined and in which Judge Gregory joined as
to Parts I, II, and IV. Judge Gregory wrote a dissenting
opinion as to Part III.
ARGUED: Jeffrey Michael Brandt, ROBINSON & BRANDT, P.S.C.,
Covington, Kentucky, for Appellant. Kimberly Riley Pedersen,
OFFICE OF UNITED STATES ATTORNEY, Alexandria, Virginia, for
Appellee. ON BRIEF: Neil H. MacBride, United States Attorney,
Alexandria, Virginia, for Appellee.
SHEDD, Circuit Judge:
Calvin Dyess pled guilty to conspiracy to distribute
cocaine, cocaine base, and marijuana, in violation of 21 U.S.C.
§ 846 and 21 U.S.C. § 841(b), and conspiracy to commit money
laundering, in violation of 18 U.S.C. § 1956, and was sentenced
to life imprisonment. We affirmed his conviction and sentence
on direct appeal. United States v. Dyess, 478 F.3d 224 (4th
Cir. 2007) (Dyess I). Dyess then filed a 28 U.S.C. § 2255motion, which the district court denied. Dyess v. United
States, 2011 WL 3667528 (S.D. W.Va. 2011) (Dyess II). Dyess now
appeals and, for the following reasons, we affirm.
I.
The facts and procedural history of Dyess’ case are
thoroughly recounted in our earlier opinion. See Dyess I at
226-33. Briefly, and as relevant here, Dyess and several co-
conspirators were indicted in a thirteen-count indictment
arising from their operation of a large-scale drug conspiracy in
Charleston, West Virginia, from 1995 to 1998. 1 Before trial, the
Government met with Dyess, indicating the strength of its case
against him and informing him that he was likely to receive a
life sentence unless he was acquitted or pled guilty and offered
1
The criminal investigation into Dyess’ organization led to
more than 20 criminal convictions, including drug suppliers from
New York.
2
substantial assistance. Just days after meeting with the
Government, Dyess entered a plea agreement whereby he agreed to
plead guilty to conspiring to distribute cocaine, cocaine base,
and marijuana and conspiring to commit money laundering. In
exchange, the Government agreed to dismiss the remaining counts.
Among the counts dismissed was a continuing criminal enterprise
charge, 21 U.S.C. § 848, which carried a 20-year mandatory
minimum sentence. At the plea hearing, the district court
expressly told Dyess (among other things) that he was facing a
sentence of ten years to life imprisonment on the drug
conspiracy count. Dyess stated that he understood, and the
court accepted his plea.
A presentence report (PSR) was prepared for Dyess, finding
that he was responsible for 20 kilograms of cocaine, 80
kilograms of cocaine base, and 272.16 kilograms of marijuana.
These drug amounts yielded a base-offense level of 38 and, when
coupled with several enhancements, resulted in a guidelines
range of life imprisonment. Dyess objected to the drug amounts
and, at a contested sentencing hearing, the district court heard
from multiple witnesses about the scope of Dyess’ drug
enterprise. For example, one witness, Leon Mitchell, testified
that he and Dyess handled between 75 and 100 kilograms of
cocaine, half of which they cooked into crack cocaine. The
3
district court upheld the PSR’s findings and accordingly
sentenced Dyess to life.
Dyess timely appealed. While Dyess’ appeal was pending,
the Government was contacted by Rachel Ursala Rader, Dyess’ wife
during the conspiracy. Rader informed the Assistant U.S.
Attorney (AUSA) that, during the investigation, she had engaged
in a sexual relationship with William Hart, a detective and one
of the lead investigators in Dyess’ case. Rader also informed
the AUSA that Hart had let her keep certain drug proceeds that
she offered to turn over and had helped to craft her testimony
at the sentencing hearing. When presented with this
information, we issued an order remanding the case for
appropriate proceedings.
On remand, Dyess moved to dismiss the indictment for
government misconduct, to withdraw his plea, and to be
resentenced. 2 The district court denied the first two requests
and deferred ruling on the motion for resentencing pending an
evidentiary hearing. Prior to this evidentiary hearing,
however, the district judge (Judge Haden) passed away. The case
2
Dyess also moved to disqualify the U.S. Attorney’s Office
for the Southern District of West Virginia. The district court
granted this motion. United States v. Dyess, 231 F.Supp.2d 493(S.D.W.Va. 2002). The court found no wrongdoing by the office,
but concluded that the attorneys could be called as witnesses in
future proceedings. Since that time, the Government has been
represented by Special Assistants to the Attorney General.
