United States v. Banks, CRIMINAL NO. 1:11-CR-0002

UNITED STATES OF AMERICA v. SHAMAR L. BANKS

CRIMINAL NO. 1:11-CR-0002

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

August 14, 2014

(Chief Judge Conner)

MEMORANDUM

Presently before the court in the above-captioned matter is petitioner Shamar Banks's ("Banks") motion to vacate, set aside, or correct his sentence (Doc. 69) pursuant to 28 U.S.C. § 2255,¹ alleging a denial of procedural due process in violation of the Fifth Amendment and ineffective assistance of counsel in violation of the Sixth Amendment to the United States Constitution. For the reasons that follow, the court will deny Banks's motion.

I. Factual Background and Procedural History

On January 5, 2011, Banks was indicted for (1) distribution and possession with intent to distribute 280 grams or more of cocaine base and cocaine hydrochloride in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, (2) possession of a firearm in furtherance of drug trafficking in violation of 18 U.S.C. § 924(c)(1)(A)(I) and 18 U.S.C. § 2, and (3) being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and 18 U.S.C. § 2. (Doc. 1). On June 29, 2011, Banks agreed to plead guilty to a superseding felony information for distribution and possessionwith intent to distribute 280 grams or more of cocaine base and cocaine hydrochloride pursuant to a written plea agreement. (Doc. 34). On July 20, 2011, the court conducted a change of plea hearing, in which Banks entered a guilty plea after the court apprised him of the consequences of entering a guilty plea. (Docs. 41, 65).

Prior to sentencing, the probation officer filed a pre-sentence report recommending a two-level enhancement for reckless endangerment. See U.S.S.G. § 3C1.2. On February 27, 2012, the court held a sentencing hearing and concluded that Banks's actions in the course of fleeing from law enforcement warranted the reckless endangerment enhancement under U.S.S.G. § 3C1.2. (Doc. 66 at 55-56). The court sentenced Banks to 198 months of imprisonment and three years of supervised release. (Doc. 61). Lori Ulrich, Esq. ("trial counsel"), from the Federal Public Defender's Office, represented Banks from indictment through sentencing. (Doc. 69 at 2; Doc. 74 at 3).

On March 9, 2012, Banks appealed his sentence on grounds that the court committed procedural error by applying the reckless endangerment enhancement. (Doc. 62). On January 4, 2013, the Third Circuit affirmed the court's application of the sentencing enhancement and Banks's sentence. (Doc. 67); see United States v. Banks, 490 F. App'x 484 (3d Cir. 2013).

On December 30, 2013, Banks timely filed the instant motion (Doc. 69) to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. Banks first asserts that the application of the reckless endangerment enhancement violated hisprocedural due process rights under the Fifth Amendment. (Doc. 69 at 10-14). The government opposes this motion as an attempt to merely relitigate the sentencing enhancement. (Doc. 74 at 9). Second, Banks contends that he received ineffective assistance of counsel in violation of the Sixth Amendment during plea negotiations. (Doc. 69 at 3,4, 14-18). The government argues that any deficient performance by Banks's trial counsel did not cause him prejudice to warrant vacating his sentence. (Doc. 74 at 10-11). The motion has been fully briefed and is ripe for disposition.

II. Legal Standard

A petition for writ of habeas corpus pursuant to 28 U.S.C. § 2255 is the appropriate vehicle by which a defendant in federal custody may challenge the legality of a conviction or sentence. See 28 U.S.C. § 2255; In re Dorsainvil, 119 F.3d 245, 249 (3d Cir. 1997). When reviewing a motion to vacate, the court must accept the truth of the petitioner's factual allegations unless clearly frivolous based on the existing record. Gov't of V.I. v. Forte, 865 F.2d 59, 62 (3d Cir. 1989). Where the record affirmatively indicates that petitioner's Section 2255 claim is without merit, the claim may be decided on the record without a hearing. See 28 U.S.C. § 2255(b); Gov't of V.I. v. Nicholas, 759 F.2d 1073, 1075 (3d Cir. 1985). If the record conclusively contradicts the facts asserted in support of a Section 2255 motion, or if petitioner would not be entitled to relief as a matter of law even if the facts as alleged are true, the reviewing court does not commit an abuse of discretion by declining to conduct an evidentiary hearing. See Nicholas, 759 F.2d at 1075.

