United States District Court, D. Maine
For USA, Plaintiff: MARGARET D. MCGAUGHEY, MICHAEL J. CONLEY, LEAD ATTORNEYS, DAVID B. JOYCE, U.S. ATTORNEY'S OFFICE, DISTRICT OF MAINE, PORTLAND, ME.
RECOMMENDED DECISION ON 28 U.S.C. § 2255 MOTION AND MOTION FOR DISCOVERY
John C. Nivison, United States Magistrate Judge.
In this action, Petitioner Leonard Jones moves to vacate, set aside or correct his sentence, pursuant to 28 U.S.C. § 2255. (ECF No. 136.) In addition, his latest discovery motion is pending. (ECF No. 163.)
Following a three-day jury trial, Petitioner was convicted of conspiring to possess with intent to distribute 50 grams or more of cocaine base, and an unstated amount of cocaine and ecstasy (21 U.S.C. § § 841(a), 846). The Court sentenced Petitioner to life in prison under statutorily enhanced penalty provisions (21 U.S.C. § 841(b)(1)(A)) based on his prior state drug possession convictions. United States v. Jones, 674 F.3d 88, 90 (1st Cir. 2012). The First Circuit Court of Appeals upheld the conviction and the sentence. Id. at 90, 97.
In his section 2255 motion, Petitioner raises at least 19 separate grounds for relief, including his contention that the conviction violates Alleyne v. United States, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013); that the indictment and verdict were obtained with perjured testimony; that Petitioner received ineffective assistance of counsel from both trial counsel and appellate counsel; and that the trial court abused its discretion. The Government requests summary dismissal. (Response, ECF No. 151.) The recommendation is that the Court deny Petitioner the relief that he seeks, dismiss Petitioner's section 2255 motion, and dismiss Petitioner's pending motion for discovery as moot.
I. Facts and Procedural History
Petitioner was indicted in May 2009 on one count for conspiring to distribute and to possess with intent to distribute (1) fifty grams or more of a mixture or substance containing cocaine base, which is also known as crack cocaine; (2) an unstated quantity of a mixture or substance containing cocaine, which is also known as powder cocaine; and (3) an unstated quantity of a mixture or substance containing 3, 4 methylenedioxymethamphetamine (MDMA), which is also known as ecstasy. (Indictment, ECF No. 3.) The indictment alleged that the penalty provisions of 21 U.S.C. § 841(b)(1)(A) applied.
The trial was held in April 2010. (Trial Tr., ECF Nos. 115, 116, 117.) On the first day of the trial, the Government filed an information to establish the prior convictions on which the Government relied in seeking the imposition of enhanced penalties, pursuant to 21 U.S.C. § 851. Jones, 674 F.3d at 90. (Information, ECF No. 82.)
The trial evidence included the testimony of five co-conspirators, all of whom had entered into agreements for reduced sentences in exchange for their testimony against Petitioner. Jones, 674 F.3d at 90. The co-conspirators testified that Petitioner traveled between Georgia and Maine approximately ten times between 2005 and 2008 to sell drugs. Id. According to the witnesses, Petitioner usually stayed in Maine for several days at a time when he made the trips. On one occasion when he was in Maine in 2006, Petitioner was arrested after a routine traffic stop revealed that he had several cell phones in his car, $100 in his hat, $1, 000 in one pocket, $535 in another pocket, and $750 in a sock. Id.
In 2008, " when federal agents began speaking with several of Jones' contacts, Jones directed one of his co-conspirators--a recording of the call was offered at trial--to find out who was cooperating and to 'go guns their ass out.'" Id. at 90-91. Petitioner testified at trial " that his visits to Maine were prompted by social relationships; that his income was derived from a car wash business and dog breeding in Georgia; and that his rental in late 2007 of an apartment in Maine was aimed at bringing a lady friend to live in Maine." Id. at 91. Petitioner's counsel attempted to impeach the testimony of the co-conspirators by calling two federal agents to explore their involvement with the co-conspirators. Id.
