United States District Court, E.D. Louisiana
ORDER AND REASONS
IVAN L.R. LEMELLE, District Judge.
Nature of the Motion and Relief Sought
Before the Court is Kevin Lewis's ("Petitioner") pro se 28 U.S.C. § 2255 motion. (Rec. Doc. No. 130). Petitioner is currently serving a 360 month sentence imposed by this Court at the FCC-Yazoo City Medium Complex in Yazoo City, MS. Following two direct appeals and the denial of writ of certiorari by the U.S. Supreme Court, Petitioner filed the instant petition, seeking for this Court to vacate and set aside the judgments. (Rec. Doc. No. 130). The Government has filed a response. (Rec. Doc. No. 139). Petitioner filed a reply (Rec. Doc. No. 142) and a supplemental rebuttal (Rec. Doc. No. 144). The Government filed a surreply (Rec. Doc. No. 151). Petitioner's motion to file a response was denied by this Court. (Rec. Docs. No. 152, 154).
IT IS ORDERED that Petitioner's motion to vacate his sentence and for evidentiary hearing is DENIED and his postconviction application is DIMISSED WITH PREJUDICE.
On June 2, 2010, following a two-day jury trial, Petitioner was convicted along with his co-defendant, James Anderson ("Anderson") of conspiracy to distribute 100 grams or more of heroin, and aiding and abetting the distribution 100 grams or more of heroin. The government's case relied on the testimony of a confidential informant, Bernel Clements ("Clements"). Clements, who had prior state and federal drug convictions, was serving time in prison for violating his federal supervised release by incurring new state drug charges. While Clements was being held on the revocation charges, FBI Special Agent Keith Burriss ("Agent Burriss") approached him about cooperating with the government, and he agreed to do so.
The Undercover Sting Operation
On May 1, 2009, the FBI conducted a sting operation, and Clements completed a buy through Anderson. Clements testified that he went to Anderson's store, having arranged to purchase 4 1/2 ounces of heroin for $11, 000 provided by the FBI. Anderson placed a call to his "brother in law" and told him to "bring the stuff." The brother-in-law arrived 45 minutes later. Clements testified at trial that the person who arrived was Petitioner, and he identified Petitioner in court. Clements noted that Petitioner arrived in a black Toyota Camry or Mazda and wrote down the license plate number. Petitioner left and returned about 45 minutes to an hour later with a plastic bag full of heroin. Agents established surveillance on the Camry, which was still at the store, and when the car left the store, requested that police officers conduct an investigatory stop.
The Investigatory Stop
Sergeant Guillot, of the New Orleans Police Department, who conducted the stop, testified at trial that Petitioner was the driver of the black Camry. Petitioner had a large wad of cash in his front pants pocket, which Guillot estimated to be about two inches thick and too large to fit in a wallet.
Stacey Anderson ("Stacey Anderson"), Petitioner's girlfriend and Anderson's sister, arrived on the scene. According to Clements, Anderson contacted him later that day and told him that his brother-in-law had been stopped by the police. Clements placed a call to Anderson that was recorded and played for the jury. According to Clements, Petitioner was also on the call. Agent Burriss also identified Petitioner's voice on the recording. Clements testified that the next day, May 2, 2009, he met with Anderson and Petitioner at Anderson's store, and Petitioner asked him if he knew anything about the stop.
At trial, Agent Burriss testified regarding call records for two telephones attributed to Anderson, as well as a telephone in Petitioner's possession at the time of his arrest. Records showed 19 telephone calls between the phones associated with Anderson and the phone associated with Petitioner on May 1, and 14 calls on May 2. After May 2, telephone records showed only two telephone calls between those numbers through the end of June.
Anderson entered into a plea agreement with the Government and received a 78 month sentence. Petitioner went to trial, was convicted and received a 360 month sentence.
This Court ruled that Petitioner's 1992 Louisiana manslaughter conviction, for which he served a ten year sentence, constituted a "crime of violence, " qualifying him for a Section 4B1.1 enhancement under the U.S. Sentencing Guidelines. The enhancement elevated his offense level to 37 and his Criminal History Category to VI, resulting in a guidelines range of 360 months to life. Absent the career offender enhancement, Petitioner would have had a total offense level of 26 and would have been in Criminal History Category IV, yielding a range of 92 to 115 months. This Court sentenced Petitioner to concurrent 360 month terms of imprisonment.
With the assistance of appellate counsel, Petitioner directly appealed his conviction and sentence on four bases: (1) career offender enhancement, (2) sufficiency of the evidence, (3) ineffective assistance of counsel, and (4) prosecutorial misconduct. The U.S. Court of Appeals for the Fifth Circuit affirmed Petitioner's conviction but remanded the case for resentencing because the record did not support the career offender enhancement.
On remand, this Court sentenced Petitioner to 360 months. The Court calculated that, absent the career offender enhancement, Petitioner's total offense level would have been 26 and his Criminal History Category would have been IV, resulting in a Guidelines range of 92 to 115 months. However, Petitioner faced a mandatory minimum sentence of 10 years. Petitioner filed a sentencing memorandum requesting the mandatory minimum sentence of 120 months, arguing his improved circumstances and efforts in prison. This Court was not convinced and noted that Petitioner returned to crime within two years of his release from a prior state drug conviction, for which Petitioner spent 10 years in prison. This Court concluded that a 360 month sentence was appropriate, citing Petitioner's criminal history and the failure of sentences in serious manslaughter and drug convictions to deter him from criminal conduct.
