Graham v. United States

• Decision Date: 19 June 2017
• Docket Number: CR No. 13-132-ML
• Parties: DAMON GRAHAM v. UNITED STATES OF AMERICA
• Court: U.S. District Court — District of Rhode Island

DAMON GRAHAM v. UNITED STATES OF AMERICA

CR No. 13-132-ML

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

June 19, 2017

MEMORANDUM AND ORDER

Pending before the Court is a Petition to Vacate, Set Aside or Correct Sentence Pursuant to 28 USC § 2255 (Doc. #150) ("Motion") filed by Petitioner Damon Graham ("Petitioner" or "Graham"). The Government has filed an opposition to the Motion (Doc. #154) ("Opposition"), to which Graham filed a response (Doc. #155) ("Response"). No hearing is necessary.

FACTUAL BACKGROUND AND TRAVEL

Graham was arrested on July 18, 2013, pursuant to a Criminal Complaint filed that day. An Indictment was filed on September 11, 2013, charging Graham with possession with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 18 U.S.C. § 2; conspiracy to possess with intent to distribute cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and 846; possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C) and 18 U.S.C. § 2; conspiracy to possess with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C), and 846; and being a felon in possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2). On September 18, 2013, Graham was arraigned on the Indictment. Following a December 6, 2013, hearing, the Court granted Graham's motion to proceed pro se and appointed Attorney Terence E. Livingston as stand-by counsel. The Government filed an Information Charging Prior Convictions, pursuant to 21 U.S.C. § 851, on January 6, 2014. A Superseding Indictment, retaining the counts contained in the original Indictment and adding charges of possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A), was filed on February 19, 2014. Graham was arraigned on the Superseding Indictment on February 26, 2014.

On April 23, 2014, Graham pled guilty to six counts of the Superseding Indictment. The Government made an oral motion to dismiss the charges of possession of a firearm in furtherance of a drug trafficking crime, which the Court granted. Graham subsequently filed a motion to withdraw his guilty plea, which was denied at a July 17, 2014, hearing. Graham was sentenced on October 17, 2014, to a term of imprisonment of 186 months, to be followed by eight years of supervised release. Graham filed a Notice of Appeal that day. Judgment entered on October 22, 2014. On October 27, 2015, the Court of Appeals denied Graham's "frivolous" appeal. The appellate court's Mandate issued on November 18, 2015. Graham did not seek further review by the United States Supreme Court.

Graham timely filed the instant § 2255 Motion on December 28, 2016.¹ On March 30, 2017, the Government filed an Opposition to the Motion. Graham filed a Response on May 19, 2017.

DISCUSSION

I. Section 2255 and AEDPA

Generally, the grounds justifying relief under 28 U.S.C. § 2255 are limited. A court may grant such relief only if it finds a lack of jurisdiction, a constitutional error, or a fundamental error of law. See United States v. Addonizio, 442 U.S. 178, 185 (1979)("[A]n error of law does notprovide a basis for collateral attack unless the claimed error constituted a fundamental defect which inherently results in a complete miscarriage of justice.")(internal quotation marks omitted).

Section 2255 states that:

(a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

28 U.S.C. § 2255(a).

In 1996, Congress enacted the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), which "imposed significant new constraints on proceedings under section 2255." Trenkler v. United States, 536 F.3d 85, 96 (1st Cir. 2008)(footnote omitted). "Some of these constraints were temporal; for example, AEDPA established a one-year statute of limitations for filing a section 2255 petition." Id. (citing 28 U.S.C. § 2255(f)). Others were numerical, requiring a petitioner to obtain preclearance from the circuit court before filing a second or successive petition. Id. (citing 28 U.S. § 2255(h)).

II. Strickland

A defendant who claims that he was deprived of his Sixth Amendment right to the effective assistance of counsel must demonstrate:

(1) that his counsel's performance fell below an objective standard of reasonableness; and

(2) a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687-88 (1984); United States v. Manon, 608 F.3d 126, 131 (1st Cir. 2010)(same). In assessing the adequacy of counsel's performance, a defendant "'mustidentify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' and the court then determines whether, in the particular context, the identified conduct or inaction was 'outside the wide range of professionally competent assistance.'" Manon, 608 F.3d at 131 (quoting Strickland, 466 U.S. at 690); see also Strickland, 466 U.S. at 689 (noting that the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ..."). To show prejudice under Strickland, the defendant must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. A reasonable probability is one "sufficient to undermine confidence in the outcome." Id. In making the prejudice assessment, the court focuses on the "fundamental fairness of the proceeding." Manon, 608 F.3d at 131; see also Strickland, 466 U.S. at 696. "Unless a defendant makes both showings, it cannot be said that the conviction ... resulted from a breakdown in the adversary process that renders the result unreliable." Strickland, 466 U.S. at 687; see also Reyes-Vejerano v. United States, 117 F. Supp. 2d 103, 106 (D.P.R. 2000)("The petitioner has the burden of proving both prongs of this test, and the burden is a heavy one."). "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686.

The same principles apply in the context of guilty pleas. See Hill v. Lockhart, 474 U.S. 52, 57 (1985). The Hill Court held that "the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel." Id. at 58; see also Padilla v. Kentucky, 559 U.S. 356, 371 n.12 (2010)("In Hill, the Court recognized-for the first time-that Stricklandapplies to advice respecting a guilty plea."). The first prong of the Strickland test is nothing more than a restatement of the standard of attorney competence described above. Hill, 474 U.S. at 58.

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.

Id. at 59 ; see also Lafler v. Cooper, 566 U.S. 156, 163 (2012)("In the context of pleas a defendant must show the outcome of the plea process would have been different with competent advice."); id. at 164 ("In these circumstances a defendant must show that but for the ineffective advice of counsel there is a reasonable probability that the plea offer would have been presented to the court (i.e., that the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances), that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer's terms would have been less severe than under the judgment and sentence that in fact were imposed."). "To show prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected because of counsel's deficient performance, defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel." Missouri v. Frye, 566 U.S. 133, 147 (2012). The Hill Court reiterated that, as stated in Strickland, "these predictions of the outcome at a possible trial, where necessary, should be made objectively ...." 474 U.S. at 59-60; see also Padilla, 559 U.S. at 372 (noting that "to obtain relief on this type of claim, a petitioner must convince the court that a decision to reject the plea bargain would have been rational under the circumstances").

III. Analysis

A. Ineffective assistance of counsel

Graham alleges that he received ineffective assistance of counsel during the pre-trial stages of the proceedings.

1. Failure to file motion to suppress

Graham argues that counsel, prior to being appointed stand-by counsel, "fail[ed] to research and advance a meritorious Fourth Amendment claim that has prejudiced Petitioner." Response at 7; see also id. at 4; Motion at 7. Specifically, Graham faults counsel for failing to file a motion to suppress evidence seized as a result of a dog sniff outside a storage unit. Motion at 7-8; Response at 5-7. Although a warrant was eventually sought and obtained to search the contents of the storage unit, Graham contends that the ...