Borders v. U.S.A, CASE NO. 2:09-CV-616

Decision Date08 December 2010
Docket NumberCRIM. NO. 2:07-CR-00086,CASE NO. 2:09-CV-616
PartiesJOSEPH MATTHEW BORDERS, Petitioner, v. UNITED STATES OF AMERICA, Respondent.
CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio

JUDGE HOLSCHUH

MAGISTRATE JUDGE KING

ORDER and
REPORT AND RECOMMENDATION

Petitioner, a federal prisoner, brings the instant motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. §2255. This matter is before the Court on the amended motion, Doc. 79, Petitioner's memoranda in support and supplemental authority, Docs. 102-105, the return of writ, Doc. 84, the traverse, Docs. 85, 88, and the exhibits of the parties. Petitioner's motion for leave to file an amendment to his memorandum in support, Doc. 103, is GRANTED. For the reasons that follow, the Magistrate Judge RECOMMENDS that Petitioner's motion for return of forfeited property, Doc. 98, be DENIED and that this action be DISMISSED.

FACTS and PROCEDURAL HISTORY

Petitioner was convicted, pursuant to a plea agreement, Doc. 31, on one count of distribution of cocaine in violation of 21 U.S.C. §841(a)(1), (b)(1)(C), one count of using, carrying and brandishing a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. §924(c)(1)(A)(ii), and one count of possession of a firearm not registered to him in the National Firearms Registration and Transfer record in violation of 26 U.S.C. §§5861(d), 5871; he also agreed to forfeit four firearms used, carried or brandished during and in relation to a drug trafficking crime in violation of 18 U.S.C. §924(d)(1). Docs. 32, 37. On August 7, 2008, Petitioner was sentenced to an aggregate prison term of sixty months plus five years supervised release. Docs. 55, 56.

In his amended motion to vacate, set aside or correct sentence under 28 U.S.C. §2255, 1Petitioner asserts that he was denied the effective assistance of counsel because his attorney failed to challenge the indictment, failed "to search the record to discover that Petitioner was not a regulated person" or required to register firearms, failed to object at sentencing to enhancement of his sentence for brandishing a firearm, failed to investigate or present a defense that Petitioner was exempt from the charges due to his gun hobby or as without sufficient connection to interstate commerce, failed to raise the issue of irreconcilable conflict between his convictions on 26 U.S.C. §5841 and 18 U.S.C. §926, failed to raise as a defense Petitioner's right to bear arms under the Second Amendment, failed to file a timely notice of appeal, permitted Petitioner to plead guilty without searching the record for viable defenses or arguing that Petitioner should only be civilly penalized, and failed to argue that the District Court lacked jurisdiction. Amended §2255 Motion, Doc. No. 79. It is the position of Respondent that Petitioner's claims are without merit.

INEFFECTIVE ASSISTANCE OF COUNSEL

Because a criminal defendant waives numerous constitutional rights when he pleads guilty, the plea must be entered into knowingly and voluntarily in order to be constitutionally valid. Boykin v.Alabama, 395 U.S. 238, 244 (1969)." 'The standard was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.' " Sparks v. Sowders, 852 F.2d 882, 885 (6th Cir.1988) (quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)). In applying this standard, the Court must look at the totality of circumstances surrounding the plea. Id. A criminal defendant's solemn declaration of guilt carries a presumption of truthfulness. Henderson v. Morgan, 426 U.S. 637, 648 (1976). Further, a criminal defendant cannot successfully challenge the voluntariness of his plea merely on the basis that he was motivated to plead guilty. Brady v. United States, 397 U.S. 742, 750 (1970).

A prisoner may challenge the entry of a plea of guilty on the basis that counsel's ineffectiveness prevented the plea from being knowing and voluntary. Tollett v. Henderson, 411 U.S. 258, 267 (1973). The two part test announced in Strickland v. Washington, 466 U.S. 668, 687 (1984), applies to challenges to guilty pleas based on a claim of ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 59 (1985); Sparks v. Sowders, 852 F.2d 882, 884 (6th Cir.1988). In order to obtain relief, a prisoner raising such a claim must first show that counsel's advice was not within the range of competence demanded of attorneys in criminal cases. Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884.

The second, or "prejudice" requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in 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.

Hill, 474 U.S. at 59; Sparks, 852 F.2d at 884. Petitioner has failed to meet this standard here.

