Mitchell v. United States

• Decision Date: 27 March 2013
• Docket Number: Civ. No. 10–65–SLR.,Crim. No. 08–23–SLR.
• Citation: 934 F.Supp.2d 661
• Parties: Clarence MITCHELL, Movant/Defendant, v. UNITED STATES of America, Respondent/Plaintiff.
• Court: U.S. District Court — District of Delaware

934 F.Supp.2d 661

Clarence MITCHELL, Movant/Defendant,

v.UNITED STATES of America, Respondent/Plaintiff.

Crim. No. 08–23–SLR.

Civ. No. 10–65–SLR.

United States District Court, D. Delaware.

March 27, 2013.

Clarence Mitchell, Pro se movant.

Shawn Weede, Assistant United States Attorney, United States Department of Justice, Wilmington, DE, for respondent.

MEMORANDUM OPINION

SUE L. ROBINSON, District Judge.

I. INTRODUCTION

Clarence Mitchell (“movant”) is a federal inmate currently confined at the Federal Medical Center Devens, in Ayer, Massachusetts. Movant timely filed a motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (D.I. 71; D.I. 77) Respondent filed an answer in opposition (D.I. 83), to which movant filed a response (D.I. 89). Movant also filed multiple supplements to his § 2255 motion. (D.I. 95; D.I. 99; D.I. 102) For the reasons discussed, the court will deny movant's § 2255 motion without holding an evidentiary hearing.

II. BACKGROUND

Wilmington Police Department (“WPD”) Detectives Todd Riley and Robert Cunningham conducted a ten-week undercover investigation of movant. United States v. Mitchell, 350 Fed.Appx. 763 (3d Cir.2009). On five separate occasions, an informant made controlled purchases of crack cocaine from movant. Following each purchase, members of the WPD covertly tailed movant in an effort to establish his residence. Id. After the third controlled purchase, officers followed movant, and he eventually drove to the residence at 3411 North Franklin Place. Officers observed movant enter the residence during subsequent surveillance. Id.

After the fifth controlled purchase, Detectives Riley and Cunningham applied for, and obtained, a search warrant for the residence at 3411 North Franklin Place. Id. On the morning of December 27, 2007, Detectives Riley and Cunningham, and approximately ten to twelve other officers, executed the search warrant and recovered approximately 4.5 ounces of cocaine; drug packing paraphernalia, including three plastic bags with a white powdery residue and small plastic bags commonly used for packaging crack cocaine; approximately $6,415 in cash; and, underneath the mattress, a loaded .357 Sig Sauer firearm. Id. at 765.

After his arrest, movant gave two statements to law enforcement, both of which were videotaped and audio recorded. These statements were made after movant knowingly waived his Miranda rights twice—once at his home, and a second time at the police station. (D.I. 183 at 2) Movant indicated that the .357 Sig Sauer found underneath his bed was his firearm, and that he bought it “on the street” about “three months” prior to his arrest. In particular, movant stated that he paid “two fifty” to some “Philly boys” who were coming “through the block” on Seventh Street. Id.

On February 5, 2008, a federal grand jury indicted movant on three counts: (1) possession of a firearm by a person prohibited, in violation of 18 U.S.C. §§ 922(g)(1)& 924(a)(2); (2) possession with intent to distribute cocaine, in violation of 21 U.S.C. §§ 841(a)(1) & (b)(1)(C); and (3) possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. §§ 924(c)(1)(A) and (c)(2).

On May 9, 2008, movant filed an amended motion to suppress evidence and statements, which the court denied on July 30, 2008, 2008 WL 2942142. A two-day jury trial commenced on October 29, 2008. At the close of the government's evidence, movant filed a Rule 29 motion for judgment of acquittal; the court reserved judgment. After movant's case-in-chief, the jury deliberated and found movant guilty on counts two and three. Movant renewed his Rule 29 motion, which the court denied. Movant subsequently pled guilty to count one of the indictment.

The court sentenced movant to twenty-four months of imprisonment for counts one and two, and to sixty months of imprisonment on count three, to be served consecutively. Movant appealed, alleging that the district court erred in denying his amended motion to suppress and in denying his Rule 29 motion for judgment of acquittal. The Court of Appeals for the Third Circuit affirmed movant's convictions. See Mitchell, 350 Fed.Appx. 763.

