Adams v. United States

• Decision Date: 30 October 2012
• Docket Number: No. 1:10-cr-23,No. 1:11-cv-250,1:10-cr-23,1:11-cv-250
• Parties: KELLY ADAMS, v. UNITED STATES OF AMERICA.
• Court: U.S. District Court — Eastern District of Tennessee

KELLY ADAMS,

v.UNITED STATES OF AMERICA.

No. 1:10-cr-23

No. 1:11-cv-250

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA

Dated: October 30, 2012

Judge Curtis L. Collier

MEMORANDUM

Kelly Adams ("Adams") has filed a pro se motion requesting post-conviction relief pursuant to 28 U.S.C. § 2255 (Crim. Court File No. 182).¹ Adams pleaded guilty, with the benefit of a plea agreement, to possession with intent to distribute 5 grams or more of cocaine base in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(B) and was sentenced to the mandatory minimum sentence of 60 months imprisonment. Adams alleges her sentence is unconstitutional and she is entitled to be re-sentenced under the 2010 Fair Sentencing Act ("FSA") and that counsel was ineffective for failing to challenge her criminal history which she claims is overstated. The United States opposes the motion.

After reviewing the parties' filings, the relevant law, and the record, the Court concludes the motion will be GRANTED IN PART AND DENIED IN PART (Criminal Court File No. 182). The judgment of conviction entered against Adams on October 26, 2010, will be AMENDED and CORRECTED to the following limited extent. The sentence in criminal case number 1:10-cr-23 will be VACATED and the Clerk will be ORDERED prepare a new judgment to reflect Adams' corrected and recalculated sentence based on the United States Sentencing Guidelines ("USSG") thatare now applicable.

I. STANDARD OF REVIEW

A federal prisoner may file a motion pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his conviction or sentence on the ground that it was imposed in violation of the United States Constitution. This Court must vacate and set aside the conviction or sentence if it finds that "the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, ..." 28 U.S.C. § 2255(b).

To obtain relief under § 2255 based on an alleged constitutional error, the burden is on a movant to establish an error of constitutional magnitude which had a substantial and injurious effect or influence on the criminal proceedings. Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); Hill v. United States, 368 U.S. 424, 428 (1962); Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003); Watson v. United States, 165 F.3d 486, 488 (6th Cir.1999). To warrant relief under § 2255, a movant is required to show a fundamental defect in the criminal proceedings which inherently results in a complete miscarriage of justice or an egregious error that rises to the level of a violation of constitutional due process. Davis v. United States, 417 U.S. 333, 346 (1974); Griffin, 330 F.3d at 736; Gall v. United States, 21 F.3d 107, 109 (6th Cir.1994).

When a defendant files a § 2255 motion, he must set forth facts which entitle him to relief. Green v. Wingo, 454 F.2d 52, 53 (6th Cir.1972); O'Malley v. United States, 285 F.2d 733, 735 (6th Cir.1961). "Conclusions, not substantiated by allegations of fact with some probability of verity, are not sufficient to warrant a hearing." Green v. Wingo, 454 F.2d at 53; O'Malley, 285 F.2d at 735(citations omitted). A motion that merely states general conclusions of law without substantiating allegations with facts, is without legal merit. Loum v. Underwood, 262 F.2d 866, 867 (6th Cir.1959); United States v. Johnson, 940 F.Supp. 167, 171 (W.D.Tenn.1996). Thus, a motion consisting of mere legal conclusions unsupported by factual allegations is insufficient to warrant an evidentiary hearing or § 2255 relief. Short v. United States, 504 F.2d 63 (6th Cir. 1974) ("No hearing is required in a section 2255 proceeding if the motion raises no cognizable claim, if the allegations in the motion are unreasonably vague, conclusory, or incredible, or if the factual matters raised by the motion may be resolved on the record before the district court").

II. PROCEDURAL HISTORY

On February 23, 2010, the Grand Jury for the Eastern District of Tennessee, Chattanooga Division, filed a ten-count indictment charging Adams in two counts of the indictment (Criminal Court File No. 3). Adams and others were charge with conspiring to distribute at least five grams of crack cocaine (Count Five), and she and a co-defendant were charged with possession with intent to distribute at least five grams of crack cocaine (Count Eight), both in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B) (Criminal Court File No. 3).