4
was reassigned to District Judge Faber, who then held an
evidentiary hearing limited to the issue of whether Hart’s
misconduct and the perjury of Rader (and several others) at the
sentencing affected Dyess’ sentence. The court explained that
if the answer was “yes,” a new sentencing would be held. After
the hearing, which included testimony from witnesses impacted by
Hart’s misconduct, the district court found the tainted
testimony did not affect Dyess’ sentence and declined to hold a
resentencing. Dyess appealed, and we affirmed. Dyess I, 478
F.3d at 227.
In 2008, Dyess filed a motion to vacate his sentence under
28 U.S.C. § 2255. The district court eventually denied that
motion. Dyess II, 2011 WL 3667528, at *13. Dyess filed this
appeal, and this court granted Dyess a COA on six claims: (1)
whether the district court erred in failing to address all
claims raised in Dyess’ § 2255 motion filed on September 29,
2008; (2) whether Dyess was sentenced in violation of Apprendi
v. New Jersey, 530 U.S. 466 (2000); (3) whether Dyess’ trial
counsel was ineffective for failing to discover and disclose
Hart’s misconduct; (4) whether Dyess’ trial counsel was
ineffective for failing to object to the superseding
indictment’s lack of specific drug quantities and in advising
Dyess to plead guilty to the indictment; (5) whether Dyess’
remand counsel was ineffective for failing to call all witnesses
5
from Dyess’ sentencing hearing to testify at the evidentiary
hearing; and (6) whether Dyess’ remand counsel was ineffective
for failing to effectively challenge Dyess’ guilty plea on
remand. We review the district court’s legal conclusions in
denying Dyess’ § 2255 motion de novo and its factual findings
for clear error. United States v. Stitt, 552 F.3d 345, 350 (4th
Cir. 2008).
II.
Dyess’ first contention is that the district court erred in
failing to address all of his § 2255 claims. Dyess filed a
“letter” with the court in June 2008 challenging his sentence
and requesting appointment of counsel. The district court
denied the motion for counsel, construed the letter as a § 2255
motion, and ordered Dyess to file the appropriate paperwork
listing all his grounds for relief. Dyess then filed a § 2255
motion on September 29, 2008, listing out approximately 30
claims for relief, roughly 25 of which consisted of a single
sentence with no further explanation or factual development. In
February 2010, Dyess filed a request to file an “amended” § 2255
petition, raising 16 claims, most of which alleged ineffective
assistance of counsel. Several of these claims were repeated
from his earlier filings. The district court ruled that,
“[g]iven Mr. Dyess’ later submission” it was appropriate to
6
consider only the claims in the amended petition. Dyess II,
2011 WL 3667528, at *1.
Dyess claims that the court erred in considering only the
claims in the amended complaint and that the case should be
remanded for consideration of the roughly 40 claims raised in
his initial § 2255 motion and several letters. We disagree.
With the exception of the Apprendi claim addressed below, Dyess
has never identified which of these claims he believes to have
merit. Most, as the Government notes, fail the requirement that
a habeas petition “is expected to state facts that point to a
real possibility of constitutional error.” Blackledge v.
Allison, 431 U.S. 63, 75 n.7 (1977) (internal quotation marks
omitted). The rules governing habeas proceedings make this very
point:
If it plainly appears from the motion and any attached
exhibits, and the record of prior proceedings that the
moving party is not entitled to relief, the judge must
dismiss the motion.
Rule 4(b), Rules Governing Section 2255 Proceedings for the
United States District Courts.
Thus, “vague and conclusory allegations contained in a §
2255 petition may be disposed of without further investigation
by the District Court.” United States v. Thomas, 221 F.3d 430,
437 (3d Cir. 2000). See also Jones v. Gomez, 66 F.3d 199, 204
(9th Cir. 1995) (noting “conclusory allegations which are not
supported by a statement of specific facts do not warrant habeas
7
relief”) (internal quotation marks omitted); Andiarena v. United
States, 967 F.2d 715, 719 (1st Cir. 1992) (holding claim that
included “wholly conclusory” “abstract allegation” was “properly
subject to summary dismissal”). We do not believe the district
court erred in limiting its review to the 16 claims in the
amended petition that were supported by facts and argument,
particularly where many of the claims in the amended § 2255
motion were also raised in the original filing and the rest
consisted only of vague and conclusory allegations.
III.
Dyess next claims that his sentence violates Apprendi
because the indictment did not allege a specific drug quantity.
Under Apprendi, “[o]ther than the fact of a prior conviction,
any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.
In United States v. Promise, 255 F.3d 150, 156-57 (4th Cir.