III. DISCUSSION

Movant timely filed his motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. The arguments asserted in the § 2255 motion fall into one of the following two types of claims: (1) ineffective assistance of counsel; and (2) prosecutorial misconduct.

A. Claim One: Ineffective Assistance Of Counsel

Movant has properly raised his ineffective assistance of counsel argument in the instant § 2255 motion rather than on direct appeal,¹ and the court must review the argument pursuant to the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the first Strickland prong, movant must demonstrate that “counsel's representation fell below an objective standard of reasonableness,” with reasonableness being judged under professional norms prevailing at the time counsel rendered assistance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052. Under the second Strickland prong, movant must demonstrate “there is a reasonable probability that, but for counsel's error the result would have been different.” Id. at 687–96, 104 S.Ct. 2052. Additionally, in order to sustain an ineffective assistance of counsel claim, movant must make concrete allegations of actual prejudice and substantiate them or risk summary dismissal. See Wells v. Petsock, 941 F.2d 253, 259–60 (3d Cir.1991); Dooley v. Petsock, 816 F.2d 885, 891–92 (3d Cir.1987). Although not insurmountable, the Strickland standard is highly demanding and leads to a “strong presumption that the representation was professionally reasonable.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Movant alleges that defense counsel was ineffective for the following reasons: (1) she misled him into thinking he was pleading guilty to count two in order to get him to sign certain stipulations, and then decided to go to trial on that count without consulting him (allegations one, two and six of claim one); (2) she failed to introduceevidence that he gave conflicting statements to the police (allegations three and eight of claim one); (3) she advised him not to testify at trial (allegation four of claim one); (4) she failed to file a motion to suppress on the basis that he was under a “tremendous amount of mental anguish” and was under the influence of “many mind altering prescription drugs” at the time he gave confessions to the police (allegation five of claim one); (5) she misinformed him as to whether his prior drug sales could be considered relevant conduct under the sentencing guidelines (allegation seven of claim one); and (6) she failed to properly advise him of the effect of good-time credit when serving a federal sentence of imprisonment (allegation nine of claim one).

1. Ineffective assistance with respect to the stipulations and failure to obtain a plea agreement on count two

In allegation one of claim one, movant asserts that counsel misled him into signing stipulations of guilt and caused him to believe he was pleading guilty to count two, but then she unilaterally proceeded to trial on count two. In allegation two, movant repeats his contention that defense counsel unilaterally decided to proceed to trial on count two without his knowledge or consent. And, in allegation six, movant asserts that defense counsel did not provide a zealous and loyal defense because she had movant sign a stipulation regarding his guilt without obtaining a guilty plea agreement.

These three allegations stem from the following conduct. Prior to trial, movant signed stipulations indicating that he possessed the cocaine found in his garage with the intent to distribute it, and that he possessed the firearm found underneath his bed. However, movant asserts that he only signed these stipulations because he believed he was pleading guilty to counts one and two, and that these pleas would have resulted in him receiving a three-level reduction to his offense level at sentencing. According to movant, once he signed these stipulations, defense counsel unilaterally decided to proceed to trial on count two without consulting him, thereby denying him the chance to choose between proceeding to trial or pleading guilty.²

The instant three allegations are unavailing. First, the government explicitly asserts that there never was any plea agreement with respect to count two, and movant has not provided any evidence to support his contention that a plea agreement was entered, or even that a plea offer was extended. Significantly, contrary to movant's belief, defense counsel's statement to the court on October 30, 2009, 350 Fed.Appx. 763 (3d Cir.2009), regarding the stipulation and lack of a plea agreement on count two, wherein counsel stated “I guess it could have been a plea” (D.I. 64 at 115), does not, as movant contends, amount to counsel's admission that a “plea existed on count two which was the reason for the signed stipulation of guilt.” (D.I. 59 at 1) Rather, defense counsel's statement indicatesthat, while there could have been a plea, there was not. Moreover, when pleading guilty to count one, movant stated under oath that no other promises were made to him, and that the written agreement to plead guilty to count one accurately reflected his agreement with the government. (D.I. 64 at 114–15) At no point during the plea colloquy for count one did movant state that he had an agreement to plead guilty to count two. Id. Given this record, movant's unsupported assertion fails to establish that counsel acted “unilaterally” in proceeding to trial.

Turning to the prejudice prong of Strickland, movant's contention that counsel's “unilateral action” deprived him of the ability to choose between going to trial and pleading guilty fails to establish prejudice, because he has failed to demonstrate a reasonable...