In his second appeal, and with the assistance of counsel, Petitioner argued that this Court abused its discretion when it varied from the advisory guideline sentence and re-sentenced him to a 30 year sentence based upon the factors listed in 18 U.S.C. § 3553(a). Petitioner also argued that the imposition of a 30 year sentence was improperly influenced by the original career offender determination. The Fifth Circuit affirmed this Court's sentence, concluding that this Court appropriately considered the 18 U.S.C. § 3553(a) factors in imposing a 360 month sentence for Petitioner's criminal conviction. Petitioner filed a writ of certiorari to the U.S. Supreme Court, which was denied on March 4, 2013.
28 U.S.C. § 2255 Habeas Petition
Petitioner's defense at trial, on direct appeal, and in the instant habeas petitioner is "mistaken identity." Petitioner claims he is not the individual who delivered the heroin to Anderson. In the instant pro se Section 2255 petition, Petitioner asserts four claims: (1) denial of effective assistance of counsel at the trial level; (2) denial of effective assistance at the appellate level; (3) prosecutorial misconduct; and, (4) the imposition of an unconstitutional sentence. Petitioner dedicates the majority of the motion to his first claim for ineffective assistance of trial counsel. Petitioner makes 14 separate arguments under this claim alone. To provide reasonable structure and review, we have grouped similar arguments as well as analysis on core arguments.
The Court now reviews contentions, facts, and the law concerning Petitioner's Section 2255 motion.
Law and Analysis
Section 2255 of Title 28 of the United States Code provides that a federal prisoner serving a court-imposed sentence "may move the court which imposed the sentence to vacate, set aside or correct the sentence." After reviewing the pleadings, any transcripts and records of prior proceedings, the court must determine whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. An evidentiary hearing must be held unless "the motion and files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). Ultimately the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980); U.S. v. Bell, No. 09-8, 2011 WL 3240767, at *2 (E.D. La. 2011).
1. Denial of Effective Assistance of Counsel at Trial
The Sixth Amendment right to counsel is recognized as "the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 685 (1984). A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction has two components. First, the defendant must show that counsel's performance was deficient. Id. at 687. Second, the defendant must show that the deficient performance prejudiced the defense. Id. No special or additional standards apply to ineffectiveness claims made in habeas proceedings. Id. at 698.
Judicial scrutiny of counsel's performance must be highly deferential. Id. at 688. The proper standard for attorney performance is that of reasonably effective assistance. When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness. Id. at 687-88. A court deciding an actual ineffectiveness claim must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. Id. at 690. The court must determine whether, the acts or omissions identified by the defendant were outside the wide range of professionally competent assistance. Id. at 690.
Petitioner takes issue with nearly every aspect of trial counsel's performance. Petitioner's essential complaints can be reduced to five. Trial counsel failed to: (a) investigate or call witnesses; (b) object to hearsay or otherwise impermissible testimony or to impeach testimony; (c) properly advise Petitioner with regard to testifying at trial; (d) move to suppress evidence obtained in violation of the Fourth Amendment; and (e) timely inform Petitioner of a plea deal Petitioner would have accepted.
In making the determination whether the specified errors resulted in the required prejudice, a court should presume that the judge or jury acted according to law. Strickland, 466 U.S. at 694. Further, the court must consider the totality of the evidence before the judge or jury. Id. at 695. The governing legal standard is: whether there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt. Id. The defendant bears the burden of showing that the decision reached would reasonably likely have been different absent the errors. Id. at 696. An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Id. at 692.
a. Failure to investigate or call witnesses
"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. However, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Id. To succeed on a claim for failure to investigate, a defendant "must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial." United States v. Bernard, 762 F.3d 467, 477 (5th Cir. 2014).
Petitioner claims trial counsel failed to investigate the scene at Anderson's store where the drug buy took place. Petitioner believes that an investigation would have revealed that Clements was not familiar with the scene. Trial counsel's cross-examination of Clements demonstrates that trial counsel was not only familiar with the store and the surrounding area but also that trial counsel sought to generate doubt as to Clements's familiarity with the scene. (Rec. Doc. No. 92 at 180-86).
Petitioner also claims trial counsel failed to interview or call to the stand witnesses that would have testified on Petitioner's behalf at trial and disputed Clements's testimony. Specifically, Petitioner claims counsel failed to call his codefendant, Anderson, his girlfriend, Stacey Anderson, a Samuel Nicholas, Jr., and his mother Joyce Nicholas. Petitioner has provided a statement from Anderson, as well as a sworn affidavit from a Mr. Samuel Nicholas Jr. (Rec. Doc. No. 130 at 82, Exhibit D).
The Court reviews trial counsel's decisions not to call the named individuals against the presumption that counsel "made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 689-90. Complaints of uncalled witnesses are not favored in federal habeas corpus review because the presentation of testimonial evidence is a matter of trial strategy and because allegations of what a witness would have stated are largely speculative. Bray v. Quarterman, 265 Fed.Appx. 296, 298 (5th Cir. 2008). To prevail on an ineffective assistance claim based on counsel's failure to call a witness, the petitioner must (1) name the witness, (2) demonstrate that the witness was available to testify and would have done so, (3) set out the ...