Oakes v. US, CS-94-194-JLQ

• Decision Date: 21 October 1994
• Docket Number: CR-90-304-JLQ.,No. CS-94-194-JLQ,CS-94-194-JLQ
• Parties: Jerald OAKES, Jr., Petitioner, v. UNITED STATES of America, Respondent.
• Court: U.S. District Court — District of Washington

872 F. Supp. 817

Jerald OAKES, Jr., Petitioner, v. UNITED STATES of America, Respondent.

Nos. CS-94-194-JLQ, CR-90-304-JLQ.

United States District Court, E.D. Washington.

October 21, 1994.

Jeffry K. Finer, Spokane, WA, for petitioner.

Thomas O. Rice, Asst. U.S. Atty., Spokane, WA, for respondent.

MEMORANDUM OPINION RE: PETITIONER'S AMENDED PETITION TO VACATE AND SET ASIDE A CONVICTION AND SENTENCE BY A PERSON IN FEDERAL CUSTODY

QUACKENBUSH, Chief Judge.

BEFORE THE COURT is Petitioner's Amended Petition to Vacate and Set Aside a Conviction and Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255 (Ct.Rec. 82), heard with oral argument on October 13, 1994. Petitioner was represented by Jeffry Finer; Respondent was represented by Thomas O. Rice. Having reviewed the record, heard from counsel, and being fully advised in this matter, the court orders as follows.

I. FACTUAL BACKGROUND

On November 4, 1990, the North Central Washington Narcotics Task Force executed a search warrant at Petitioner's residence in Tonasket, Washington. During the course of the search, the officers discovered a marijuana manufacturing operation in Petitioner's basement. Petitioner was arrested by the task force officers and charged in the Superior Court of Okanogan County with conspiracy to deliver marijuana. The state sentencing range for Petitioner's offense was 1 to 3 months imprisonment. Because Petitioner was a first time offender with no prior criminal history, his state sentence would likely have been from 0 to 90 days, followed by a period of supervised release. Dissatisfied with the applicable state sentencing range, the task force officers sought prosecution within the federal system.

On November 26, 1990, the federal government filed a civil forfeiture complaint against Petitioner's home, commonly known as 43 Oakes Drive, alleging that the property had been used for the purpose of conducting a marijuana grow operation and was therefore subject to forfeiture pursuant to 21 U.S.C. § 881(a)(6) & (7). See United States v. 43 Oakes Drive, Crumbacher Estates, Tonasket, Washington, CS-90-491-JLQ.

On December 4, 1990, the federal government criminally charged Petitioner with manufacturing marijuana, in violation of 21 U.S.C. § 841(a)(1). See United States v. Oakes, CR-90-304-JLQ. The Government did not include a count within the criminal indictment seeking forfeiture of the Oakes' home. On December 20, 1990, the State Superior Court dismissed the state charge without prejudice.

On March 6, 1991, Petitioner pleaded guilty to the criminal charge. Pursuant to the written plea agreement (Ct.Rec. 22), Petitioner forfeited all interest in the real property, to-wit, his home located at 43 Oakes Drive, which, as previously indicated, was the subject of the civil forfeiture action. The specific language of the plea agreement provided in relevant part:

c. The defendant, Jerald Oakes, Jr., agrees that any and all interests that he has in the property known as 43 Oakes Drive ... shall be forfeited to the United States pursuant to 21 U.S.C. § 881(a)(6) and (7), said property having been used to commit or to facilitate a violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2 ...

(Ct.Rec. 22 at p. 2 lines 8-26) (emphasis added).

On May 24, 1991, pursuant to Petitioner's plea of guilty, this court orally sentenced Petitioner to the mandatory minimum sentence of five years. A written sentencing judgment, however, was not entered. Thereafter, Petitioner filed a motion for reconsideration, which this court granted on June 28, 1991. On August 28, 1991, this court modified its previous sentencing judgment, and sentenced Petitioner to 6 months alternative custody and three years probation. A formal judgment and sentence was entered on August 28, 1991.

On September 6, 1991, the United States appealed the court's sentence.

On January 4, 1992, Petitioner reported to the Geiger Corrections Center to commence service of his sentence.

On January 9, 1992, a decree of forfeiture was entered against the real property in the civil forfeiture action. In the decree of forfeiture, presented by Assistant United States Attorney Gregory Shogren, the Government reiterated its position that Petitioner had forfeited his interest in the real property to the United States pursuant to a criminal plea agreement executed on March 6, 1991. See (Ct.Rec. 37 at p. 2 lines 17-24; Case No. 90-CS-491-JLQ).