Petitioner contends that his attorney improperly failed to challenge the sufficiency of the indictment or argue that Petitioner is not a regulated person subject to prosecution under 21 U.S.C. §841. This claim is plainly without merit. "[D]efects in an indictment do not deprive a court of its power to adjudicate the case." United States v. Cotton, 535 U.S. 625, 629-30 (2002). Procedural due process requires that the indictment: "(1) contain[ ] the elements of the charged offense, (2) give[ ] the defendant adequate notice of the charges, and (3) protect[ ] the defendant against double jeopardy." Joseph v. Coyle, 469 F.3d 441, 463 (6th Cir. 2006) (quoting Valentine v. Konteh, 395 F.3d 626, 631 (6th Cir. 2005)). These requirements were met in this case. The Indictment, Doc. 15, appropriately tracks the language in the statutes of the offenses charged and thereby provided petitioner constitutionally adequate notice of the charges against him such that he was sufficiently able to prepare a defense. Petitioner's argument that he is not a "regulated person" and is therefore exempt from prosecution under 21 U.S.C. §841(a), and that his attorney should have challenged the Indictment on this basis or because the statute was not properly enacted, likewise fails. See United States v. Moore, 423 U.S. 122, 340 (1975)(criminal liability under 21 U.S.C. §841 reaches any person); see also United States v. Johnson, 831 F.2d 124, 128 (6th Cir. 1987)(same); United States v. Richards, No. 40-10, 2007 WL 2915180 (E.D. Ky. October 5, 2007)(rejecting same argument as raised by Petitioner in these proceedings).

Congress validly passed 21 U.S.C. § 841 into law; it was signed by the President and duly enacted....

Whether Congress has enacted a title into positive law is relevant only when the wording of the title is in dispute. That is not the case here. When a title is enacted into positive law, Congress gives its authority to the language as it appears in that particular title of the United States Code. Washington-Dulles Transp., Ltd. v. Metro. Washington Airports Auth., 263 F.3d 371, 378 (4th Cir.2003). Failure to enact a statute into positive law is, at best, only of "evidentiary significance and does not render the underlying enactment invalid or unenforceable." Ryan v. Bilby, 764 F.2d 1325, 1327 (9th Cir.1985). "The text of a code section in an enacted title can be taken as authoritative and need not be checked or verified with the corresponding section in the original Statutes at Large which must be done with respect to those titles which have not yet been enacted." Id. citing Sutherland Statutory Construction § 36A:10 at 132 (6th ed.2001). Notably, Congress has enacted less than half of the titles ofthe United States Code into positive law.

United States v. Romig, No. 03-CV-2640, 2003 WL 22143730, at *1 n.2 (D.Minn. Aug. 18, 2003). See also United States v. Rickards, No. 4-10, 2007 WL 2915180 (E.D. Ky. Oct. 5, 2007)("[N]umerous convictions reviewed and upheld under §841 collectively refute Defendant's contentions [that the statute is invalid].")

As discussed by the United States Court of Appeals for the Sixth Circuit in United States v. Frazier, 314 Fed.Appx. 801 (unpublished), 2008 WL 4949153, at *6 (6th Cir. Nov. 19, 2008), Petitioner's argument that the Second Amendment protects his right to carry or brandish a firearm during and in relation to a drug trafficking crime is plainly without merit:

We have long held congressional regulation of firearms constitutional. See, e.g., United States v. Warin, 530 F.2d 103, 107 (6th Cir.1976) ("Even where the Second Amendment is applicable, it does not constitute an absolute barrier to the congressional regulation of firearms."). Indeed, we have also specifically found both 18 U.S.C. §§ 922 and 924 constitutional. United States v. Calor, 340 F.3d 428, 430-31 (6th Cir.2003) ("This Circuit has upheld the constitutionality of § 922(g)(8).") (collecting cases); United States v. Dumas, 934 F.2d 1387, 1388-90 (6th Cir.1990) (rejecting a series of constitutional challenges to 18 U.S.C. § 924); United States v. Helton, 86 Fed.Appx. 889, 892 (6th Cir.2004) (rejecting defendant's Second Amendment challenge to 924(c)). In United States v. Napier, 233 F.3d 394 (6th Cir.2000), we dismissed the defendant's Second Amendment challenge, noting that "[e]very circuit court which has had occasion to address the issue has upheld § 922 generally against challenges under the Second Amendment." Id. at 403 (collecting cases); see also United States v. Waller, 218 F.3d 856, 857 (8th Cir.2000) ("[I]t is now well-settled that Congress did not violate the Second Amendment in enacting [§ 922(g)(1)].")

Id. Thus, Petitioner cannot establish the ineffective assistance of counsel under the two-prong Strickland test for failing to raise these issues.

At Petitioner's guilty plea hearing, the Assistant United States Attorney read the terms of Peti...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT