UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA, :
:
v. : Cr. No. 90-454-01 (JGP)
:
xxxxxxxxxx, :
:
Defendant. :
MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE
AND INCORPORATED MEMORANDUM OF FACTS AND LAW
Defendant xxxxxxxxxx, through counsel, respectfully moves this Court, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct the sentence he received in this case. As grounds for his Motion, Mr. * states as follows:
1. This Motion is based upon all the files, records and proceedings in this case.
2. On October 5, 1993, a three-count indictment was filed against Mr. xxx and a codefendant, xxxxxxx. Count One charged both defendants with possession with intent to distribute more than five grams of cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and (b)(1)(B)(iii). Count Two charged both defendants with possession of a firearm in connection with a drug trafficking offense, in violation of 18 U.S.C. § 924(c). Count Three charged Mr. xxxxxxx alone with possession of a firearm by one previously convicted of a felony, in violation of 18 U.S.C. § 922(g).
3. On February 20, 1990, Mr. xxxxxxx pled guilty to Counts One and Three of the indictment. The codefendant, xxxxx, entered pleas of guilty to two misdemeanors charged by information under the District of Columbia Code, carrying a pistol without a license and possession of cocaine base.(1)
3. On May 23, 1990, at a status hearing,(2) Mr. xxxxxxx's counsel made an oral motion to withdraw the guilty plea entered on February 20, 1990, based upon the erroneous advice he had given Mr. xxxxxxx concerning the sentence he was likely to receive under the United States Sentencing Guidelines (USSG). Counsel related to the court that both he and the prosecutor had believed, prior to the presentence investigation, that Mr. xxxxxxx had one prior felony drug conviction and that a prior conviction in the State of Maryland for distribution of marijuana was a misdemeanor. However, upon receipt of the report, both counsel learned that the marijuana conviction was a felony and that Mr. xxxxxxx was therefore a career offender under § 4B1.1 of the Guidelines.(3)
4. On June 20, 1990, Mr. xxxxxxx's counsel filed a written motion to withdraw the guilty plea, noting that he had advised Mr. xxxxxxx that his sentence under the Guidelines would be slightly in excess of 63-78 months, when in fact the sentencing range was 262 to 327 months, a discrepancy of over 16 years at the lower end and up to 25 years at the higher end of the guideline range. On July 6, 1990, the court held a hearing on the Motion.(4) At the hearing, counsel related that he had informed Mr. xxxxxxx that the guideline range of 63 to 78 months would be increased somewhat, to permit a sentence in the neighborhood of eight or nine years. Counsel also related that he had known Mr. xxxxxxx and his family for years, and that he believed that their long-term relationship caused Mr. xxxxxxx to trust his advice and rely on it to enter the plea.
5. At the hearing, the prosecutor related that he had also been under the mistaken belief that Mr. xxxxxxx's conviction for distribution of marijuana was a misdemeanor rather than a felony, and advised the court that the government would be able to proceed to trial if the motion was granted.
6. Following the hearing, the court denied the motion to withdraw the guilty plea, ruling that it had no duty to advise Mr. xxxxxxx of the applicable guideline range and that the requirements of Fed. R. Crim. P. 11 had been satisfied by advising him of the mandatory minimum sentence which was required on Count One and the statutory maximum sentences on both counts. The court found that the erroneous advice Mr. xxxxxxx had been given by counsel was not sufficient under Fed. R. Crim. P. 32(d) to justify withdrawal of the plea. The court noted that Mr. xxxxxxx had never asserted his innocence or that he had a defense to the charges.
7. On July 18, 1990, Mr. xxxxxxx was sentenced on Count One to a term of imprisonment of 262 months, followed by a term of supervised release of four years. A concurrent sentence of 120 months was imposed on Count Three, to be followed by a three-year term of supervised release. Count Two was dismissed.
8. On September 23, 1991, Mr. xxxxxxx's original counsel moved to withdraw because an issue for appeal was whether he had been ineffective because of the erroneous advice he gave Mr. xxxxxxx as to the length of the sentence he could receive under the guidelines. That motion was granted on October 17, 1991, and the Federal Public Defender was appointed to represent Mr. xxxxxxx on appeal.
