United States v. Ayers

938 F.Supp.2d 108

UNITED STATES of America

v.Kevin D. AYERS, Defendant.

Criminal No. 07–307.

United States District Court, District of Columbia.

April 11, 2013.

Angela S. George, Jeffrey Pearlman, U.S. Attorney's Office, Washington, DC, for Plaintiff.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

Before the Court is defendant Kevin D. Ayers's pro se Motion [44] to Vacate, Set Aside, or Correct Sentence pursuant to 28 U.S.C. § 2255. Defendant's Motion rests on two grounds: ineffective assistance of counsel regarding his decision to plead guilty and an unreasonable sentence in violation of his due process rights. Defendant asks the Court to vacate his plea, or in the alternative, to vacate his sentence. Upon consideration of the Motion [44], the entire record herein, and the applicable law, defendant's Motion will be DENIED.

I. BACKGROUNDA. Defendant's Underlying Offenses

In 2006, police officers arrested defendant after recognizing him as a suspect with an outstanding warrant. Presentence Investigation Report (“PSR”) ¶ 11. ECF No. 36, rev. June 26, 2009. Apparently there was a “brief struggle” between defendant and the officers before the arrest. Id. During processing at the police station, an inventory of defendant's possessions produced a car key to an Enterprise rental car. Id. ¶ 12. The officers located the rental car and, upon peering through the car's windows, saw in plain view a clear plastic bag containing what appeared to be cocaine base. Id. ¶ 13. A lab subsequently confirmed that the substance found in the car was 71.5 grams of cocaine base. Id. ¶ 14. A search of the Enterprise rental car produced approximately $600 and a driver's license bearing defendant's name. Id. ¶ 13.

B. Procedural History

In 2007, a federal grand jury returned a two-count indictment against defendant, charging him with Unlawful Possession with Intent to Distribute Fifty Grams or More of Cocaine Base in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) (“Count One”) and Escape from an Officer in violation of 22 DCC § 2601(a)(2) (“Count Two”). Id. ¶ 1. In March 2009, defendant pled guilty to Count Two, but no plea agreement was filed at that time. Id. ¶ 2. In April 2009, defendant pled guilty to Count One in a written plea agreement in which the parties agreed that a sentence of 84 months imprisonment was appropriate for both Counts One and Two. Id. ¶¶ 59; Plea Agreement ¶ 3, ECF No. 30, Apr. 14, 2009.

Under the U.S. Sentencing Guidelines, the applicable guideline range for Count Two was 5 to 20 months. Id. ¶ 73. The applicable guideline sentencing range for the crack cocaine offense would have been 120 to 150 months (total offense level 27, criminal history category V). Id. ¶¶ 72. On July 31, 2009, defendant was sentenced according to the plea agreement by the Honorable Henry H. Kennedy, Jr. to 84 months imprisonment (an 84–month sentence for Count One and a 60–month concurrent sentence for Count Two). Am. J. & Commitment Order 1–2, ECF No. 42, Aug. 7, 2009. Defendant filed a timely § 2255 Motion on August 17, 2010. Def.'s M, ECF No. 44, Aug. 17, 2010; seeFed. R.App. P. 4(b), 26(a)(2).

II. LEGAL STANDARDA. Section 2255 Motion

A motion under 28 U.S.C. § 2255 allows federal prisoners to collaterally attack an otherwise final sentence if the sentence was (1) imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence was in excess of the maximum authorized by law; or (4) the sentence is otherwise subject to collateral attack. § 2255(a). The petitioner bears the burden of proof under § 2255 and must demonstrate his right to relief by a preponderance of the evidence. United States v. Pollard, 602 F.Supp.2d 165, 168 (D.D.C.2009). Relief under § 2255 is an extraordinary remedy in light of society's legitimate interest in the finality of judgments. United States v. Zakas, 793 F.Supp.2d 77, 79–80 (D.D.C.2011). Indeed, “[t]o obtain collateral relief[,] a prisoner must clear a significantly higher hurdle than would exist on direct appeal.” United States v. Frady, 456 U.S. 152, 166, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). A district court may deny a § 2255 motion without a hearing when “the motion and files and records of the case conclusively show that the prisoner is entitled to no relief.” United States v. Morrison, 98 F.3d 619, 625 (D.C.Cir.1996). Finally, claims not raised on direct appeal may generally not be raised on collateral review. Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). The claim may be raised on collateral review only if the defendant can first demonstrate either that he is “actually innocent,” United States v. Pettigrew, 346 F.3d 1139, 1144 (D.C.Cir.2003) (citations omitted), or that there is both sufficient “cause” excusing his double procedural default and “actual prejudice” resulting from the errors of which he complains, United States v. Frady, 456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982).