Adams pleaded guilty on May 26, 2010, to Count Eight of the Indictment, pursuant to a written plea agreement with the United States, in consideration of the government's agreement to move the Court to dismiss Count Five at the time of sentencing (Criminal Court File No. 92). The presentence investigation report ("PSR") calculated Adams sentence based on 19.4 grams of crack cocaine for a base offense level of 24 (PSR, ¶¶ 43, 44). After a two-level reduction for a minor role in the offense and a three-level reduction for acceptance of responsibility, her total offense level was 19 (PSR, ¶¶ 45, 50, 53). Although Adams' criminal history category of II placed her in theGuideline range of 33 to 41 months' imprisonment, she was subjected to the 60-month statutory mandatory minimum under 21 U.S.C. § 841(b)(1)(B) (PSR, ¶¶ 60, 78, 79). Adams was sentenced to 60 months imprisonment based on the applicable mandatory minimum on October 14, 2010, and her judgment was entered on October 26, 2010 (Criminal Court File No. 149, Judgment). Adams did not pursue a direct appeal but timely filed the instant § 2255 motion on September 6, 2011 (Criminal Court File No. 182, § 2255 motion).

III. FACTS

As part of her plea agreement, Adams agreed she possessed, or aided and abetted the possession of five grams or more of cocaine base ("crack") with the intent to distribute it. In addition, she agreed and stipulated to the following facts:

a. On January 7, 2009, law enforcement stopped a vehicle in which the defendant was the passenger. The officers ran a trained narcotics detection dog around the car, and the dog "hit." The officers searched and found a cookie of cocaine base ("crack"), which weighed 19.4 grams according to a TBI lab test, in a coat the defendant was wearing.

b. An expert would testify that 19.4 grams of cocaine base ("crack") is a distribution amount. Further, the defendant would admit that her co-defendant, Marcus Smith, who was the driver of the aforementioned car was gong to sell the cocaine base ("crack") and that she was aiding and abetting that illegal narcotics transaction.

c. All of these events occurred in the Eastern District of Tennessee.

(Criminal Court File No. 92).

IV. ANALYSIS OF CLAIMS

Adams raises two claims. First, she alleges her sentence is unconstitutional under the 2010 Fair Sentencing Act ("FSA"). Second, she contends counsel was ineffective for failing to challenge the validity of her prior criminal convictions. The Court will address Adams' ineffective assistance of counsel claim before analyzing her FSA claim and correcting and recalculating her sentencingguideline range.

A. Ineffective Assistance of Counsel

Adams contends counsel was ineffective for failing to challenge the validity of her prior convictions and argue her criminal history was overstated. Adams, however, fails to provide any factual support for this claim. Indeed, Adams fails to demonstrate any of prior convictions were invalid or explain what argument counsel should have advanced to demonstrate her criminal history was overstated.

To establish ineffective assistance of counsel, Adams must demonstrate a deficiency by counsel which rendered counsel's assistance objectively unreasonable and demonstrate the deficient performance resulted in prejudice to her. The Supreme Court, in Strickland v. Washington, 466 U.S. 668 (1984), established the criteria for determining whether a Sixth Amendment claim of ineffective assistance of counsel is meritorious. The Strickland test requires a defendant to demonstrate two essential elements: (1) counsel's performance was deficient, i.e., below the standard of competence demanded of attorneys in criminal cases; and (2) counsel's deficient performance prejudiced the defense, i.e. deprived the defendant of a fair trial rendering the outcome of the trial unreliable. Id. at 687-88; see also Flippins v. United States, 808 F.2d 16, 17-18 (6th Cir.), cert. denied, 481 U.S. 1056 (1987).

Where a Sixth Amendment claim of ineffective assistance of counsel is made in a § 2255 proceeding in the context of a guilty plea, the prejudice prong of the Strickland test is adjusted. Therefore, Adams is required to allege and show there is a reasonable probability that, but for her counsel's errors and deficient performance, she would not have pleaded guilty, and she would have insisted on going to trial. Hill v. Lockhart, 474 U.S. 52, 58-59 (1985) ("[I]n order to satisfy the'prejudice' requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial."). To demonstrate a reasonable probability that she would have gone to trial, Adams is required to present evidence apart from a lone assertion that but for counsel's error she would have pleaded not guilty and gone to trial. See Parry v. Rosemeyer, 64 F.3d 110, 118 (3d Cir.1995) ("A defendant alleging ineffective assistance of counsel in the guilty plea context must make more than a bare allegation that but for counsel's error he would have pleaded not guilty and gone to trial."), cert. denied, 516 U.S. 1058 (1996).

The standard by which a court reviews counsel's performance is highly deferential, and there is a strong presumption counsel's conduct was within the wide range of reasonable professional assistance....