III. Discussion

In the instant motion, Banks seeks to vacate his conviction and sentence for two main reasons. First, Banks contends that the court violated his procedural due process rights in applying a two-level sentencing enhancement for reckless endangerment under U.S.S.G. § 3C1.2.² (Doc. 69 at 10-14). Second, Banks alleges that his guilty plea was not voluntary due to ineffective assistance of counsel based upon the following acts or omissions of trial counsel: (1) trial counsel told Banks that he would receive a sentence of no more than ten years; (2) trial counsel failed to inform Banks that a guilty plea would result in the loss of substantial collateral rights; and (3) trial counsel failed to inform Banks that his prior state convictions could affect his sentence. (Id. at 3-4, 14-18). The court will address these claims seriatim.

A. Procedural Due Process

The Due Process Clause of the Fifth Amendment prohibits the government from depriving any person of "life, liberty, or property, without due process of law." U.S. CONST. amend. V. To satisfy procedural due process requirements, the government must give a defendant "notice and an opportunity for hearing appropriate to the nature of the case." United States v. Ausburn, 502 F.3d 313, 322(3d Cir. 2007) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950)). In the criminal context, "the sentencing process, as well as the trial itself, must satisfy the requirements of the Due Process Clause." Id. (quoting Gardner v. Florida, 430 U.S. 349, 358 (1977)); United States v. Mannino, 212 F.3d 835, 845-46 (3d Cir. 2000) ("Obviously, a criminal defendant must be afforded due process at sentencing.").

In the case sub judice, Banks does not contest the notice requirement; rather, he focuses on the adequacy of the sentencing hearing. At sentencing, this court follows a three-step process. (Doc. 66 at 3-4); see Gall v. United States, 552 U.S. 38 (2007). The court first calculates a defendant's advisory Guidelines sentencing range based upon a pre-sentence report prepared by the probation officer. Id. at 49. Second, the court permits both parties to submit objections and to suggest an appropriate sentence. Id. Finally, the court considers each of the sentencing factors enumerated in 18 U.S.C. § 3553(a). Id. at 49-50.

A sentencing court need not afford a defendant the full panoply of due process rights that accompanies a full trial. See United States v. Palma, 760 F.2d 475, 477 (3d Cir. 1985). However, the defendant must have the opportunity to comment on the alleged factual predicate for his sentence and the punishment which may be imposed. Ausburn, 502 F.3d at 322. Thereafter, the court may make factual findings by a preponderance of the evidence that do not increase a sentence beyond the statutorily prescribed maximum. See United States v. Grier, 475 F.3d 556, 565-66 (3d Cir. 2007) (stating that "the right to proof beyond a reasonable doubtdoes not apply to facts relevant to enhancements under an advisory Guidelines regime").

Banks argues that he was denied due process at sentencing because the court applied a two-level sentencing enhancement for reckless endangerment unsupported by a preponderance of the evidence. (Doc. 69 at 10). The court disagrees.

The court conducted an extensive hearing regarding the sentencing enhancement. A reckless endangerment enhancement is warranted when "the defendant recklessly created a substantial risk of death or serious bodily injury to another person in the course of fleeing from a law enforcement officer." U.S.S.G. § 3C1.2. Two law enforcement officers testified that, on July 8, 2010, they pursued Banks through a residential neighborhood in close proximity to an elementary school, a college, a public park, and a commercial area. (Doc. 66 at 6-8, 13-16). Both officers noted that there was significant amount of pedestrian traffic and streets lined with parked cars, limiting sight lines and reducing visibility. (Id. at 13-16, 33, 41-42). Sergeant Veater, a York city police officer, joined several other police vehicles to pursue Banks in a marked police vehicle with his lights and sirens activated. (Id. at 37-39, 48). Sergeant Veater estimated that Banks was traveling between forty and fifty miles per hour in a neighborhood with a speed limit of twenty-five miles per hour. (Id. 40, 52). Sergeant Veater also observed that Banks failed to stop at several stop signs. (Id.)

The court notes that Banks's trial counsel cross-examined both of the government's witnesses and presented an argument on Banks's behalf. (Id. at 17-25, 43-47, 52-53). After consideration of the testimony and both parties' arguments, the court determined that Banks's excessive speed—and failure to stop at multiple stop signs—in a residential neighborhood satisfied the requirements of the reckless endangerment enhancement. (Id. at 55-56). The issues were fully litigated at the sentencing hearing, and defense counsel had ample opportunity to present evidence, question witnesses, and present argument. Clearly, there were no procedural due process violations.

B. Ineffective Assistance of Counsel

The Sixth Amendment right to counsel is the right to the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686 (1984). The right to effective assistance of counsel extends to the plea negotiation process. Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012) (stating that the right to counsel extends to all critical stages of criminal...