2001) (en banc), we held that Apprendi requires drug amounts
under § 841(b) to be alleged in the indictment. Dyess thus
argues that, because his conviction and sentence did not become
8
final until after Apprendi, 3 the superseding indictment’s failure
to supply a drug amount limits his maximum sentence to 20 years. 4
Dyess’ argument fails for two reasons. First, it is well
settled that Dyess cannot “circumvent a proper ruling . . . on
direct appeal by re-raising the same challenge in a § 2255
motion.” United States v. Linder, 552 F.3d 391, 396 (4th Cir.
2009). See also United States v. Roane, 378 F.3d 382, 396 n.7
(4th Cir. 2004) (noting that, absent “any change in the law,”
defendants “cannot relitigate” previously decided issues in a §
2255 motion); Boeckenhaupt v. United States, 537 F.2d 1182, 1183
(4th Cir. 1976) (holding criminal defendant cannot “recast,
under the guise of collateral attack, questions fully considered
by this court [on direct appeal]”). Dyess raised his Apprendi
argument on remand to the district court and raised it in his
brief to us in Dyess I. In Dyess I, we specifically noted that
Dyess “argued for re-sentencing on the basis of the United
States Supreme Court’s intervening decision in Apprendi,” that
the district court “denied” this relief, and that we “affirm the
convictions and sentences.” Dyess, 478 F.3d at 227. This
3
Apprendi was decided in 2000, and our decision affirming
his conviction was issued in 2007.
4
21 U.S.C. 841(b)(1)(C) provides that distribution of an
undetermined amount of a schedule I or II controlled substance
“shall be sentenced to a term of imprisonment of not more than
20 years.”
9
conclusion plainly bars Dyess from raising this claim in his §
2255 motion. 5
Moreover, even assuming Dyess could raise this claim, under
the facts of this case, it still fails. Dyess waited until the
remand from this court to raise the issue, well after judgment
issued. Accordingly, any Apprendi claim Dyess raises would be
reviewed for plain error. See Fed. R. Crim. P. 52(b). “To
obtain relief under plain-error review, [a criminal defendant]
must first establish that the district court erred, that the
error was plain, and that it affected his substantial rights.”
United States v. Abdulwahab, -- F.3d --, 2013 WL 1789741, at *9
(4th Cir. 2013) (internal quotation marks omitted). Even if a
defendant makes this showing, “we have discretion whether to
5
Dyess argues that we did not specifically discuss his
Apprendi claim and focused instead on his argument under Booker
v. United States, 543 U.S. 220 (2005). There is no requirement
that a court specifically discuss every issue raised by an
appellant. See Affymax, Inc. v. Ortho-McNeil-Janssen Pharm.,
Inc., 660 F.3d 281, 285 (7th Cir. 2011) (noting “[f]ederal
courts . . . often let issues pass in silence”); United States
v. Patel, 879 F.2d 292, 295 (7th Cir. 1989) (denying rehearing
petition “complain[ing] about the failure of the court to
discuss every issue,” because “[w]hen issues patently lack
merit, the reviewing court is not obliged to devote scarce
judicial resources to a written discussion of them”). Dyess
raised Apprendi in his direct appeal, we noted that he had made
the argument to the district court, and we affirmed his
conviction and sentence in all respects. Nothing more is
required. To the extent Dyess believes we overlooked his
argument, the remedy was to file a petition for rehearing or—as
Dyess unsuccessfully did—seek a writ of certiorari to the
Supreme Court, not to file a § 2255 motion.
10
recognize the error, and should not do so unless the error
seriously affects the fairness, integrity or public reputation
of judicial proceedings.” United States v. Hargrove, 625 F.3d
170, 184 (4th Cir. 2010) (internal quotation marks omitted).
In United States v. Cotton, 535 U.S. 625, 633 (2002), the
Court held that Apprendi errors under §841(b) should not be
recognized on plain error review when the evidence as to drug
quantity was “overwhelming” and “essentially uncontroverted.”
In this case, because “a cursory review of the record reveals
that the conspiracy charged here indisputably involved
quantities of cocaine and cocaine base far in excess of the
minimum amounts necessary to sustain the sentences,” any
Apprendi error “does not seriously affect the fairness,
integrity, or public reputation of judicial proceedings so as to
warrant notice.” United States v. Mackins, 315 F.3d 399, 408
(4th Cir. 2003). 6
IV.
Dyess’ remaining claims challenge the effectiveness of his
counsel, both at the time he pled guilty and on remand from this
6
To qualify for a life sentence under § 841(b)(1)(A), a
defendant must be found responsible for, as relevant here, at
least 5 kilograms of cocaine or 280 grams of cocaine base. As
discussed above, one witness testified that the conspiracy
involved at least 75 to 100 kilograms of cocaine, of which half
was cooked into cocaine base.
