Wallace v. U.S.A

NICKOYAN WALLACE

v.UNITED STATES OF AMERICA

C.A. No. 04-363-L

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Dated: March 1, 2011

MEMORANDUM AND ORDER

Ronald R. Lagueux, Senior United States District Judge.

Nickoyan Wallace has filed a renewed motion to vacate sentence pursuant to 28 U.S.C. § 2255 seeking review of his re-sentencing by this Court. For the reasons set forth below, that motion is denied, and Wallace's motion to amend the renewed §2255 motion is likewise denied.

I. BACKGROUND AND TRAVEL¹

On November 8, 2001, Wallace was found guilty by a jury of perpetrating an armed robbery of a gun store in Providence.² The evidence showed that Wallace and his brother, Timi Wallace, burst into the gun shop, pointed guns at the proprietor and a female store employee and fled with six guns and ammunition.

The pretrial services report (PSR) calculated a guideline sentencing range (GSR) on Counts 1-3 of 97 to 121 months, based ona total offense level of 29, and a Criminal History Category II. (PSR ¶¶ 7, 8, 14, 58.) The Count 4 offense carried a mandatory consecutive sentence of 7 years (84 months). (Id. ¶32.) This Court sentenced Wallace to 12 0 months imprisonment as to Counts 1, 2 and 3 to be served concurrently and to 60 months imprisonment on Count 4, to be served consecutively to the sentence on Counts 1-3--for a total of 204 months (17 years) imprisonment, followed by three years of supervised release.³

The Court of Appeals affirmed Wallace's conviction on all counts. United States v. Wallace, 71 Fed. Appx. 868 (1st Cir. 2 0 03), and further review was denied by the U.S. Supreme Court on March 22, 2004. In re: Wallace, 541 U.S. 934 (2004).⁴

Wallace then filed his initial motion to vacate sentence pursuant to 28 U.S.C. §2255, raising 11 separate grounds for relief. He subsequently sought to amend his § 2255 motion, to add a claim that his counsel was ineffective for failing to challenge an alleged "unwarranted double-counting" in the imposition of his sentence. Based on the Government's concurrence as to that new claim, this Court granted the motion to amend and awarded § 2255 relief solely on the basis of the double-counting in the calculation of Wallace's sentence, finding it unnecessary to reach Wallace's other § 2255 claims. See United States v. Wallace, 2006 WL 1495518 at *3-4 (D.R.I. May 25, 2006).⁵

This Court set the matter for re-sentencing, appointed new counsel. Attorney William C. DiMitri, to represent Wallace, directed the U.S. Probation Office to prepare a revised PSR, and ordered both the Government and Wallace to file presentence memoranda on (1) whether the sentencing guidelines would be mandatory or advisory at Wallace's resentencing and (2) the extent to which this Court could impose a greater or lesser sentence than the sentence originally imposed. Id. at *4.

The revised presentence report (RPSR) calculated a guideline sentencing range (GSR) on Counts 1-3 of 97 to 121 months, based on a total offense level of 29, and a Criminal History Category II. (RPSR ¶¶ 22-30), with a mandatory consecutive sentence of 7 years for the Count 4 offense. (id. ¶33.) This was the same guideline range as that found in the original PSR for Wallace's original sentencing, although based on different enhancements.⁶ In addition, apparently concerned that this Court would use its new-found discretion under United States v. Booker, 543 U.S. 220 (2005) (holding in part that the guidelines were now advisory only) to impose a heavier sentence, Wallace's counsel filed a sentencing memorandum arguing in part that Wallace should be re-sentenced as if the guidelines were still mandatory.

A resentencing hearing was held on October 25, 2006. After considering a revised presentence report (PSR) and presentence memoranda submitted by counsel, this Court indicated that it would confine any sentence to that within the applicable guideline range and found that range to be 97-121 months for counts 1, 2 and 3, based on an offense level of 29 (as calculated in the RPSR) and criminal history category II, and 84 months on count 4, based on the mandatory penalty. (See Re-sent Tr. at 15, 17-21.) This Court again sentenced Wallace to 120 months imprisonment on counts 1, 2 and 3 to be served concurrently and to 84 months imprisonment on count 4, to be served consecutively, for a total of 204 months imprisonment. See Amended Judgment dated June 4, 2009 (Doc. #222).⁷

Wallace appealed his re-imposed sentence, represented by new counsel, Attorney James Fox, raising as a principal argument that Booker should have applied to his resentencing. The First Circuit affirmed the sentence, United States v. Wallace, Dkt. No. 06-2606 (1st Cir. May 23, 2008), and Wallace's petition for writ for certiorari was denied by the Supreme Court. Wallace v. United States, 129 S.Ct. 137 (Oct. 6, 2008).