9. On appeal, the United States Court of Appeals for the District of Columbia Circuit affirmed the district court's denial of the motion to withdraw the guilty plea. United States v. xxxxxxx, 987 F.2d 833 (D. C. Cir. 1993).
10. A petition for writ of certiorari was denied on October 4, 1993. 114 S.Ct. 153 (1993).
11. There have been no petitions, applications, motions or proceedings filed or maintained by Mr. xxxxxxx in any other federal court with respect to the judgment entered in this case.
12. For the reasons set forth below, Mr. xxxxxxx prays that this Court set aside his convictions and sentence in this case.(5)
MEMORANDUM OF FACTS AND LAW
I. INTRODUCTION
Andre xxxxxxx challenges as illegal the sentence imposed upon him in the instant case, on the grounds that he was denied the effective assistance of counsel at the pretrial stage and in connection with his motion to withdraw guilty plea. Because of his counsel's deficient performance in failing to move to suppress the tangible evidence recovered from Mr. xxxxxxx, and because of erroneous advice to Mr. xxxxxxx about the sentence which could be imposed under the United States Sentencing Guidelines, he was induced to enter a guilty plea. Further, his counsel was ineffective when he filed a motion to withdraw the guilty plea, but failed to assert, either in the motion or at a hearing on the motion, that Mr. xxxxxxx is factually innocent.
But for counsel's failure to investigate and to file a suppression motion, and his erroneous advice as to the applicable guideline range, a reasonable probability exists that Mr. xxxxxxx would not have pled guilty, but would have insisted on a trial. But for counsel's failure to allege a claim of innocence in connection with the motion to withdraw guilty plea, a reasonable probability exists that the motion would have been granted. Counsel's errors rendered his assistance ineffective, in violation of Mr. xxxxxxx's constitutional rights.
II. THE 1996 AMENDMENTS DO NOT BAR THIS MOTION
The recently-enacted Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (Apr. 24, 1996) (the AEDPA) imposes a one-year statute of limitations on § 2255 motions. Section 105 of the Act imposes a limitations period which runs from "the date on which the judgment of conviction becomes final."
The AEDPA does not define when a judgment becomes "final." However, in Teague v. Lane, 109 S.Ct. 1061, 1066-67 (1989), the Supreme Court held that for the purposes of a § 2254 petition claiming the benefit of a new Court decision, the defendant's original conviction became final upon the Supreme Court's denial of certiorari. Likewise, in Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996), the court held that the AEDPA requires petitions under 28 U.S.C. § 2254 to be brought no later than one year after conclusion of state court direct review. See also, Clark v. United States, 1997 WL 74403, *2 (E.D. Va. Feb. 20, 1997) (assuming that the conviction became final for § 2255 on the date after which the defendant could no longer seek direct review by the Supreme Court); Harold v. United States, 932 F. Supp. 705, 706 (D. Md. 1996) (holding that conviction became final for purposes of § 2255 when time for direct appeal expired); United States v. Bazemore, 929 F. Supp. 2567 (S.D. Ga. 1996) (using the "conclusion of direct review" standard of § 101(d)(1)(A) of the AEDPA as reference for time limit under § 2255).
When the Supreme Court denied certiorari on October 4, 1993, well before Congress enacted the AEDPA, which became effective on April 24, 1996, there was no statute of limitations for a § 2255 motion. See, Vasquez v. Hillery, 474 U.S. 254 (1986)("Congress has yet to create a statute of limitations for federal habeas corpus actions.").
The AEDPA does not contain clear language requiring retroactive application of the amendment imposing a one-year statute of limitations in § 2255 motions. See, Pub. L. No. 104-132, § 105. In order to prevent a manifest injustice that would implicate significant constitutional concerns, this court should not apply the limitations period to a defendant in Mr. xxxxxxx's position. It would be "entirely unfair and a severe instance of retroactivity." Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996). Indeed, there is no indication in the new legislation that Congress intended to cut off access to the courts to persons situated like Mr. xxxxxxx, who lacked notice of the new period of limitations. Id.