11
court. In order to establish ineffective assistance, Dyess must
show “(1) that his attorney’s performance ‘fell below an
objective standard of reasonableness’ and (2) that he
experienced prejudice as a result, meaning that there exists ‘a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different.’” United States v. Fugit, 703 F.3d 248, 259 (4th
Cir. 2012) (quoting Strickland v. Washington, 466 U.S. 668, 687–
88, 694 (1984)).
A.
Dyess’ first two ineffective assistance claims allege that
trial counsel was ineffective for failing to object to the lack
of drug quantity in the indictment and for failing to discover
Hart’s misconduct. These claims both relate to Dyess’ decision
to plead guilty. “In that situation, a person must demonstrate
‘a reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted on going
to trial.’” Fugit, 703 F.3d at 259 (quoting Hill v. Lockhart,
474 U.S. 52, 59 (1985)). The Supreme Court recently reaffirmed
that “[s]urmounting Strickland’s high bar is never an easy task”
in the guilty-plea setting. Padilla v. Kentucky, 130 S.Ct.
1473, 1485 (2010). Thus, Dyess must convince us that the
decision to go to trial “would have been rational under the
circumstances.” Id. Dyess’ “subjective preferences, therefore,
12
are not dispositive; what matters is whether proceeding to trial
would have been objectively reasonable in light of all the
facts.” Fugit, 703 F.3d at 260. Given this standard, we
conclude the district court correctly dismissed Dyess’ claims
against trial counsel.
1.
Dyess’ first claim alleges that trial counsel failed to
investigate and discover Hart’s affair with Dyess’ wife prior to
Dyess’ guilty plea. Dyess, however, raised a variation on this
claim in his direct appeal, arguing that his attorney “rendered
ineffective assistance by failing to uncover Hart and Miss
Rader’s love affair and anticipate the impact it would have at
sentencing.” Dyess I, 478 F.3d at 238. We rejected Dyess’
claim, finding that “the federal prosecutors” had “no knowledge”
of the affair until well after sentencing, and Dyess “offer[ed]
no indication as to why his attorney should be expected to have
some special knowledge of the situation.” Id.Even assuming our earlier conclusion does not bar this
claim, it lacks merit. We have indicated that “[a]lthough
counsel should conduct a reasonable investigation into potential
defenses, Strickland does not impose a constitutional
requirement that counsel uncover every scrap of evidence that
could conceivably help their client.” Green v. French, 143 F.3d
865, 892 (4th Cir. 1998) overruled on other grounds by Williams
13
v. Taylor, 529 U.S. 362 (2000). Dyess claims that, after his
guilty plea but prior to sentencing, he learned from fellow
inmates that Hart and Rader had been seen holding hands at
nightclubs. (J.A. 852). Dyess alleges that he told his counsel
this fact on two occasions, including once after seeing Hart at
the jail. According to Dyess, counsel hired an investigator but
was unable to substantiate Dyess’ claim and declined to raise
the issue at sentencing without concrete evidence. Dyess also
alleges that counsel held “meetings” with him “to develop a plan
of action, while Dyess told them all that he could learn.”
(J.A. 852). Dyess’ counsel thus conducted an appropriate
investigation—all that Strickland requires. While a failure to
investigate a “critical” witness can be ineffective assistance,
see Huffington v. Nuth, 140 F.3d 572, 580 (4th Cir. 1998), we
have never held that an attorney’s hiring of an investigator who
fails to discover evidence renders that attorney ineffective.
Although we now know that Dyess’ suspicions were true, that does
not make counsel’s failure to uncover the affair in 1999
ineffective assistance.
Moreover, Dyess cannot show prejudice. Dyess was facing a
potential life sentence; he pled guilty shortly after the
Government informed him that his only opportunity to avoid a
life sentence was to be acquitted or to plead guilty and offer
14
substantial assistance in exchange for a sentence reduction. 7
Dyess then failed to offer assistance. The Government had
overwhelming evidence of Dyess’ guilt—his arrest and prosecution
were the result of a long investigation complete with wiretaps,
drug buys, and co-conspirator testimony. Dyess also received a
substantial benefit from pleading guilty—the Government
dismissed nine of the eleven counts against him, one of which
carried a 20-year mandatory minimum. Cf Fugit, 703 F.3d at 260-
61 (finding no prejudice from alleged ineffective assistance
where Government would have offered overwhelming evidence at
trial and defendant would have faced a longer sentence). We
recognize that Dyess ultimately received a life sentence despite
pleading guilty. This fact, however, does not change our
analysis because, at the time Dyess entered his plea, a rational
defendant would have recognized that a conviction inevitably
would lead to a life sentence. Conversely, entering a plea
agreement, which removed a count with a higher mandatory minimum
(20 years under § 848 versus ten years under § 841(b)), and
offering substantial assistance provided the best opportunity to
avoid a life sentence. While Dyess subjectively claims he would
7
United States Sentencing Guideline Manual § 5K1.1 provides
that, “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed
an offense, the court may depart from the guidelines.”
