Dixon v. United States

151 F.Supp.3d 582

Shayne Dixon, Petitioner,

v.United States of America, Respondent.

CRIMINAL ACTION No. 12–620

CIVIL ACTION No. 14–5647

United States District Court, E.D. Pennsylvania.

Signed December 30, 2015

J. Alvin Stout, III, Maria M. Carrillo, U.S. Attorney's Office, Philadelphia, PA, for Petitioner.

Shayne Dixon, Minersville, PA, Angelo Charles Peruto, Jr., Mark Heinricks, Philadelphia, PA, for Respondent.

MEMORANDUM

EDUARDO C. ROBRENO, DISTRICT JUDGE.

Table of Contents

I. INTRODUCTION ...586

II. BACKGROUND ...586

III. LEGAL STANDARD ...588

IV. DISCUSSION ...589

A. Counsel's Personal Issues ...590

B. Presentence Report Meeting ...591

C. Review of Presentence Report ...592

D. Safety Valve Reduction ...593

E. Revised Plea Agreement ...597

F. Relevant Conduct Issues ...598

G. Advice Not to File Direct Appeal ...599

V. CERTIFICATE OF APPEALABILITY ...599

VI. CONCLUSION ...599

I. INTRODUCTION

Petitioner Shayne Dixon is a federal prisoner incarcerated at Federal Correctional Institution Schuylkill in Minersville, Pennsylvania. Dixon filed a pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence, claiming that he received ineffective assistance of counsel, thereby rendering his plea agreement involuntary and unknowing. For the reasons that follow, the Court will deny the § 2255 motion without an evidentiary hearing.

II. BACKGROUND

On November 8, 2012, Shayne Dixon (“Dixon”) was charged by indictment with five counts of distribution of marijuana, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(D), and one count of possession of 100 kilograms or more of marijuana with the intent to distribute, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B). The facts of the case against Dixon were recited by the Government during the change of plea hearing on March 27, 2013. Change of Plea Hr'g Tr., Mar. 27, 2013, ECF No. 36 (filed under seal).¹ They are as follows:

After receiving information from a confidential source, special agents and task force officers of the Drug Enforcement Administration (“DEA”) conducted surveillance of 4416 Hurley Street, Philadelphia, Pennsylvania (“the Hurley Street location”) from February 14, 2012, to April 30, 2012. Id. at 18:22–19:1. At one point during the surveillance, DEA agents observed Dixon unloading boxes at the Hurley Street location, and just a few hours later, the agents observed a man taking six boxes out of the house. Id. at 22:7–11.

At approximately 5:40 PM on April 30, 2012, the agents saw Dixon leave the Hurley Street location and enter a Mercedes–Benz, which subsequently drove away. Id. at 19:7–11. When the agents stopped the car, Agent Neamiah Hagler approached the car and smelled an emanating odor. Id. at 19:12–14. Agent Hagler then searched the driver and recovered a small bag of marijuana. Id. at 19:15–16. Dixon was removed from the vehicle, detained, and read his Miranda rights. Id. at 19:17–18. Dixon waived his Miranda rights, told the agents that he sold marijuana, and stated that he had marijuana at the Hurley Street location. Id. at 19:19–21.

Dixon then consented to a search of the Hurley Street location. Id. at 19:22–25. During the search, the agents found over 800 pounds of marijuana, over $14,000 in cash, a loaded gun, ammunition, two digital scales, a bag sealer used for sealing marijuana packages or currency, and other paraphernalia used in drug trafficking operations. Id. at 20:1–6. Most of the marijuana was found in nineteen large, brown boxes, with each box containing approximately forty pounds of marijuana in a cellophane-sealed bag or bale. Id. at 20:7–12. Either the letter “A” or “B” was written on each box. Id. at 20:14–15. Dixon told the agents that the letter indicated the marijuana's quality, with “A” indicating a higher grade than “B.” Id. at 20:16–18. The agents also determined that writing on the cellophane packaging indicated the weight of each package. Id. at 20:19–23.

During the search, the agents also found marijuana that was not boxed. Id. at 20:24–25. Dixon told the agents that the unboxed marijuana was “bad.” Id. at 21:3–5. In total, 374 kilograms of marijuana were recovered. Id. at 21:6–9.