In Landgraf v. USI Film Prods., 114 S.Ct. 1483, 1499 (1994), the Supreme Court enunciated that the test whether to impose a statute retroactively depends upon whether "the new provision attaches new legal consequences to events completed before its enactment." The act of filing a § 2255 motion more than one year after conviction now has an entirely new legal consequence. As such, the one-year limitation period imposed by the AEDPA should not be applied retroactively in this case.
Due to the ambiguity regarding application of the one-year statute of limitations period, several courts have declined to impose the limitation period retroactively because of the "draconian" results that would necessarily follow. See, United States v. Lopez, 100 F.3d 113 (10th Cir. 1996) (holding that application of one-year limitation period would be inconsistent with Landgraf); Herrera v. United States, 96 F.3d 1010 (7th Cir. 1996) (same); United States v. Rienzi, 1996 WL 605130, No. 96-4829 (E.D. Pa. Oct. 21, 1996) (refusing to impose "unfair" statute of limitations); Nixon v. United States, 1996 WL 539786, Nos. 96-5048, 93-386-4 (E.D. Pa. Sept. 17, 1996) (declining to enforce "draconian" result and questioning its constitutionality); see also, Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996)(refusing to apply one-year limitation period to § 2254 claims).
Based upon the weight of authority from the circuits and the absence of express statutory intent to the contrary in the AEDPA, this Court should accept jurisdiction over this § 2255 motion and decline to impose a draconian bar to proceeding on the merits of petitioner's claims.
III. MR. xxxxxxx'S COUNSEL WAS INEFFECTIVE IN FAILING
TO FILE A MOTION TO SUPPRESS TANGIBLE EVIDENCE
In Kimmelman v. Morrison, 477 U.S. 365 (1985), the Supreme Court decided that failure to file a motion to suppress tangible evidence, when supported by appropriate facts, could constitute ineffective assistance of counsel. In the instant case, Mr. xxxxxxx's former counsel failed to file a motion to suppress the drugs and the gun which police allegedly recovered from the car Mr. xxxxxxx was operating when he was stopped by police. His counsel failed to file a suppression motion, even though Mr. xxxxxxx had told him that the search which led to the recovery of the contraband exceeded the scope of the consent to search which Mr. xxxxxxx gave. See, Exhibit D, Affidavit of Andre xxxxxxx, p. 3.
Kimmelman established a two-prong test to determine whether counsel's failure to file a suppression motion constitutes ineffective assistance of counsel. First, a defendant must show that the Fourth Amendment claim was reasonably likely to succeed on the merits. In addition, the defendant must show that there is a reasonable probability that the court's ruling would have been different had counsel rendered effective assistance. Id. at 375. Both prongs of the test are met in the instant case. When a defendant consents to a search of his person or property, the search may be no broader than that which was contemplated by the consent. United States v. Rackley, 742 F.2d 1266, 1271 (11th Cir. 1984). The standard for measuring the scope of a suspect's consent to search under the Fourth Amendment is one of "objective reasonableness," which focuses on what the typical reasonable person would have understood by the exchange between the police and the suspect. Florida v. Jimeno, 111 S.Ct. 1801, 1803-04 (1991). When a suspect is apprised of the object of a police search, and he places no limitations on his consent to search, the police are constrained only by the reasonableness requirement -- that the search not intrude beyond areas that a reasonable person would have understood as likely to be searched. United States v. Spriggs, 936 F.2d 1330, 1334 (D.C. Cir. 1991).
In the instant case, Mr. xxxxxxx gave the police permission to search his car one time. The police conducted a search of the car, and found nothing. Affidavit of Andre xxxxxxx, p.1. The police, without further consent or authorization, conducted a second search of the car. That search yielded a handgun from underneath the passenger seat of the car. Id.,pp. 1-2. Mr. xxxxxxx was placed under arrest, after which his car was searched a third time. Id., p. 2. He was then transported to the police station. Subsequently, at the police station, Mr. xxxxxxx was advised that he was being charged with drugs found in the car during a fourth search of the car. Id., p. 2.
None of the subsequent searches of Mr. xxxxxxx's car were conducted with his express consent. Moreover, these searches were not reasonably contemplated by Mr. xxxxxxx when he gave his initial consent to search. When the police conducted the first search, and found no contraband, Mr. xxxxxxx was advised that he was free to leave. It was as he was leaving the scene that the police decided to conduct a further search.
In light of the absence of consent for the subsequent searches of Mr. xxxxxxx's car, there is a reasonable probability that the Court would have granted a suppression motion on the basis of the prosecution's failure to carry its burden to justify the warrantless searches in this case. Therefore, the Kimmelman tests are met, and Mr. xxxxxxx's convictions and sentence should be set aside because of counsel's ineffectiveness in failing to file a suppression motion.
IV. NEWLY-DISCOVERED EXTRINSIC EVIDENCE
ESTABLISHES THAT MR. xxxxxxx'S COUNSEL
WAS INEFFECTIVE IN ADVISING HIM TO
ENTER A PLEA OF GUILTY AND THAT THE
PLEA WAS NOT KNOWING AND VOLUNTARY.
Newly-discovered evidence, outside the record, has been uncovered indicating that Mr. xxxxxxx's counsel was the attorney of record for the Maryland felony conviction for distribution of marijuana which caused Mr. xxxxxxx to be classed as a career offender under the sentencing guidelines.(6) Despite having been counsel of record, Mr. xxxx still maintained the erroneous belief that defendant's prior conviction was a misdemeanor, and thereby misled Mr. xxxxxxx about his prior record.
Prior to advising Mr. xxxxxxx of the potential consequences of a plea of guilty, counsel neglected to even check his own office files in order to determine whether the prior conviction was a felony or a misdemeanor. As a direct and proximate result of counsel's failure to perform diligently, Mr. xxxxxxx pled guilty, and was sentenced as a career offender.
Resolution of ineffective assistance claims often requires consideration of matters outside the record on direct appeal. See, United States v. Matos, 905 F.2d 30, 32 (2d Cir. 1990) (stating that a claim for ineffective assistance must usually be made to the district court for factual findings, in order to develop a "full factual record"). In fact, the Seventh Circuit has made the following observation regarding newly-discovered evidence in the context of ineffective assistance claims:
In the usual case extrinsic evidence is necessary to prove that counsel's assistance was ineffective, because without such evidence counsel's apparent pratfalls will be presumed to be failed stratagems rather than professional malpractice.
United States v. Taglia, 922 F.2d 413, 418 (7th Cir.), cert. denied, 111 S. Ct. 2040 (1991).
The ineffective assistance claim in the instant case is soundly based upon assertions that Mr. Mance made errors of omission, errors that were not obvious from the record and that were not discovered until after the direct appeal (see Affidavit of Undersigned Counsel, attached as Exhibit E). This type of newly-discovered extrinsic evidence significantly changes the nature of the appeal and therefore justifies relitigating the ineffective assistance issue in a § 2255 motion.
In assessing an ineffective assistance of counsel claim, this Court must begin with the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668 (1984): (1) whether the attorney's performance fell below an objective standard of reasonableness, thereby rendering the representation so deficient that the attorney did not function as counsel guaranteed by the Sixth Amendment, and (2) whether the attorney's ineffectiveness prejudiced the defendant such that, but for the unprofessional errors, the result would have been different. Id. at 694. In Hill v. Lockhart, the Supreme Court held that the Strickland two-prong test applies to guilty pleas, and that in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pled guilty, but rather would have gone to trial. 474 U.S. 52, 58-59 (1985). In the following analysis, under the tests articulated above, Mr. xxxxxxx clearly establishes through newly-discovered extrinsic evidence that he received glaringly ineffective assistance of counsel.
The failure of counsel to inform defendant prior to the entry of his plea that he would be classified as a career offender under the Sentencing Guidelines, standing alone, may not show that his representation fell below an objective standard of reasonableness. See, Thomas v. United States, 27 F.3d 321, 325 (8th Cir. 1994); United States v. xxxxxxx, 987 F.2d 833 (D.C. Cir. 1993); Nwachia v. United States, 891 F. Supp. 189, 196 (D. N.J. 1995).However, when counsel's flagrant oversight and subsequent sentencing miscalculation are combined with the fact that he was the attorney of record for the defendant's prior felony conviction, it becomes clear that counsel's representation of Mr. xxxxxxx leading up to the entry of his plea dropped far below an objective standard of reasonableness.