15
have gone to trial had he known of Hart and Rader’s
relationship, objectively a reasonable defendant would have pled
guilty and offered substantial assistance.
2.
We also find Dyess’ second ineffective claim against trial
counsel lacks merit. Dyess claims that, in light of Jones v.
United States, 526 U.S. 227 (1999), counsel should have
recognized that drug weights were an element of the offense
under § 841(b) that must be charged in the indictment. In
Jones, the Supreme Court examined the federal carjacking statute
and held that certain sentencing enhancements applicable to that
statute were actually elements of the charged offense. Id. at
239. The Court noted that its decision was based on the concern
that “under the Due Process Clause of the Fifth Amendment and
the notice and jury trial guarantees of the Sixth Amendment, any
fact (other than prior conviction) that increases the maximum
penalty for a crime must be charged in the indictment, submitted
to a jury, and proven beyond a reasonable doubt.” Id. at 243
n.6.
Dyess argues that, based on Jones, a reasonably prudent
attorney would have raised the argument that drug weight was an
element of the offense under § 841(b) that had to be indicted
and tried to the jury. Dyess’ claim is foreclosed by precedent.
In United States v. McNamara, 74 F.3d 514, 516 (4th Cir. 1996),
16
we held that “an attorney’s failure to anticipate a new rule of
law was not constitutionally deficient.” In that case, we
rejected the contention that counsel was ineffective “for
failing to preserve an issue at trial based merely on the
Supreme Court’s grant of certiorari in a case which raised the
issue.” Id. See also Lewis v. Wheeler, 609 F.3d 291, 310 (4th
Cir. 2010) (finding no ineffective assistance for failing to
make argument that was not necessarily forecasted by Supreme
Court decision and would have represented an extension of that
decision).
Jones was decided after Dyess’ superseding indictment but
prior to his guilty plea and sentencing. At the time Jones was
decided, “every federal circuit court considered drug quantity
to be a sentencing factor,” United States v. Sanders, 247 F.3d
139, 147 (4th Cir. 2001), a view courts adhered to even after
Jones, see United States v. Taylor, 210 F.3d 311, 320 (5th Cir.
2000); United States v. Smith, 205 F.3d 1336, 2000 WL 139250(4th Cir. 2000) (unpublished). Indeed, it was the “universal
practice” to contest drug weights at sentencing. United States
v. Carrington, 301 F.3d 204, 212 (4th Cir. 2002). We did not
extend Jones and Apprendi to § 841(b) until 2001, more than two
years after Dyess’ sentencing. See Promise, 255 F.3d at 156-57.
Accordingly, Dyess’ counsel was not deficient by failing to
anticipate Apprendi.
17
Moreover, Dyess again cannot show that any (assumed)
deficient performance by trial counsel prejudiced him. As the
Government notes, if Dyess had raised this objection, the
Government could have simply issued a superseding indictment
with drug weights or proceeded under a criminal information.
Given the overwhelming evidence in support of the drug weights,
there was no obstacle to pursuing either course. In addition,
as previously discussed, pleading guilty and offering
substantial assistance was, objectively, Dyess’ best option to
avoiding a potential term of life imprisonment.
B.
Dyess’ final two claims allege that remand counsel was
ineffective. We find both of these claims to be without merit.
1.
Dyess first argues that remand counsel failed to call all
of the necessary witnesses at the evidentiary hearing involving
Hart’s misconduct. As noted above, in Dyess’ direct appeal, we
remanded for appropriate proceedings. On remand, Dyess moved
for, among other relief, a resentencing. The district court
granted an evidentiary hearing to address any taint at the
sentencing, but “defer[red] decision on Defendants’ motion for
resentencing until after the evidentiary hearing.” (J.A. 577).
The only witnesses whose testimony was possibly tainted by
Hart’s misconduct were Rader, Hart, Hart’s partner Detective
18
Henderson, Lori Cummings (Dyess’ girlfriend), and Benjamin
Green. 8
At the opening of the hearing the district court (Judge
Faber) reiterated the hearing’s limited scope:
[I]t seems to me the inquiry is really pretty simple.
Maybe I’m oversimplifying things, but we have a record
of the sentencing, we have a record of the evidence
that was before Judge Haden that he based his ruling
on. It seems to me that my task—and you can correct
me if you disagree with this, and I hope you will. My
task is to look at that in the light of what we know
now and see if he relied, to any extent, on any of the
information that we now know to be false or tainted [
... ] It seems to me that’s the simple inquiry. And
we know—we have a record of what he looked at, we have
a record of the information that’s come to light since
then, and the issue is whether the bad information was
considered by him or not.
