Ingram v. U.S. of Amercia, No. C 14–4071–MWB

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Writing for the Court: MARK W. BENNETT, U.S. DISTRICT COURT JUDGE
• Citation: 296 F.Supp.3d 1076
• Parties: Michael INGRAM, Petitioner, v. UNITED STATES of Amercia, Respondent.
• Docket Number: No. C 14–4071–MWB
• Decision Date: 31 October 2017

296 F.Supp.3d 1076

Michael INGRAM, Petitioner,
v.
UNITED STATES of Amercia, Respondent.

No. C 14–4071–MWB

United States District Court, N.D. Iowa, Western Division.

Signed October 31, 2017

296 F.Supp.3d 1079

Shelley A. Goff, Goff & Goff, Ruston, LA, for Petitioner.

Shawn Stephen Wehde, US Attorney's Office, Sioux City, IA, for Respondent.

OPINION AND ORDER REGARDING PETITIONER'S AMENDED MOTION PURSUANT TO 28 U.S.C. § 2255 TO VACATE, SET ASIDE, OR CORRECT SENTENCE

MARK W. BENNETT, U.S. DISTRICT COURT JUDGE

TABLE OF CONTENTS

I. INTRODUCTION ...1079

II. LEGAL ANALYSIS ...1080

A. Procedural Default ...1080

B. The Eighth Amendment Claim ...1081

C. The Equal Protection/Selective Prosecution Claim ...1082

1. Preliminary matters ...1082

2. Elements of the claim ...1082

a. Discriminatory effect/similarly situated ...1084

b. Lack of a rational basis ...1088

D. Certificate Of Appealability ...1089

III. CONCLUSION ...1090

I. INTRODUCTION

On March 17, 2016, with the assistance of counsel, petitioner Michael Ingram filed

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his Amended Motion Pursuant To 28 U.S.C. § 2255 To Vacate, Set Aside, Or Correct Sentence ( § 2255 Motion), seeking relief from his mandatory minimum sentence on his 2008 conviction for conspiracy to distribute and to possess with intent to distribute crack cocaine. Ingram's mandatory minimum sentence was doubled from 10 years to 20 years, pursuant to 21 U.S.C. § 851, based on a prior felony drug conviction. Ingram's Amended § 2255 Motion seeks relief on two of his original claims: (1) a claim that the imposition of a § 851 enhancement in his case violated his Eighth Amendment rights; and (2) a claim that the imposition of a § 851 enhancement in his case violated his Fifth Amendment rights to Equal Protection and Due Process (his equal protection/selective prosecution claim).¹ Both claims are based on the geographical disparity in the application of § 851 enhancements between this and other districts.

On February 8, 2017, after reviewing the parties' briefs, I entered an Order for further briefing on specific issues. The parties filed their Supplemental Briefs on March 17, 2017, and Supplemental Replies on March 31, 2017. In addition, on March 17, 2017, Ingram filed a Motion To Expand The Record Pursuant To Rule 7 Of The Rules Governing Section 2254 Cases, to which the respondent consented, and on March 18, 2017, Ingram filed an Amended Motion To Expand The Record, involving one additional exhibit, to which the respondent also consented. Ingram's Motions To Expand The Record identify Rule 7 of the Rules Governing Section 2254 Cases as the authority on which they are based. That rule, while inapplicable to this § 2255 case, is identical to Rule 7 of the Rules Governing Section 2255 Cases. Because I find good cause supports Ingram's Motions To Expand The Record, and the respondent has consented, those motions are granted .

After reviewing the parties' first round of supplemental briefs, I entered an Order on May 26, 2017, requiring the parties to make a proffer of evidence on Ingram's "equal protection/selective prosecution" claim and requiring supplemental briefing of the question of whether there is a rational basis for the geographic disparity between the imposition of a § 851 enhancement on Ingram in this district and lack of such an enhancement for similarly-situated persons in other districts. The parties filed their Proffers Of Evidence on August 10 and 11, 2017, and their Second Supplemental Briefs on September 15, 2017. Ingram filed a Second Supplemental Reply on September 29, 2017.

I conclude that Ingram's § 2255 Motion is now ripe for disposition.

