Hart v. United States, : 07-105

• Decision Date: 23 August 2011
• Docket Number: NO: 07-105,: 07-105
• Parties: DORIAN TYRONE HART v. UNITED STATES OF AMERICA
• Court: U.S. District Court — Eastern District of Louisiana

DORIAN TYRONE HART v. UNITED STATES OF AMERICA

NO: 07-105

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA SECTION: R(5)

Dated: August 23, 2011

CRIMINAL ACTION

ORDER AND REASONS

Before the Court is Dorian Tyrone Hart's motion to vacate his sentence under 28 U.S.C. § 2255. Upon review of the entire record, the Court has determined that this matter can be disposed of without an evidentiary hearing. For the following reasons, the Court DENIES the motion.

I. BACKGROUND

On March 16, 2007, the Government filed an indictment charging Tyrone Hart with one count of conspiracy to distribute five or more kilograms of a mixture or substance containing a detectable amount of cocaine hydrochloride in violation of 21 U.S.C. § 846, and one count of using a communication facility, a cellular telephone, in committing the conspiracy offense in violation of 21 U.S.C. § 843(b).¹ Initially, Hart was charged with five co-defendants. The Government filed a bill of information to establish that Hart had one earlier felony drugconviction.²

Hart entered a plea agreement with the Government under Federal Rule of Criminal Procedure 11.³ Under the plea agreement, the Government agreed (1) to move to dismiss count six of the indictment, charging Hart with the use of a communication facility to commit the conspiracy offense, at the time of sentencing; (2) not to charge Hart with any other violations of the Controlled Substances Act; (3) to charge Hart with one earlier drug conviction instead of the three that could have been charged, and that would have resulted in a mandatory life sentence upon conviction; (4) to file a motion with the Court stating that Hart timely accepted responsibility and was therefore entitled to a three-point reduction in offense level; (4) to inform the Court of any cooperation Hart rendered before sentencing.⁴ In exchange, and in addition to his guilty plea to the first count of the indictment and the bill of information charging him with an earlier felony drug conviction, Hart waived his right to contest his conviction or sentence in any post-conviction proceeding, including a proceeding under 28 U.S.C. §§ 2241 or 2255, except if he established ineffective assistance of counsel directly affected the validity of his waiver of appealand collateral challenge rights or the validity of the guilty plea itself.⁵

On January 21, 2009, Hart was sentenced to twenty years of imprisonment on Count 1, the mandatory minimum penalty due to his admission of an earlier conviction for a felony drug offense.⁶Hart appealed to the Fifth Circuit.⁷ Appellate counsel moved for leave to withdraw and filed an Anders brief.⁸ On December 15, 2009, the Fifth Circuit affirmed Hart's conviction.⁹ On March 14, 2011, Hart filed this motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255.¹⁰

II. LEGAL STANDARD

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 orcorrect the sentence." 28 U.S.C. § 2255(a). As with the writ of habeas corpus, see 28 U.S.C. §§ 2241, 2254, only a narrow set of claims is cognizable on a section 2255 motion. The statute identifies four bases on which a motion may be made: (1) the sentence was imposed in violation of the Constitution or laws of the United States; (2) the court was without jurisdiction to impose the sentence; (3) the sentence exceeds the statutory maximum sentence; or (4) the sentence is "otherwise subject to collateral attack." 28 U.S.C. § 2255(a). A claim of error that is neither constitutional nor jurisdictional is not cognizable in a section 2255 proceeding unless the error constitutes "a fundamental defect which inherently results in a complete miscarriage of justice." United States v. Addonizio, 442 U.S. 178, 185 (1979).

The district court must first conduct a preliminary review of a section 2255 motion. "If it plainly appears from the motion, any attached exhibits, and the record of the prior proceeding that the moving party is not entitled to relief, the judge must dismiss the motion." Rules Governing Section 2255 Proceedings, Rule 4(b). If the motion raises a non-frivolous claim to relief, the court must order the Government to file a response or to take other appropriate action. Id. The judge may then order the parties to expand the record as necessary and, if good cause is shown, authorize limited discovery. RulesGoverning Section 2255 Proceedings, Rules 6-7.