(J.A. 590).
At the evidentiary hearing, Dyess’ counsel called Rader,
Hart, Henderson, Cummings, Green, 9 and the probation officer.
The AUSA who originally prosecuted Dyess also testified. Thus,
all of the witnesses relevant to the evidentiary hearing were
called. Dyess’ claim is targeted at the fact that the
8
Cummings and Green filed affidavits on Dyess’ behalf
alleging that their prior testimony against Dyess at his earlier
sentencing (Green) and at the grand jury (Cummings) was
fabricated and that Hart engaged in misconduct with them. Both
Cummings and Green recanted these affidavits, however, and
admitted that Dyess instructed them to sign and file them.
9
Green ultimately did not testify; the district court,
however, took judicial notice of the fact that “Green had
subsequently recanted the affidavit” and “entered into a plea
agreement.” (J.A. 752).
19
evidentiary hearing was limited in scope and did not encompass
all of the voluminous testimony from his first sentencing
hearing. That was the district court’s decision, one which we
affirmed on direct appeal.
Moreover, we give counsel wide latitude in determining
which witnesses to call as part of their trial strategy. See
Wilson v. Greene, 155 F.3d 396, 404 (4th Cir. 1998) (quoting
Pruett v. Thompson, 996 F.2d 1560, 1571 n. 9 (4th Cir. 1993))
(“Decisions about what types of evidence to introduce ‘are ones
of trial strategy, and attorneys have great latitude on where
they can focus the jury’s attention and what . . . evidence they
can choose not to introduce.’”). Here, even now, Dyess offers
nothing more than speculative conclusions in explaining who
remand counsel failed to call and what aid their testimony would
have provided to Dyess’ case. Given the limited scope of the
evidentiary hearing, and the deference afforded to counsel in
making strategic decisions, Dyess cannot show remand counsel was
deficient on this ground.
2.
Dyess’ second allegation against remand counsel fares no
better. Dyess contends that remand counsel failed to
“effectively challenge” his guilty plea on remand. Dyess moved
to withdraw his guilty plea on remand, arguing that it was not
knowing and voluntary and that the Government breached the
20
agreement. The district court denied this motion, and we
affirmed. Dyess I, 478 F.3d at 237. We found that Dyess’
motion was “post-sentencing” and could succeed only if the
“underlying plea proceedings were marred by a fundamental defect
that inherently resulted in a complete miscarriage of justice,
or in omissions inconsistent with rudimentary demands of fair
procedure.” Id. (internal quotation marks omitted). Applying
this standard, we affirmed the denial of the motion.
Importantly, we rejected Dyess’ claim that his plea was
unknowing because he faced a life sentence and because trial
counsel failed to uncover the Hart/Rader relationship.
In his § 2255 motion, Dyess claimed ineffectiveness on this
ground because his remand counsel should have based the
withdrawal motion on “several lies” that his trial counsel told
him. Dyess II, 2011 WL 3667528, at *11. The district court
rejected this ground by recounting that Dyess did move to
withdraw his plea on remand, and that his § 2255 motion was
unsupported by anything but conjecture about the supposed “lies”
from counsel. Before us, Dyess now argues that his plea should
have been attacked under Apprendi. Dyess, however, did not
raise this claim to the district court. United States v. Muth,
1 F.3d 246, 250 (4th Cir. 1993) (court of appeals will not
address contentions raised for the first time on appeal).
21
Moreover, even assuming the claim is properly before us, it
fails on the merits because Dyess cannot show prejudice.
Although Dyess’ counsel did not raise Apprendi as a ground for
withdrawing his guilty plea, Dyess, acting pro se, did raise
that argument, and the court rejected it. (J.A. 561) (noting
“[Dyess] argues pro se that his plea was not knowing because no
drug quantity was stated in the indictment” and rejecting the
argument in light of Cotton). Dyess has not shown how that
result would have differed if counsel had made the argument, and
it is unclear that it would have. See United States v.
Martinez, 277 F.3d 517, 533 (4th Cir. 2002) (declining to
recognize Apprendi error during Rule 11 colloquy because plea
resulted in significant benefits to defendant, indicating no
reasonable belief that defendant would have withdrawn plea).
This claim thus also lacks merit.
V.
For the foregoing reasons, we affirm the district court’s
denial of Calvin Dyess’ § 2255 motion.
AFFIRMED
22
GREGORY, Circuit Judge, dissenting as to Part III:
When we decided this case in 2007 on direct appeal, the
Supreme Court had made clear that any fact increasing the
maximum penalty for a crime must be charged in the indictment.