After deliberating for approximately five hours, the jury returned a guilty verdict. Id. At sentencing, Petitioner admitted the predicate convictions as alleged in the information filed by the Government. (Sentencing Tr., ECF No. 118 at 5.) Petitioner's prior drug felony record consisted of three state court convictions in Georgia, in 1999 and 2001, for possession of cocaine and more than one ounce of marijuana. In July 2010, Petitioner was sentenced to life imprisonment, which " the judge found to be required in light of the prior drug felonies established at sentencing and the enhanced penalty provision invoked by the government." Jones, 674 F.3d at 91. (Sentencing Tr. at 13.)
On appeal, the First Circuit rejected each of Petitioner's five challenges to the conviction. The Court rejected Petitioner's challenge to the sufficiency of the evidence, noting that the record revealed " the classic model of the hub-and-spoke conspiracy, and, although the present facts are not the most powerful example one can imagine for the single conspiracy finding, this is a factual issue left to the jury in close cases." Id. at 92 (citing United States v. Niemi, 579 F.3d 123, 127 (1st Cir. 2009)). As to Petitioner's four other arguments regarding the conviction, the Court concluded that (1) none of the prosecutor's statements in closing argument constituted error; (2) the judge did not err in instructing the jury on the meaning of reasonable doubt; (3) Petitioner's absence from a conference between counsel and the judge regarding a jury re-instruction and the materials that the jury may consult was not error; and (4) the trial court did not abuse its discretion when it declined to order a post-trial hearing regarding possible juror bias after the prosecution informed the Court that a juror had made a post-verdict phone call to a police officer and communicated about the witnesses in the case. Id. at 92-95.
Petitioner also appealed the sentence. In response to Petitioner's arguments, the First Circuit held that (1) Petitioner explicitly waived any objection to the time of the filing of the information containing the prior drug convictions; and (2) the sentence of life imprisonment did not violate the Eighth Amendment. The Court observed:
Taken by itself, a life sentence for a 30 year old defendant, based on a first time drug distribution conviction, looks on its face like a very severe sentence. We are prepared to assume that--despite the criminal history including possession offenses--the district judge might have given a lesser sentence absent the mandatory minimum even though the guideline range as computed was 30 years to life.
Id. at 95-96. The Court held that the life sentence did not violate the Eighth Amendment for two reasons. First, the Supreme Court has upheld life sentences " that look equivalently severe." Id. at 96 (citing, inter alia, Harmelin v. Michigan, 501 U.S. 957, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991)). Although the Supreme Court has held that a life sentence without parole for non-homicide offenses, if imposed upon a juvenile, violates the Eighth Amendment, in this case, Petitioner was " not close to being a juvenile" at the time of the offense for which he was being sentenced. Id. Second, the facts of the case reflected that Petitioner's crime was serious. That is, Petitioner ran " a significant distribution network involving a number of people over several years, possessed guns in connection with this continuing crime, seemingly was prepared to murder informants, and had enough prior convictions to place him in the top criminal history bracket." Id. at 96. The crime also involved a large quantity of drugs. Id. The Supreme Court denied Petitioner's petition for a writ of certiorari. Jones v. United States, 133 S.Ct. 363, 184 L.Ed.2d 215 (Oct. 1, 2012).
Petitioner signed his section 2255 motion and placed it in the prison mailing system on September 25, 2013, and it was filed on October 1, 2013. (Petition at 28.) Petitioner filed a motion to hold his section 2255 motion in abeyance pending certain federal sentencing legislation; the Court denied that motion. (Motion, ECF No. 153; Order, ECF No. 155.)
Petitioner has filed several discovery requests. (Motions, ECF Nos. 132, 149, 152, 160, 163.) The first motion was denied because no section 2255 motion had been filed. (Order, ECF No. 133.) The next two were denied without prejudice. (Orders, ECF Nos. 150, 154.) This Court granted the third motion in part, giving Petitioner access to the grand jury transcript. (Order, ECF No. 161.) In addition, the Court allowed Petitioner to supplement his opposition to the Government's motion to dismiss the petition, after he reviewed the grand jury transcript. (Id. at 2.)
