King v. U.S.

• Decision Date: 09 August 2002
• Docket Number: No. CIV.2:00CV714.,No. CRIM.2:99CR36.,CIV.2:00CV714.,CRIM.2:99CR36.
• Citation: 214 F.Supp.2d 669
• Parties: Dennis Marc KING, Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — Eastern District of Virginia

214 F.Supp.2d 669

Dennis Marc KING, Petitioner, v. UNITED STATES of America, Respondent.

No. CIV.2:00CV714.

No. CRIM.2:99CR36.

United States District Court, E.D. Virginia, Norfolk Division.

August 9, 2002.

Keith Loren Kimball, Colgan, Kimball & Carnes, Virginia Beach, VA, for petitioner.

James A. Metcalfe, Assistant United States Attorney, Norfolk, VA, for USAt.

OPINION

REBECCA BEACH SMITH, District Judge.

This matter comes before the court on petitioner Dennis Marc King's motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. For the reasons set forth below, petitioner's motion is DENIED.

I. Factual and Procedural History

On April 30, 1999, petitioner pled guilty to one count of being a convicted felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). The plea agreement stated that the maximum penalty for this offense, in addition to a fine and a term of supervised release, was a term of ten years imprisonment, the maximum term provided in 18 U.S.C. § 924(a)(2).¹ The court so informed petitioner during the Rule 11 colloquy.

In the Presentence Investigation Report ("PSR"), however, which was prepared on August 16, 1999, the probation officer indicated that petitioner qualified as an armed career criminal because he had three prior felony convictions for controlled substance offenses and/or crimes of violence occurring on different occasions and was, therefore, subject to an enhanced penalty under 18 U.S.C. § 924(e)(1), which provides for a mandatory minimum term of imprisonment of fifteen years (180 months). In accordance with United States Sentencing Commission, Guidelines Manual, § 4B1.4 (Nov.1998) ("USSG"), petitioner's offense level was raised to reflect the enhancement.² At the sentencing hearing on September 29, 1999, petitioner objected only to the probation officer's failure to award a reduction in offense level for acceptance of responsibility.³ The court sustained the objection and awarded a three-point reduction. The court then sentenced petitioner to the mandatory minimum of 180 months.⁴ Petitioner did not appeal his sentence.

Petitioner filed his motion pursuant to 28 U.S.C. § 2255, raising four grounds of collateral attack: (1) his guilty plea was involuntary because the court violated Rule 11(c) by failing to inform petitioner of the mandatory minimum sentence he would face; (2) his attorney was ineffective for failing to move for the withdrawal of his guilty plea or to note an appeal based on the involuntary nature of his plea; (3) his sentence enhancement under 18 U.S.C. § 924(e)(1) and USSG § 4B1.4 for being an armed career criminal violated his due process rights, because the enhanced penalty was not charged in his indictment; and (4) two of the three predicate offenses used to enhance his sentence under 18 U.S.C. § 924(e)(1) did not meet the criteria for application of that statutory provision.

This court ordered that an evidentiary hearing be held to resolve the factual issue of whether petitioner asked his trial attorney to note an appeal. The court also ordered that counsel be appointed to represent petitioner in that hearing. Petitioner's trial attorney, petitioner, and petitioner's brother, Scott King, each testified at the hearing.⁵ Pursuant to this court's ruling from the bench, both parties submitted supplemental briefs for the court's consideration. Thus, the issues before this court have been fully briefed by each party, the court has held an evidentiary hearing with respect to petitioner's motion, the full record has been reviewed by the court, and this matter is ripe for decision.

II. Discussion

Petitioner proceeds under 28 U.S.C. § 2255,⁶ which provides that "[a] prisoner in custody under sentence of a court established by Act of Congress claiming ... that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence." Id. A petitioner collaterally attacking his sentence or conviction pursuant to § 2255 bears the burden of proving by a preponderance of the evidence that his sentence or conviction was imposed in violation of the United States Constitution or laws, that the court was without jurisdiction to impose such a sentence, that the sentence exceeded the maximum authorized by law, or that the sentence is otherwise subject to collateral attack. See id.; Miller v. United States, 261 F.2d 546, 547 (4th Cir.1958) (per curiam).