United States v. Cotton, 535 U.S. 625, 627 (2002); Apprendi v.
New Jersey, 530 U.S. 466, 476 (2000); Jones v. United States,
526 U.S. 227, 243 n.6 (1999). We consider this part of the
constitutional test under Apprendi. United States v. Promise,
255 F.3d 150, 156-57 (4th Cir. 2001) (en banc). In his argument
before this Court on direct appeal, Dyess contended there was
Apprendi error because the indictment failed to allege the drug
quantity that increased his maximum sentence to life
imprisonment. On direct appeal, we did not discuss nor decide
whether the indictment itself was defective under Apprendi.
United States v. Dyess, 478 F.3d 224 (4th Cir. 2007). The
majority insists today that our muteness was in fact a decision
sub silentio against Dyess on his Apprendi argument. I
certainly agree with the majority that “a criminal defendant
cannot ‘recast, under the guise of collateral attack, questions
fully considered by this court [on direct appeal].’” Ante 10
(quoting Boeckenhaupt v. United States, 537 F.2d 1182, 1183 (4th
Cir. 1976)) (emphasis added). However, we did not “fully
23
consider” Dyess’s Apprendi argument. 1 We conducted an analysis
of Dyess’s argument under United States v. Booker, 543 U.S. 220(2005), a progeny of Apprendi. See Dyess, 478 F.3d at 240.
But, beyond noting that Dyess raised an Apprendi challenge, we
did not address his straightforward argument that the indictment
violated Apprendi for failing to allege a drug quantity.
The omission is particularly odd given that Judge Haden
recognized the viability of Dyess’s argument. When we first
remanded this case for further proceedings after the revelations
of government misconduct, Judge Haden explained that “[b]ecause
the superseding indictment in these cases did not state a drug
quantity, at any resentencing this Court is limited to the
twenty-year statutory maximum of § 841(b)(1)(C).” United States
v. Dyess, 293 F. Supp. 2d 675, 693 (S.D. W. Va. 2003). I would
find that our silence on the matter in such an extraordinary
case was an oversight that permits us to proceed with a full
analysis on habeas review.
1
Of course, it is true that a court need not explicitly
address each and every argument to decide and dispense of that
argument. See Malbon v. Penn. Millers Mut. Ins. Co., 636 F.2d
936, 939 n.8 (4th Cir. 1980) (explaining that it is not
“absolutely necessary” that a court specifically recite and
discuss each argument advanced by the parties). However, there
is nothing that requires that we interpret a court’s silence on
an argument as a decision rejecting the argument on its merits.
24
Even though the majority holds that Dyess cannot raise his
Apprendi claim in his habeas petition, it offers an analysis of
the merits of the claim. That analysis begins with the
assertion that we should apply plain error review because “Dyess
waited until the remand from this court to raise the issue
. . . .” Ante 10. The majority treats this case as if it was a
run-of-the-mill drug prosecution, giving insufficient weight to
misconduct by the lead investigator and key witness for the
prosecution. Our remand in response to revelations of this
pervasive misconduct amounted to pressing a reset button -- it
thrust the case back into a pre-sentencing posture. Because
Dyess raised his Apprendi argument with particularity while the
case was in this pre-sentencing posture, we are obliged to apply
the harmless error standard of review. Fed. R. Crim. P. 52(a);
United States v. Robinson, 460 F.3d 550, 557 (4th Cir. 2006).
Under the harmless error standard, a defendant is “entitled
to relief if the error has affected his substantial rights.”
United States v. Rodriguez, 433 F.3d 411, 416 (4th Cir. 2006).
Significantly, under harmless error review, the government bears
the burden of establishing that the error did not affect the
defendant’s substantial rights. Id. Because Apprendi error is
constitutional in nature, the government must establish that it
was harmless beyond a reasonable doubt. See Chapman v.
California, 386 U.S. 18, 24 (1967); United States v. Mackins,
25
315 F.3d 399, 405 (4th Cir. 2003) (applying the Chapman burden
to Apprendi error).
When a sentence violates Apprendi because the underlying
indictment fails to allege drug quantities sufficient to raise
the maximum sentence, a defendant’s substantial rights are
violated. Promise, 255 F.3d at 160. Here, the indictment did
not allege a drug quantity. As Judge Haden indicated, Dyess’s
maximum sentence should therefore have been twenty years, not
life.