B. Ineffective Assistance of Counsel

To prevail on an ineffective assistance of counsel claim, a defendant must satisfy a two-part test that requires proof of both incompetence and prejudice. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). To prove incompetence, a defendant must demonstrate that his attorney's errors were “so serious that counsel was not functioning as the ‘counsel’ guaranteed ... by the Sixth Amendment.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. That is, a defendant must establish that “counsel's representation fell below an objective standard of reasonableness” and that “counsel's conduct so undermined the proper functioning of the judicial process that the [process] cannot be relied on as having produced a just result.” Id. at 686–88, 104 S.Ct. 2052. However, a court should not analyze counsel's actions retrospectively but must, instead, evaluate counsel's performance on the basis of how he or she would have viewed the case at the time, without the benefit of hindsight. Id. at 689, 104 S.Ct. 2052. The court's assessment of counsel's performance must also be comprehensive rather than limited to a particular act or omission. Morrison, 477 U.S. at 386, 106 S.Ct. 2574. Finally, the reviewing court must “indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Second, a defendant must affirmatively prove prejudice that is “so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. To meet this standard, a defendant must show that “but for trial counsel's error[,] there is a reasonable probability that the defendant would have been found not guilty.” Id. at 694, 104 S.Ct. 2052 In the context of a guilty plea, a defendant must prove prejudice by showing that “there is a reasonable probability that, but for counsel's errors, [defendant] would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). A reasonable probability is a “probability sufficient to undermine confidence in the outcome.” United States v. Loughery, 908 F.2d 1014, 1018 (D.C.Cir.1990) (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). The defendant “must shoulder the burden of showing, not merely that the errors ... created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire [proceeding] with error of constitutional dimensions.” Frady, 456 U.S. at 170, 102 S.Ct. 1584.

A failure to make the required showing on either prong defeats a defendant's ineffective assistance of counsel claim. Strickland, 466 U.S. at 700, 104 S.Ct. 2052.

III. DISCUSSIONA. Due Process Violation: Unreasonable Sentence

Defendant argues that his sentence was “unreasonable” and a violation of his “right to due process of law” because his sentence was “[ba]sed largely upon the discrepancy, both in the [U.S.] Sentencing Guidelines and ... 21 U.S.C. [§ ] 841, between crack and p[o]wder cocaine.” Def.'s M. 6. However, defendant did not raise this claim at sentencing or on direct review, Def.'s M. 7, 11, and is thus barred from bringing the claim on collateral review unless defendant can show the requisite “actual innocence,” Pettigrew, 346 F.3d at 1144, or “cause and actual prejudice,” Frady, 456 U.S. at 167–68, 102 S.Ct. 1584. Defendant does not claim actual innocence, and the only “cause” defendant offers for not raising the claim at sentencing or on direct appeal is that “[t]he issue was not preserved for appellate review, as no objection was made regarding this issue at sentencing.” Def.'s M. 11. Such a reason does not show why defendant's double procedural default should be “excused,” Pettigrew, 346 F.3d at 1144, but merely observes that a procedural default occurred. Thus, defendant fails to show the requisite cause. Defendant also makes no claims of prejudice. Because a petitioner must prove both cause and prejudice, and because defendant has failed to prove either, the Court cannot consider defendant's collateral claim challenging the reasonableness of his sentence. See Pettigrew, 346 F.3d at 1144;Frady, 456 U.S. at 167–68.B. Ineffective Assistance

Defendant also did not raise his claim of ineffective assistance of counsel on direct appeal. Def.'s M. 5, 11. However, ineffective assistance of counsel claims are not subject to procedural default and may be advanced in a collateral proceeding under a timely § 2255 motion “whether or not the petitioner could have raised the claim on direct appeal.” Massaro, 538 U.S. at 504, 123 S.Ct. 1690. Thus, the Court considers defendant's ineffective assistance claim.

Defendant claims that his counsel was ineffective because she “failed to...