On August 14, 1992, the Ninth Circuit reversed this court's sentencing judgment. On December 14, 1992, pursuant to the Ninth Circuit mandate, this court re-sentenced Petitioner to the mandatory five year term. On December 10, 1993, after an appeal by Petitioner, the Ninth Circuit reluctantly affirmed the sentence. United States v. Oakes, 11 F.3d 897 (9th Cir.1993). Although the Ninth Circuit affirmed the harsher sentence, it agreed with this court's statement that the prosecution's decision to seek a five year mandatory minimum, while also forfeiting the Oakes' home, placing Mrs. Oakes and two children under age 5 on the street and homeless, was "bizarre." Id. at 899.

On June 28, 1994, Petitioner, proceeding pro se, filed a § 2255 habeas petition. On August 29, 1994, Petitioner, through his court-appointed counsel, filed an amended § 2255 petition in which he alleged that he was sentenced in violation of the Fifth Amendment double jeopardy clause. Petitioner also alleged that his sentence and civil forfeiture constituted an excessive fine in violation of the Eighth Amendment.

Petitioner's amended petition presents the following issues for review:

1. Whether Petitioner's plea of guilty to the underlying criminal charge waived his right to challenge his sentence on double jeopardy grounds.

2. Whether the Government's criminal prosecution of the Petitioner as well as its parallel civil forfeiture of his real property violated his rights under the Fifth Amendment double jeopardy clause.

3. Whether Petitioner's amended petition seeks to have a new rule applied retroactively.

4. Whether the criminal sentence or the civil forfeiture constitutes the second prohibited punishment.

5. Whether the forfeiture of Petitioner's real property was an excessive fine in violation of the Eighth Amendment.

II. DISCUSSION

In its written brief, the Government rested its argument entirely on the premise that Petitioner waived any conceivable double jeopardy claim when he pleaded guilty to the underlying criminal charges and forfeited his interest in his home pursuant to that plea. Thus, the Government did not address the merits of Petitioner's double jeopardy claim, and appeared to concede the issue subject to its waiver argument and its contention that if double jeopardy existed, the forfeiture was the second punishment. At oral argument, however, the Government contested the merits of Petitioner's double jeopardy claim, and sought permission to file supplemental briefing. Although the court did not grant Respondent's request, the court will consider the Government's oral argument in making its ruling.

A. WAIVER

Respondent begins its waiver argument by citing the well settled proposition that "a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked." See Resp. brief at 5-7, citing Mabry v. Johnson, 467 U.S. 504, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984). Because Mr. Oakes does not challenge either the voluntariness or intelligence of his guilty plea, Respondent contends that his double jeopardy collateral attack must fail under the rule of Mabry and its progeny. See Resp. brief at 8. In support of its argument the Government principally relies upon United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989).

Broce, however, does not support Respondent's position as the following recitation of the case history surrounding the Broce case will reveal. In 1975, the Supreme Court issued a per curiam decision in which it rejected the state's position that a counseled plea of guilty waived a defendant's right to subsequently claim a violation of the double jeopardy clause. See Menna v. New York, 423 U.S. 61, 62, 96 S.Ct. 241, 242, 46 L.Ed.2d 195 (1975) (per curiam). The Court in Menna held that where a state is precluded by the United States Constitution from hailing a defendant into court on a charge, federal law requires that a conviction on that charge be set aside even if the conviction was entered pursuant to a counseled plea of guilty. Id.

What appeared to be a simple and straightforward mandate, however, was twisted by the Court's footnote wherein it stated:

We do not hold that a double jeopardy claim may never be waived. We simply hold that a plea of guilty to a charge does not waive a claim that — judged on its face — the charge is one which the State may not constitutionally prosecute.

Id. at 62 n. 2, 96 S.Ct. at 242 n. 2.

Shortly after the Menna decision was handed down, the Ninth Circuit was faced with the issue of whether a guilty plea waived all double jeopardy claims. See Launius v. United States, 575 F.2d 770 (9th Cir.1978). In Launius, the defendants pleaded guilty to two counts of an information which charged a single offense. The defendants, however, received consecutive sentences that exceeded the statutory maximum for the single offense. Two years after the defendants were imprisoned, they brought a section 2255 petition alleging that the information was multiplicious and that the consecutive sentences violated the double jeopardy clause. Although the district court agreed that the consecutive sentences constituted double jeopardy, it denied relief based upon a finding that the defendants had waived their double jeopardy claim when they pleaded guilty to the information.

The Ninth Circuit reversed the district court, finding that while a plea of guilty waived all constitutional claims with regard to factual guilt, it did not waive those...