Clark v. US
| Decision Date | 19 December 1995 |
| Docket Number | Civil Action No. 4:95cv129.,Criminal No. 89-21-NN |
| Citation | 913 F. Supp. 441 |
| Parties | Jerry Winslow CLARK, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Virginia |
Jerry Winslow Clark, Lexington, KY, Pro Se.
Robert J. Seidel, Jr., U.S. Attorney's Office, Norfolk, VA, for the U.S.
MEMORANDUM AND FINAL ORDER
Petitioner Jerry Winslow Clark ("Clark") has filed this motion under 28 U.S.C. § 2255 asserting various violations of his constitutional rights in connection with his 1990 conviction under 21 U.S.C. § 846 for involvement in a drug conspiracy. The Court has received the government's Answer and Clark's Reply to that Answer. The Court does not feel that an evidentiary hearing is warranted in this case. See Rule 8, Rules Governing § 2255 Proceedings, 28 U.S.C. foll. § 2255. Having closely examined the claims in Clark's motion, the Court has determined that Clark is not entitled to relief. For reasons more fully developed below, Clark's Motion to Vacate, Set Aside, or Correct Sentence is DENIED.
The circumstances surrounding two convictions and one civil forfeiture proceeding are at issue in this motion. Clark was arrested on October 17, 1988 at Norfolk (Virginia) International Airport for being in constructive possession of a suitcase containing quantities of cocaine and heroin. Clark was tried and convicted on December 19, 1988 in this Court on one count of possession of cocaine with the intent to distribute and one count of possession of heroin with the intent to distribute, both in violation of 21 U.S.C. § 841(a)(1). Clark appealed this conviction, contending that evidence essential to his conviction was the product of an illegal search and seizure at the airport. The Fourth Circuit rejected Clark's arguments and affirmed the convictions on December 12, 1989. See United States v. Clark, 891 F.2d 501 (4th Cir.1989).
At the time of his arrest, authorities seized cash and nine pieces of jewelry from Clark.1 The cash and jewelry were forfeited pursuant to 21 U.S.C. § 881(a)(6) and 19 U.S.C. § 1602 et seq.2 The cash was declared forfeit on March 3, 1989, and the jewelry was declared forfeit on March 30, 1989.
After Clark's first conviction, the government offered Clark immunity from further prosecution in exchange for testimony against his brother James T. Clark. Clark declined this offer and on August 1, 1989, was indicted for involvement in a drug conspiracy to distribute heroin and cocaine, in violation of 21 U.S.C. § 846. Clark's conduct at the airport, which had resulted in his prior § 841 conviction, was alleged as the overt act in the conspiracy indictment. Clark was tried and convicted on this charge. At his sentencing for that conviction, the government objected to the offense level of 30 that was calculated in the Presentence Report. The government contended that the quantity of drugs directly associated with the conviction of Clark's indicted co-conspirator and brother James T. Clark should be attributed to Clark. This Court agreed with the government that the drugs distributed by James T. Clark were reasonably foreseeable to Clark and thus should be attributed to Clark as a co-conspirator. Order of February 16, 1990. Accordingly, Clark's offense level was changed from 30 to 34 and the corresponding sentencing range was changed from 97 to 121 months to 151 to 188 months. This Court sentenced Clark within the latter sentencing range. See Order of February 16, 1990.
Clark appealed the § 846 conviction. Among other claims, Clark based his appeal on Double Jeopardy grounds and objected to being held accountable for the drugs possessed and distributed by his brother. Clark contended that use of the § 841 conviction to establish an § 846 conspiracy conviction was a violation of Double Jeopardy. The Fourth Circuit rejected this argument stating that § 846 did not have an overt act as an element, unlike the general conspiracy statute 18 U.S.C. § 371. United States v. Clark, 928 F.2d 639, 641-42 (4th Cir.1991). Therefore, the § 846 conviction was not predicated on the prior § 841 conviction. The Fourth Circuit also held that this Court's determination of the drug attribution issue was not clearly erroneous and thus could not be overturned. Id. at 642-43. Clark's conviction was affirmed.