Petitioner subsequently filed his latest discovery motion, through which Petitioner requests the exhibits to the grand jury proceedings or, at a minimum, an inventory describing the contents of the grand jury exhibits. (Discovery Motion, ECF No. 163.) The Government opposes the motion because Petitioner seeks discovery that is not required under the Jencks Act, 18 U.S.C. § 3500(b), Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), or Fed. R. Crim. Proc. 16. (Response, ECF No. 169.)
Petitioner requested and received an extension to file his supplemental memorandum. He filed the memorandum in July 2014. (Order, ECF No. 167; Supplemental Memorandum, ECF No. 170.) Petitioner argues that either the conviction must be vacated or he must be resentenced because the jury did not find the drug weight of the cocaine or ecstasy alleged in the indictment, and its finding of " 50 grams or more" of crack cocaine, as alleged in the indictment, was inexact and, therefore, insufficient under Alleyne . (Supplemental Memorandum at 2.) Petitioner also argues that because his appeal was pending on the effective date of the Fair Sentencing Act of 2010, the Act applies to his case, and he must be retried or at least resentenced. (Id. at 5.)
On November 6, 2014, Petitioner filed an additional " supplemental brief" without leave of the Court. (ECF No. 171.) That filing does not contain any new claims.
A. Standard of Review
A person may move to vacate his or her sentence on one of four different grounds: (1) " that the sentence was imposed in violation of the Constitution or laws of the United States"; (2) " that the court was without jurisdiction" to impose its sentence; (3) " that the sentence was in excess of the maximum authorized by law"; and (4) that the sentence " is otherwise subject to collateral attack." 28 U.S.C. § 2255(a); see Knight v. United States, 37 F.3d 769, 772 (1st Cir. 1994). A section 2255 petitioner has the burden to establish by a preponderance of the evidence that he or she is entitled to section 2255 relief. David v. United States, 134 F.3d 470, 474 (1st Cir. 1998); United States v. DiCarlo, 575 F.2d 952, 954 (1st Cir. 1978). When " a petition for federal habeas relief is presented to the judge who presided at the petitioner's trial, the judge is at liberty to employ the knowledge gleaned during previous proceedings and make findings based thereon without convening an additional hearing." United States v. McGill, 11 F.3d 223, 225 (1st Cir. 1993).
A habeas petition is not a substitute for an appeal. Berthoff v. United States, 308 F.3d 124, 127 (1st Cir. 2002). " Accordingly, a defendant's failure to raise a claim in a timely manner at trial or on appeal constitutes a procedural default that bars collateral review, unless the defendant can demonstrate cause for the failure and prejudice or actual innocence." Id. at 127-28. Procedural default is an affirmative defense. Sotirion v. United States, 617 F.3d 27, 32 (1st Cir. 2010). A nonconstitutional issue that is procedurally defaulted because it was not raised on appeal " 'may not be asserted by collateral attack under § 2255 absent exceptional circumstances.'" Damon v. United States, 732 F.3d 1, 4 (1st Cir. 2013) (quoting Knight, 37 F.3d at 772).
To succeed on an ineffective assistance of counsel claim, a petitioner " must establish both that counsel's representation fell below an objective standard of reasonableness and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Turner v. United States, 699 F.3d 578, 584 (1st Cir. 2012) (citing Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The two prongs of the ineffective assistance test are commonly referred to as the " cause" and " actual prejudice" tests. Bucci v. United States, 662 F.3d 18, 29 (1st Cir. 2011). A district court reviewing such claims need not address both prongs of the test because a failure to meet either prong will undermine the claim. Strickland, 466 U.S. at 697.
As for the " cause" test, the court must be " 'fairly tolerant'" of counsel's performance because the Constitution does not guarantee a perfect defense. Moreno-Espada v. United States, 666 F.3d 60, 65 (1st Cir. 2012) (quoting Scarpa v. Dubois, 38 F.3d 1, 8 (1st Cir. 1994)). The issue is whether counsel's performance was " 'within the wide range of reasonable professional assistance' that a competent criminal defense counsel could provide under 'prevailing professional norms.'" Bucci, 662 F.3d at 30 (quoting Strickland, 466 U.S. at 688-89). " Judicial scrutiny of the defense counsel's performance is 'highly deferential, ' and the defendant must overcome a 'strong presumption . . . that, under the circumstances, the challenged action " might be considered sound trial strategy." '" Id. (quoting Strickland, 466 U.S. at 689).