Thereafter, Wallace sought and obtained leave to file the instant motion to vacate, challenging his new sentence. See Order dated (Doc.# 232).⁸ In its Order this Court directed that any new §2255 motion must be "limited to claims arising from [his] resentencing... Id. As filed, the new motion to vacate asserts three grounds: (1) that appellate counsel was ineffective in failing to argue certain Fifth and Sixth Amendment claims on appeal from Wallace's resentencing; (2) that this Court erred in relying upon factors neither pleaded nor proved in determining his new sentence; and (3) that this Court erred in having the U.S. Probation Office produce a revised Presentence Report (RPSR) in connection with Wallace's re-sentencing.

Wallace subsequently sought and was granted leave to amend his latest §2255 motion to vacate. See Order dated May 7, 2010 (Doc. #239). He then filed an amendment asserting a claim that both his trial and appellate counsel failed to challenge his conviction as an aider and abettor pursuant to 18 U.S.C. § 2. This proposedamendment is discussed infra. This matter is ready for decision.⁹

II. DISCUSSION

A. Resentencing Claims

1. Relevant Principles

It is well established that the two-pronged test of Strickland v. Washington, 466 U.S. 668 (1984) applies to ineffective assistance claims regarding appellate counsel. Smith v. Robbins, 528 U.S. 259, 285 (2000). As the First Circuit has elaborated:

To establish ineffective assistance of appellate counsel, a defendant "must first show that his counsel was objectively unreasonable." Smith v. Robbins, 528 U.S. 259, 285 (2000). As applied to appellate counsel, that standard is difficult to meet because, to be effective, "appellate counsel... need not (and should not) raise every nonfrivolous claim, but rather may select among them in order to maximize the likelihood of success on appeal." Id. at 288. If a defendant succeeds in making that showing, he must still "show a reasonable probability that, but for his counsel's unreasonable failure to [raise a particular issue], he would have prevailed on his appeal." Id. at 285.

Thompson v. Spencer, 111 Fed.Appx. 11, 13 (1st Cir. 2004).

Wallace first argues that his appellate counsel wasineffective in failing or refusing to raise claims of due process violations under the Fifth and Sixth Amendments in his direct appeal of his resentencing. Specifically, he asserts that his appellate counsel improperly raised a Booker argument and refused to raise claims challenging (1) the application of the new enhancements applied by this Court in connection with his resentencing; and (2) this Court's use of a revised and updated pretrial services report in connection with his re-sentencing. Because Wallace's ineffective assistance claim necessarily involves consideration of the other two claims raised in his motion to vacate, this Court first focuses on the latter two claims, both of which are without merit.

2. Sentencing Enhancements

Wallace claims that this Court's consideration and imposition of "post-jury/ ex post facto" sentencing enhancements in calculating his sentence at re-sentencing violated his rights, including due process rights, under the Fifth and Sixth Amendments and was otherwise contrary to law. He asserts that those enhancements should have been included in his indictment and proved to a jury. (See Motion to Vacate at 11-14.)¹⁰

This claim cannot hold water. It is well-established post-Booker that sentencing enhancements need not be found by a jury and that a sentencing judge may find sentencing facts under the guidelines without violating the Sixth Amendment, so long as such findings neither trigger a statutory mandatory minimum sentence nor increase the maximum statutory penalty otherwise applicable for the offense; it is only when such findings are made under a mandatory system that error may occur. See United States v. Martins, 413 F.3d 139, 152 (1st Cir. 2005) (citing United States v. Antonakopoulos, 399 F.3d 68, 75 (1st Cir. 2005).

Here, Wallace's counsel specifically waived his rights to have the sentencing guidelines deemed discretionary and urged--whether out of concern that this Court would impose a heavier sentence under an advisory guideline regime or otherwise--that they be deemed mandatory for Wallace's re-sentencing. See Wallace, No. 062606 at *1 (noting that Wallace had waived any Booker argument at re-sentencing by requesting that the guidelines be treated as mandatory). Moreover, even if counsel had not made this request, Wallace fails to show any "specific indicia of a reasonable probability of a more favorable outcome, " i.e., a lower sentence. United States v. Sanchez-Berrios, 424 F.3d 65, 80 (1st Cir. 2005). See also Wallace, No. 06-2606 at *1 (even if no Booker waiver found, Wallace failed to show any likelihood of a lesser sentence).

In addition, each of the enhancements imposed by this Court was supported by a preponderance of evidence, and Wallace does notcontend otherwise. Rather, he insists that this Court should have merely deleted consideration of the six-level enhancement for use of a firearm that it found improper...