Counsel's failure to learn of the prior felony conviction was inexcusable in light of the fact that he had access to such information at his fingertips: in his own law office. He could not have been reasonably misled into believing defendant had only one prior felony conviction because he represented Mr. xxxxxxx in the marijuana case. Therefore, given counsel's unique position as the attorney of record in the Maryland marijuana case, and his grossly negligent estimate of defendant's exposure if he pled guilty, his conduct cannot be characterized as a mere "inaccurate prediction." Cf. McMann v. Richardson, 397 U.S. at 770; Hill v. Lockhart, 894 F.2d at 1010-11 (8th Cir. 1990) (Bowman, J., dissenting), cert. denied, 110 S. Ct. 3258 (1990).
Several circuits have held that misleading advice about the consequences of a guilty plea constitutes ineffective assistance of counsel. See, Iaea v. Sunn, 800 F.2d 861, 864-65 (9th Cir. 1986);
Esslsinger v. Davis, 29 F.3d 594 (11th Cir. 1994) (counsel's failure to learn of two prior felony convictions constituted ineffective assistance); Thomas v. United States, 27 F.3d 321 (8th Cir. 1994) (where it is possible to predict that defendant is a career offender, failure to advise defendant of plea consequences is ineffective assistance). In the present case, the fact that counsel was capable of knowing the probable classification of his client as a career offender by simply looking in the files of his own law offices sharply distinguishes this case from other cases where such information was either unavailable or not readily accessible to counsel.
But for counsel's erroneous advice, Mr. xxxxxxx would have proceeded to trial. See Exhibit D, p. 3. He was induced to abandon his plea of not guilty, and his right to trial, by his counsel's ineffective representation. Therefore, the newly-discovered extrinsic evidence of counsel's gross negligence provides a compelling basis to find prejudice and reverse Mr. xxxxxxx's convictions.
V. COUNSEL FOR MR. xxxxxxx WAS INEFFECTIVE
IN HIS HANDLING OF THE MOTION TO WITHDRAW
GUILTY PLEA IN THAT HE FAILED TO ASSERT
MR. xxxxxxx'S INNOCENCE.
The court in United States v. xxxxxxx, 987 F.2d 833, 837 (D. C. Cir. 1993), placed a premium on Mr. xxxxxxx's failure, in moving to withdraw his guilty pleas, to assert factual innocence. It has long been the law in this circuit that a claim of innocence is one factor upon which a court can rely in granting a motion to withdraw a guilty plea. See, United States v. Mathis, 963 F.2d 399, 410 (D. C. Cir. 1992); United States v. Roberts, 570 F.2d 999, 1009, n.39 (D.C. Cir. 1977); United States v. Barker, 514 F.2d 208, 220 (D.C. Cir. 1975).
Mr. xxxxxxx's counsel was given an opportunity, both in the written motion to withdraw the plea, and at the hearing on the motion, to assert his client's innocence. Counsel knew, from Mr. xxxxxxx, that in spite of his willingness to enter a guilty plea in return for a sentence in the range of 68 months, he had previously denied that he possessed the contraband found allegedly found in the car he was driving at arrest. See, Exhibit D, p. 3. Counsel should have known that a claim of innocence was essential to prevailing on the motion to withdraw guilty plea. Nonetheless, counsel failed to make that essential assertion. It should have been clear to counsel that absent such an assertion, the motion to withdraw the plea was doomed to failure.