Dixon was not taken into custody on the day of the search. Id. at 21:15–16. He agreed to cooperate and returned the next day for a full interview by the agents. Id. at 21:16–19. During the interview, he told the agents that he had been selling 200 to 300 pounds of marijuana per month for the past three to four years. Id. at 21:19–21. He also stated that the day before the agents' search, he had left the Hurley Street location with $640,000 in bags that he carried to meet his source for the marijuana. Id. at 21:22–25. Dixon identified his source as two Mexican men who, in exchange for the $640,000, gave him twenty-five large boxes of marijuana in a white van. Id. at 22:1–5. These twenty-five boxes were the boxes that the DEA agents had previously seen Dixon unloading at the Hurley Street location. Id. at 22:6–11.

Dixon also admitted that his sources had provided marijuana to him on other occasions. Id. at 22:12–14. He explained that his sources had previously provided him with cellular phones for communication, but communication was initiated only one way: they would contact him. Id. at 22:14–17. Dixon stated he always had to wait for them to arrive. Id. at 22:17–19.

In describing his own sales, Dixon stated that his customers would go to the Hurley Street location, where he would distribute marijuana to them. Id. at 22:24–23:1. After reviewing the agents' surveillance footage, Dixon confirmed that five distributions had occurred during their watch—distributions for which he was charged in Counts 1 through 5. Id. at 23:1–6; see also id. at 23:7–25:17 (explaining the five distributions in detail).

Following the Government's initial recitation of this factual summary, defense counsel, Mr. A. Charles Peruto, Jr., objected to the reference to Dixon's admissions about his prior drug dealings. Id. at 26:14–38:9. The Government thereafter agreed to eliminate the reference to Dixon's admissions from the factual summary. Id. at 38:13–21. The Government also agreed to revise the fact section in the change of plea memorandum accordingly, id. and filed a revised version with the Court after the hearing, ECF No. 28.

Dixon pled guilty to Counts 1 through 6 pursuant to the non-cooperation plea agreement. Id. at 44:12–16. The Court sentenced Dixon on September 12, 2013, to 120 months in custody, followed by five years' supervised release. Sentencing Hr'g Tr. 85:1–8, Sept. 12, 2013, ECF No. 46. On September 12, 2013, the Court issued a judgment and preliminary order of forfeiture of the property at 2342–52 North 15th Street, Philadelphia, Pennsylvania, see J. & Prelim. Order of Forfeiture, ECF No. 45, pursuant to the consent motion filed by the Government, see Consent Mot. J. & Prel. Order of Forfeiture, ECF No. 44.²

On October 2, 2014, Dixon filed a timely³ pro se motion under 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence. Mot. 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence, ECF No. 60 [hereinafter “Def.'s Mot.”]. Dixon then filed a memorandum of law in support of his motion on January 2, 2015. ECF No. 65. On January 30, 2015, the government filed a sealed response. ECF No. 66. The motion is now ripe for disposition.

III. LEGAL STANDARD

A federal prisoner “claiming the right to be release ... may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255. Such a prisoner may attack his sentence on any of the following grounds: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; or (3) the sentence was in excess of the maximum authorized by law. Id. An evidentiary hearing on the merits of a prisoner's claims is necessary unless the motion, files, and records of the case conclusively show that he is not entitled to relief. Id. § 2255(b). The court is to construe a prisoner's pro se pleading liberally, Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (per curiam), but “vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation,” United States v. Thomas, 221 F.3d 430, 437 (3d Cir.2000).

A § 2255 motion can be based upon a violation of the Sixth Amendment right to effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 686, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). By claiming ineffective assistance, a defendant attacks “the fundamental fairness of the proceeding.” Id. at 697, 104 S.Ct. 2052. Therefore, as “fundamental fairness is the central concern of the writ of habeas corpus,” “[t]he principles governing ineffectiveness should apply in federal collateral proceedings as they do on direct appeal or in motions for a new trial.” Id. Those principles require a convicted defendant to establish both that (1) his counsel's performance was deficient, and (2) the deficient performance prejudiced his defense. Id. at 687, 104 S.Ct. 2052 ; Holland v. Horn, 519 F.3d 107, 120 (3d Cir.2008).

To prove deficient performance, a defendant must show that his “counsel's representation fell below an objective standard of reasonableness.” Holland, 519 F.3d at 120 (citing Strickland, 466 U.S. at 688, 693, 104 S.Ct. 2052 ). The court's “scrutiny of counsel's performance must be highly deferential.” Douglas v. Cathel, 456 F.3d 403, 420 (3d Cir.2006) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ). Accordingly, there is a “strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Grant v. Lockett, 709 F.3d 224, 234 (3d Cir.2013) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052 ). In raising an ineffective assistance claim, the defendant must first identify the acts or omissions alleged not to be the result of “reasonable professional judgment.” Strickland, 466...