In the present motion, Clark raises three arguments supporting the vacating of his sentence. First, Clark contends that the second prosecution under § 846 was the result of malicious and vindictive intent by the prosecution. Clark alleges that his appeal of his first conviction along with his failure to cooperate in the prosecution of his brother led to the subsequent indictment for conspiracy. Second, Clark contends that his conspiracy conviction is unconstitutional under the Double Jeopardy Clause because his forfeiture of cash and jewelry constituted a prior punishment for the same conduct. Finally, Clark alleges ineffective assistance of counsel in that his attorney for his first conviction failed to protect Clark's interest in the forfeited property. For the second conviction, Clark alleges that his attorney failed to raise on appeal the issue of prosecutorial vindictiveness and in the appeal actually raised, failed to effectively argue the drug attribution issue.
To obtain collateral relief under § 2255, the petitioner must show cause and actual prejudice. United States v. Frady, 456 U.S. 152, 167, 102 S.Ct. 1584, 1594, 71 L.Ed.2d 816 (1982). "Cause" refers to justification for not having raised the issue previously. Id. at 168, 102 S.Ct. at 1594-95. "Actual prejudice," while not precisely defined, refers do a degree of error placing the result of an entire trial and sentencing in doubt. Id. at 168-69, 102 S.Ct. at 1594-95.
Clark's petition on its face attacks only the sentence imposed as a result of the latter, § 846 conspiracy conviction. Nevertheless, in the course of his argument and in his requests for relief, it is evident that Clark desires this Court to consider the merits of his forfeiture proceeding as well as the merits of his former § 841 convictions. This Court cannot do so.
Rule 2(c) of the Rules Governing § 2255 Proceedings states:
(c) Motion to be directed to one judgment only. A motion shall be limited to the assertion of a claim for relief against one judgment only of the district court. If a movant desires to attack the validity of other judgments of that or any other district court under which he is in custody or may be subject to future custody, as the case may be, he shall do so by separate motions.
28 U.S.C. foll. § 2255. This rule clearly directs the Court to focus on the merits of one conviction and to direct relief accordingly. Therefore, in following Rule 2, this Court will address only arguments and remedies directed at the § 846 conviction.
It should further be noted that forfeiture proceedings under 21 U.S.C. § 881 are civil in nature. See Case of One 1985 Nissan 300 ZX, VIN. JN1C214SFX069854, 889 F.2d 1317, 1319 (4th Cir.1989) (); United States v. Santoro, 866 F.2d 1538, 1543-44 (4th Cir. 1989) (). Section 2255 applies to "a prisoner in custody" under sentence of a federal court who is "claiming the right to be released." 28 U.S.C. § 2255. Section 2255 is intended to mirror the remedies available through federal habeas corpus. See Davis v. United States, 417 U.S. 333, 343, 94 S.Ct. 2298, 2303, 41 L.Ed.2d 109 (1974). Accordingly, a prisoner in a § 2255 motion must attack the fact or length of confinement. Preiser v. Rodriguez, 411 U.S. 475, 484, 93 S.Ct. 1827, 1833, 36 L.Ed.2d 439 (1973) (habeas corpus case). Upon successfully presenting a § 2255 motion, the court may "vacate, set aside, or correct the sentence." Id. A forfeiture, as discussed above, is a civil proceeding and does not impact the liberty of a party with an interest in the property. Dawkins v. United States, 883 F.Supp. 83, 85 (E.D.Va.1995). Therefore, this Court does not have subject matter jurisdiction in this § 2255 action over any claims challenging the legitimacy of the civil forfeiture proceedings.
Clark contends that the second drug prosecution was commenced as retaliation for his appeal of the first conviction and refusal to cooperate in the prosecution of his brother. Clark argues that his case matches the pattern of conduct exhibited in the line of cases where the Supreme Court has overturned convictions for vindictive prosecution or sentencing. See e.g., Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (); North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (). The government would characterize the second prosecution as consistent with Bordenkircher v. Hayes, 434 U.S. 357, 98 S.Ct. 663, 54 L.Ed.2d 604 (1978), where the Supreme Court held that a prosecutor's threats made in the course of plea bargaining do not constitute a violation of Due Process. In Bordenkircher, the Court noted that the "give-and-take negotiation common in plea bargaining" is constitutionally legitimate. Id. at 362-63, 98 S.Ct. at 667-68.
The distinction between an unconstitutional prosecution and constitutional hard bargaining is evidence of a "realistic likelihood of vindictiveness." Blackledge, 417 U.S. at 27, 94 S.Ct. at 2102 (internal quotation omitted). This standard must be distinguished from ...
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