A. Involuntary Guilt Plea

Petitioner alleges that it was manifestly unjust that he was sentenced to fifteen years imprisonment after being promised by the government, in the form of a plea agreement, and by the court, during the plea colloquy, that the maximum term of incarceration to which he was subject was ten years. He then basically claims that his lack of notice of the requisite mandatory minimum sentence of fifteen years made his guilty plea unknowing and involuntary. He requests specific performance of his plea agreement,⁷ or, in the alternative, he requests that his plea be vacated and that he be given the opportunity to proceed to trial.

The court construes petitioner's request that his plea be vacated and that he be allowed to go to trial as a claim that the court violated Federal Rule of Criminal Procedure 11(c) in not properly informing petitioner of the mandatory minimum term of incarceration during the plea colloquy. Because petitioner did not raise this objection before the court at sentencing, or on appeal, the claim may be reviewed on its merits only if petitioner can establish "(1) `cause' excusing his double procedural default, and (2) `actual prejudice' resulting from the errors of which he complains." United States v. Frady, 456 U.S. 152, 168, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982); see United States v. Mikalajunas, 186 F.3d 490, 492-95 (4th Cir.1999) (applying Frady on collateral review to sentencing enhancement error not raised on direct appeal); United States v. Maybeck, 23 F.3d 888, 891 (4th Cir.1994) (holding "Frady" cause and prejudice standard applies to ... collateral challenges to unappealed guilty pleas); see also Bousley v. United States, 523 U.S. 614, 621, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ("[E]ven the voluntariness and intelligence of a guilty plea can be attacked on collateral review only if first challenged on direct review. Habeas review is an extraordinary remedy and `will not be allowed to do service for an appeal.'"); United States v. Walsh, 733 F.2d 31 (6th Cir.1984) (petitioner's failure to contest voluntariness of his guilty plea prior to sentencing or on direct appeal precluded him from raising issue in § 2255 motion).⁸

Even if petitioner cannot show cause and actual prejudice for his procedural default under Frady, he can still prevail if he can demonstrate that "a miscarriage of justice would result from the refusal of the court to entertain the collateral attack" due to his "actual innocence." Mikalajunas, 186 F.3d at 493. The Fourth Circuit explained that

[t]he existence of cause for a procedural default must turn on something external to the defense, such as the novelty of the claim or a denial of effective assistance of counsel. And, in order to demonstrate that a miscarriage of justice would result from the refusal of the court to entertain the collateral attack, a movant must show actual innocence by clear and convincing evidence.

Id. (citing Murray v. Carrier, 477 U.S. 478, 488, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986)); accord Sawyer v. Whitley, 505 U.S. 333, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992) (absent cause and prejudice to excuse habeas petitioner's procedural default, court may address merits of claims on a showing of actual innocence). See generally United States v. Davis, 954 F.2d 182, 184 (4th Cir.1992) (to prevail on motion to withdraw guilty plea after sentencing, defendant "must prove that failure to allow withdrawal of the guilty plea would result in a `miscarriage of justice'") (citation omitted).

As discussed infra § II.B., petitioner's counsel was not ineffective for failing to raise this claim at sentencing or on appeal. Also, at the time of petitioner's sentencing, Rule 11 claims were not novel. See, e.g., United States v. Goins, 51 F.3d 400 (4th Cir.1995). Thus, petitioner cannot demonstrate cause for procedurally defaulting this claim. Moreover, as explained infra § II.B.1., petitioner in all likelihood would receive a greater sentence of imprisonment were he to go to trial. Further, petitioner does not now claim that he is innocent of the felon in possession charge,⁹ and he cannot demonstrate actual innocence of being an armed career criminal.¹⁰ Thus, petitioner has not demonstrated a resulting miscarriage of justice by showing his actual innocence with clear and convincing evidence.

B. Ineffective Assistance of Counsel

To establish ineffective assistance of counsel, a petitioner must prove both: "(1) deficient performance and (2) prejudice." Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993); see Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to meet either prong defeats a litigant's ineffective assistance of counsel claim. See Strickland, 466 U.S. at 700, 104 S.Ct. 2052. The court need not address both components of the test if the litigant makes an insufficient showing on one prong of the test. See id. at 697, 104 S.Ct. 2052.

To prove deficient performance, a litigant must show that "counsel's representation fell below an objective standard of reasonableness," which is "simply reasonableness under prevailing professional norms ... considering all the circumstances." Id. at 688, 104 S.Ct. 2052. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689, 104 S.Ct. 2052. In considering whether an attorney's performance was deficient, a court should be "reluctant to second guess the...