The " actual prejudice" test requires a showing " sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. The court must consider " the totality of the evidence before the judge or jury" when measuring the prejudicial effect. Stephens v. Hall, 294 F.3d 210, 218 (1st Cir. 2002). Factors that are commonly considered include the strength of the prosecution's case, the effectiveness of the defense presented at trial, and the potential for new evidence and new avenues for cross-examination to undermine the credibility of Government witnesses. Turner, 699 F.3d at 584.
" Evidentiary hearings on § 2255 petitions are the exception, not the norm, and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is warranted. An evidentiary hearing 'is not necessary when a [§ ] 2255 petition (1) is inadequate on its face, or (2) although facially adequate, is conclusively refuted as to the alleged facts by the files and records of the case.'" Moreno-Morales v. United States, 334 F.3d 140, 145 (1st Cir. 2003) (citation omitted) (quoting DiCarl o, 575 F.2d at 954 (quotation marks omitted)). In determining whether an evidentiary hearing is required, the court must " take as true the sworn allegations of fact set forth in the petition 'unless those allegations are merely conclusory, contradicted by the record, or inherently incredible.'" Owens v. United States, 483 F.3d 48, 56 (1st Cir. 2007) (quoting Ellis v. United States, 313 F.3d 636, 641 (1st Cir. 2002)). Summary dismissal of a motion is permitted when the allegations are " 'vague, conclusory, or palpably incredible, '" even " 'if the record does not conclusively and expressly belie [the] claim.'" David, 134 F.3d at 478 (quoting Machibroda v. United States, 368 U.S. 487, 495, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962)).
B. Grounds Asserted and Analysis
1. Claim of Jury Trial Right Under Alleyne (Ground One)
Petitioner argues that based on the Supreme Court case of Alleyne, the Court should vacate his sentence and resentence him under a Fair Sentencing Act of 2010 amendment that was effective just after he was sentenced. (Motion at 7; Attachment, ECF No. 136-1; Reply, ECF No. 157 at 2, 4-5.) In Alleyne, the Supreme Court held that " any fact that increases the mandatory minimum [sentence] is an 'element' that must be submitted to the jury." 133 S.Ct. at 2155 (emphasis added). The holding in Alleyne is recognized as an extension of the Court's holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As the plurality explained in Alleyne, the Supreme Court held in Apprendi that " any fact that increased the prescribed statutory maximum sentence must be an 'element' of the offense to be found by the jury." Alleyne, 133 S.Ct. at 2157 (emphasis added) (citing Apprendi, 530 U.S. at 483, n. 10, 490).
Petitioner's argument does not present an Alleyne issue as to either the drug quantity or the prior convictions. The jury, not the sentencing court, found the drug quantity on which the sentence was based. In addition, Petitioner admitted to the predicate convictions. Even if he had not admitted the convictions, the Court was not required to submit the prior convictions to the jury. See United States v. Paladin, 748 F.3d 438, 451-52 (1st Cir. 2014) (citing Alleyne, 133 S.Ct. at 2160 n.1) (holding that " a defendant's prior convictions need not be submitted to the jury even where those convictions form the basis for an increased sentence").
2. Claim That the Verdict Was Based on Perjured Testimony (Ground Two)
In his motion, Petitioner argued that both the indictment and the jury verdict were obtained through perjured testimony, and that he needed access to the grand jury transcript to support the claim. (Motion at 8-9; Motion for Discovery, ECF No. 152 at 2.) In accordance with this Court's order, Petitioner has had access to the grand jury transcript. In fact, he references the grand jury testimony in the pending motion for discovery. Petitioner, however, has not provided facts to substantiate the claim of perjured testimony, despite the fact that he had access to the grand jury testimony and the opportunity to supplement his argument. Petitioner's claim, therefore, fails. See David, 134 F.3d at 478 (" To ...