II. LEGAL ANALYSIS

A. Procedural Default

Before considering any other questions in this case, I find it appropriate to address the respondent's contention, in its original briefing, that Ingram's claims are procedurally defaulted. The respondent is correct that, where a claim was not raised on direct appeal, it generally may not be raised in a § 2255 motion. Walking Eagle v. United States , 742 F.3d 1079, 1082 (8th Cir. 2014). A petitioner may overcome "procedural default" from failure to raise a claim on direct appeal, however, if the petitioner establishes both " ‘cause for the procedural default and actual prejudice

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resulting from the error.’ " Id. (quoting United States v. Apfel , 97 F.3d 1074, 1076 (8th Cir. 1996), in turn citing United States v. Frady , 456 U.S. 152, 167–68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ). The Supreme Court has recognized that a showing that the factual or legal basis for a claim was not reasonably available to counsel (or the defendant) would constitute cause under this standard. See, e.g., Strickler v. Greene , 527 U.S. 263, 284, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) ; Murray v. Carrier , 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) ; and compare Murphy v. King , 652 F.3d 845, 850 (8th Cir. 2011) (where the factual basis for a claim was available to counsel, but counsel failed to recognize it, there is no adequate "cause" for the default).

Although I made an anecdotal observation at Ingram's sentencing that there appeared to be unfair geographic disparities in the application of § 851 enhancements, contrary to the respondent's present contentions, that is a long way from an adequate factual basis for Ingram's § 2255 claims. Indeed, the only body that had the pertinent information, the United States Sentencing Commission, did not publish the relevant statistics that could establish an adequate factual basis for such a claim until 2011. See Strickler , 527 U.S. at 284, 119 S.Ct. 1936 (noting that a cause external to the defense, such as the information being solely in the hands of the government, was required). It was not until I published my analysis of the disparity, specifically comparing the Northern District of Iowa to other districts, in United States v. Young , 960 F.Supp.2d 881 (N.D. Iowa 2013), that an adequate basis for Ingram's claim became apparent. Thus, I find that Ingram has shown cause for his failure to raise on his direct appeal the geographic disparity in application of § 851 enhancements, because the factual basis for such a claim was not reasonably available to him or his counsel before Ingram's appeal. Strickler , 527 U.S. at 284, 119 S.Ct. 1936.

The prejudice prong requires a showing that there is a reasonable probability that, but for the cause in question, the result of the proceeding would have been different. See Kennedy v. Kemna , 666 F.3d 472, 477 (8th Cir. 2012). Removing improper selective application of the § 851 enhancement in Ingram's case would have resulted in a halving of his mandatory minimum sentence and a significant reduction of his sentence to one within his advisory Sentencing Guidelines range. I find that difference sufficient "prejudice" to overcome procedural default.

Thus, procedural default does not bar relief on Ingram's claims.

B. The Eighth Amendment Claim

Ingram's first claim is that imposition of a § 851 enhancement in his case, on the basis of geographical location, violates the Eighth Amendment. Ingram relies on Justice Douglas's statement in his concurrence in Furman v. Georgia , 408 U.S. 238, 256, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), that a "capriciously selected random handful upon whom the sentence of death is imposed is unconstitutional cruel and unusual punishment under the Eighth Amendment requiring penal laws to be evenhanded, non-selective, and non-arbitrary." The respondent argues that a § 851 enhancement, even one doubling the mandatory minimum sentence from ten years to twenty years, is not closely comparable to a death penalty. Indeed, the respondent argues that the Eighth Amendment forbids only "grossly disproportionate" sentences, but the Eighth Circuit Court of Appeals has concluded that mandatory minimum penalties do not violate the Eighth Amendment. The respondent also argues that Ingram's § 851 enhanced

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mandatory minimum sentence of twenty years is not grossly disproportionate to his advisory Sentencing Guidelines range of 168 to 210 months, nor does it exceed the sentence permitted by statute.

As the Eighth Circuit Court of Appeals has explained,

" ‘[A] sentence within statutory limits is generally not subject to review under the Eighth Amendment.’ " United States v. Rodriguez–Ramos , 663 F.3d 356, 366 (8th Cir.2011) (quoting

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