Because the government assumes that plain error review
should apply, it makes no explicit attempt on appeal to carry
its high burden of proving that the error was harmless beyond a
reasonable doubt. However, the government argues that Dyess’s
admissions in his plea agreement offer adequate support for his
life sentence. Normally, a defendant’s admission of requisite
drug quantities in a plea agreement cures Apprendi error in the
indictment. See, e.g., United States v. Flagg, 481 F.3d 946,
950 (7th Cir. 2007); United States v. Silva, 247 F.3d 1051, 1060
(9th Cir. 2001). But, once again, this is far from being a
normal case. Judge Haden, who had been on the bench for some
thirty-four years before he passed away, observed upon remand
that “[t]his case presents questions of ethical conduct and the
appearance of impropriety . . . unprecedented in this Court’s
experience. The lead AUSA who prosecuted this case also managed
26
case agents and witnesses who allegedly (and by their own
admissions) stole drug proceeds, suborned perjury, lied under
oath, and tampered with witnesses.” United States v. Dyess, 231
F. Supp. 2d 493, 495 (S.D. W. Va. 2002). The lead investigator
made a full-fledged and successful effort to woo Dyess’s wife,
Ursula Rader, even marrying her after Dyess was sentenced. J.A.
624. He literally crafted exhibits to illustrate drug quantity
that Rader and he referred to while giving testimony at Dyess’s
sentencing hearing. J.A. 621-23.
After learning of the lead investigator’s misconduct, we
remanded the case for further proceedings. J.A. 508. Rather
than testify at an evidentiary hearing designed to gauge the
impact his misconduct had on the evidence, the lead investigator
claimed his Fifth Amendment right to remain silent. Amazingly,
it appears the government did not compel his testimony by
providing immunity. Nor did the government compel testimony
after he entered a guilty plea to the charge against him --
misappropriation of government funds of $1,000 or less. 2 As a
result, we have never truly learned the extent to which his
misconduct tainted the evidence against Dyess.
2
At oral argument, the government was unable to provide any
clarity regarding the prosecution of the lead investigator other
than that he pled guilty to this charge.
27
Given that Dyess’s admissions took place in the context of
rampant government wrongdoing, they should not prevent us from
noticing Apprendi error. The fairness of a plea goes well
beyond a question of guilt or innocence. See Stephanos Bibas,
Regulating the Plea-Bargaining Market: From Caveat Emptor to
Consumer Protection, 99 Cal. L. Rev. 1117, 1139-40 (2011). When
a defendant makes a decision to plea, he must weigh the
“advantages and disadvantages of a plea agreement” against other
possible scenarios. See Padilla v. Kentucky, 130 S. Ct. 1473,
1484 (2010). Here, the appearance of advantages and
disadvantages was warped by rife government misconduct. As
such, Dyess’s admission to drug quantity should not be
dispositive in our Apprendi analysis.
Even if plain error applies to this case, as the majority
contends, Cotton does not control the outcome. The majority
correctly explains that in Cotton, the Supreme Court declined to
notice plain error under the fourth prong of the test put
forward in United States v. Olano, 507 U.S. 725, 732 (1993),
because evidence of drug quantity was “overwhelming,” and
“essentially uncontroverted.” Ante 11 (quoting Cotton, 535 U.S.
at 633). Ultimately, the Cotton Court found that while there
may have been plain Apprendi error, there was “no basis for
concluding that the error seriously affected the fairness,
28
integrity, or public reputation of judicial proceedings.”
Cotton, 535 U.S. at 632-33.
Unlike in Cotton, the pervasive nature of the misconduct
committed by the government in this case has discredited a
substantial amount of the evidence against Dyess. For instance,
Rader admitted that she lied when she testified that she created
the demonstrative exhibits illustrating the quantity of drugs
she had observed Dyess handle. See J.A. 89-94, 621-24. As
mentioned above, the lead investigator created those exhibits.
J.A. 621. He then coached Rader on how to testify about the
exhibits, and became angry and abusive when she told him she
could not remember or did not know how much drugs she had seen.
J.A. 623-24.
While we may have affirmed the district court’s finding that
sufficient untainted evidence remained to sustain the
conviction, it is undeniable that government misconduct in this
case severely weakened the evidence against Dyess. The
remaining untainted evidence is not “overwhelming” and
“essentially uncontroverted.” See Cotton, 535 U.S. at 633.
Further, it is hypocrisy of the first order for the government
to proclaim that we should not notice plain error because there
has been no damage to the “fairness, integrity or public
reputation of judicial proceedings.” See id. The lead
investigator’s behavior and misconduct undermined the judicial
29
proceedings in this case. The best way for the prosecution to
repair that damage would have been to concede to re-sentencing
in a conciliatory effort to condemn this mess to history.
Instead, the government charges headlong towards securing a life
sentence under these troubling circumstances. I cannot condone
this. I respectfully dissent.
30