After reviewing the Government's answer, any transcripts and records of prior proceedings, and any supplementary materials submitted by the parties, the Court must determine whether an evidentiary hearing is warranted. Rules Governing Section 2255 Proceedings, Rule 8. Under the statute, an evidentiary hearing must be held unless "the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief." 28 U.S.C. § 2255(b). No evidentiary hearing is required, however, if the prisoner fails to produce any "independent indicia of the likely merit of [his] allegations." United States v. Edwards, 442 F.3d 258, 264 (5th Cir. 2006) (quoting United States v. Cervantes, 132 F.3d 1106, 1110 (5th Cir. 1998)).

Ultimately, the petitioner bears the burden of establishing his claims of error by a preponderance of the evidence. See Wright v. United States, 624 F.2d 557, 558 (5th Cir. 1980). For certain "structural" errors, relief follows automatically once the error is proved. See Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003). For other "trial" errors, the court may grant relief only if the error "had substantial and injurious effect or influence" in determining the outcome of the case. Brecht v. Abrahmson, 507 U.S. 619, 637 (1993); see also United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1999) (applying Brecht'sharmless error standard in a § 2255 proceeding). If the Court finds that the prisoner is entitled to relief, it "shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." 28 U.S.C. § 2255(b).

III. DISCUSSION

In his Section 2255 motion, Hart asserts three bases for relief. First, Hart argues that the factual basis of the plea is insufficient because the record does not establish that his "participation in the conspiracy directly involved and foreshadowed the distribution of five or more kilograms of cocaine."¹¹ Second, Hart argues that he was denied effective assistance of counsel because his trial counsel provided inadequate advice concerning the requirements for proving conspiracy under 21 U.S.C. § 841(b)(1)(A). Third, Hart argues that his appellate counsel was ineffective for failing to argue that there was an insufficient factual basis for his guilty plea on appeal.

A. Timeliness

Section 2255(f) provides as follows:

A 1-year period of limitation shall apply to a motion underthis section. The limitation period shall run from the latest of -

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or;

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

28 U.S.C. § 2255(f). Hart's conviction became final 90-days after the Fifth Circuit affirmed his conviction on December 15, 2009, when the time for seeking certiorari in the United States Supreme Court expired. See United States v. Gamble, 208 F.3d 536, 537 (5th Cir. 2000). This Court received Hart's motion for relief on March 14, 2011, which was within the one-year limitation period. Hart therefore timely filed his section 2255 motion.

B. Waiver of Appeal Rights

A defendant may waive his statutory right to appeal as part of a plea agreement. United States v. Henderson, 72 F.3d 463, 465 (5th Cir. 1995). A waiver of post-conviction relief such as28 U.S.C. § 2255 is valid if the waiver is informed and voluntary. United States v. Wilkes, 20 F.3d 651, 653 (5th Cir. 1994). The defendant must know that he had "a right to appeal his sentence and that he was giving up that right." United States v. Portillo, 18 F.3d 290, 292 (5th Cir. 1994) (internal quotation marks and citation omitted). It is the responsibility of the district court "to insure that the defendant fully understands his right to appeal and the consequences of waiving that right." United States v. Gonzalez, 259 F.3d 355, 357 (5th Cir. 2001) (quoting United States v. Baty, 980 F.2d 977, 979 (5th Cir. 1992)).

Here, the evidence indicates that Hart's waiver was both knowing and voluntary. His signed plea agreement contains an express waiver of his right to appeal or seek relief under section 2255.¹² That waiver states that

"[e]xcept as otherwise provided ... the defendant hereby expressly waives his rights to appeal from his conviction and/or his sentence ... [and] waives his right to contest his conviction and/or his sentence in any collateral proceeding, including proceedings brought under Title 28, United States Code, Section 2241 and Title 28, United States Code, Section 2255, on any ground, except that the defendant may bring a post conviction claim if the defendant establishes that ineffective assistance of counsel directly affected the validity of this waiver of appeal and collateral challenge rights or the validity of the guilty plea itself."¹³

In addition, during Hart's rearraignment, the Court summarized the indictment, noted the maximum terms of imprisonment under the statute, and...