Therefore, counsel's failure to assert a claim of innocence to support the motion to withdraw the guilty plea equaled deficient representation. Mr. xxxxxxx was prejudiced by counsel's failure to allege his innocence, because both the district court and the appellate court relied heavily upon that factor to deny relief. United States v. xxxxxxx, 987 F.2d at 837. Recently, the Fifth Circuit addressed whether the deprivation of an opportunity to have a court exercise its discretion in a defendant's favor can constitute ineffective assistance. In United States v. Castro, 26 F.3d 557, 560 (5th Cir. 1994), the court remanded for a determination whether when defense counsel failed to advise the defendant of the possibility of a judicial recommendation against deportation, he provided inadequate representation. As in Castro, Mr. xxxxxxx's prior counsel effectively precluded the district court from exercising its discretion to allow withdrawal of the guilty plea in Mr. xxxxxxx's favor by the failure to assert his innocence. In the instant case, had counsel advanced a claim of innocence, it is reasonably probable that Mr. xxxxxxx's motion to withdraw guilty plea would have been granted. The district court expressed its concern about the substantial disparity between the sentence Mr. xxxxxxx's counsel advised him he could receive, and the sentence he was actually facing by virtue of being a career offender under the sentencing guidelines. The court was clearly influenced by the absence of such a claim. Exhibit C, pp. 12-13. Therefore, Mr. xxxxxxx has demonstrated, as required by Strickland, that his counsel's inadequate performance prejudiced him. The motion to vacate sentence should be granted.
VI. THE TOTALITY OF COUNSEL'S PERFORMANCE
CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL
In determining Mr. xxxxxxx's ineffectiveness claim, the Court must consider the totality of the circumstances surrounding counsel's performance. Strickland, 466 U.S. at 690. In this case, either of the two major errors committed by counsel -- failure to file a suppression motion and giving erroneous advice as to the consequences of his guilty plea -- is sufficient, standing alone, to constitute ineffective assistance, because each error prevented Mr. xxxxxxx from entering a knowing and voluntary guilty plea. Certainly, the combination of counsel's errors and omissions fell below the minimum reasonable standard of competence required of criminal defense attorneys and prejudiced Mr. xxxxxxx in this case, because absent the errors, he would not have pleaded guilty. Further, when his counsel failed to assert a claim of innocence in connection with the filing of a motion to withdraw guilty plea, Mr. xxxxxxx's chances of reversing the damage from counsel's earlier incompetence and proceeding to trial were seriously damaged. Under these circumstances, the Court is obliged to overturn Mr. xxxxxxx's convictions to reverse a "manifest injustice." Cf. United States v. Russell, 686 F.2d 35, 38-39 (D. C. Cir. 1982) (post-sentence withdrawal of guilty plea depends on showing of manifest injustice).
CONCLUSION
Pursuant to Rule 8 of the Rules Governing Section 2255 Proceedings, Mr. xxxxxxx requests that an evidentiary hearing be conducted at which proof may be offered concerning the issues raised in his motion and memorandum. After an evidentiary hearing is held, the Court should vacate Mr. xxxxxxx's convictions and sentence, and permit him to withdraw his guilty plea, and to file a motion to suppress tangible evidence, or grant such other and further relief as it deems appropriate.
Respectfully submitted,
A.J. KRAMER
FEDERAL PUBLIC DEFENDER
_________________________
Reita Pendry
Assistant Federal Public Defender
625 Indiana Avenue, N.W. #550
Washington, D. C. 20004
(202)208-7500
1. Ms. Barnes was subsequently allowed to withdraw her pleas to these offenses, and all charges were dismissed against her.
2. A transcript of the May 23, 1990 status hearing is attached as Exhibit A.
3. In fact, petitioner's counsel knew or should have known that the marijuana conviction was a felony, since he was counsel of record in that case. See, Exhibit B attached.
4. A transcript of the July 6, 1990 hearing is attached as Exhibit C.
5. Pursuant to the pertinent instructions accompanying the Model Form for Motions Under 28 U.S.C. § 2255, prescribed by the Rules Governing Section 2255 Cases in the United States District Courts, we have set forth in our memorandum the pertinent facts and applicable law in support of our motion. However, in discussing the facts relating to our legal claims, we do not mean to suggest that an evidentiary hearing on these claims is unnecessary. To the contrary, because our allegations involve factual, as well as legal issues, a full hearing on this motion is required.
6. See Exhibit B attached to this Motion showing that xxxxxxxx was counsel in Case Nol 81-1107-B, the conviction reported at page 4, paragraph 21, of the presentence report in this case.