Ogg v. United States
| Decision Date | 13 March 2012 |
| Docket Number | No. 3:11-0710,3:11-0710 |
| Parties | KENNETH OGG v. UNITED STATES OF AMERICA |
| Court | U.S. District Court — Middle District of Tennessee |
MEMORANDUM
Pending before the Court are a Motion To Vacate Or Set Aside Pursuant To 28 U.S.C. § 2255 (Writ Of Habeas Corpus) (Docket No. 1); an Amended Petition (Docket No. 11); and a document entitled "Traverse" (Docket No. 16), all filed by the Movant/Petitioner (hereinafter "Petitioner"), pro se. The Government has filed a Response (Docket No. 15).
For the reasons set forth below, the Court concludes that Petitioner's Motion To Vacate (Docket No. 1), Amended Petition (Docket No. 11), and Traverse (Docket No. 16) are DENIED, and this action is DISMISSED.
The Petitioner has also filed a Motion For Intervention As Of Right (Docket No. 17), through which he requests that he be permitted to submit additional Congressional Journals, and that the Government be required to submit Congressional Journals, regarding the constitutionality of the Controlled Substances Act of 1970. The Motion is DENIED, as the Court finds consideration of such materials to be unnecessary to resolve the issues raised by the Petitioner.
In the underlying criminal case, the Petitioner was charged in an Indictment with conspiracy to distribute, and possess with intent to distribute, 100 kilograms or more ofmarijuana, in violation of 21 U.S.C. § 846. (Indictment (Docket No. 1 in Case No. 3:10-00117)). Named as Co-Defendants in the Indictment were Jamie French, Mark Gaskins, Ivan Gomez, and Brenda Maldonado. Id. Petitioner pled guilty to the charge in the Indictment pursuant to a Plea Agreement, in which the Government agreed to consider filing a substantial assistance motion if the Petitioner provided cooperation to law enforcement authorities. (Docket Nos. 109, 110 in Case No. 3:10-00117). The parties also agreed in the Plea Agreement that the Petitioner would receive a two-level enhancement for possession of a firearm pursuant to Section 2D1.1(b)(1) of the Sentencing Guidelines. (Id., at ¶ 10).
The Court subsequently sentenced the Petitioner to a total term of 46 months of imprisonment after granting the Government's substantial assistance motion. (Docket Nos. 153, 154 in Case No. 3:10-00117). Without the grant of the substantial assistance motion, the Petitioner was subject to a mandatory minimum sentence of five years, and a Sentencing Guideline Range of 70-87 months of imprisonment. (Docket No. 154 in Case No. 3:10-00117). The record indicates that the Petitioner did not file a notice of appeal.
Petitioner contends that his conviction should be vacated on the following grounds: (1) he received the ineffective assistance of counsel; (2) he did not knowingly and voluntarily enter a plea of guilty; and (3) the Court was without jurisdiction to adjudicate his criminal case.
Section 2255 provides federal prisoners with a statutory mechanism by which to seek tohave their sentence vacated, set aside or corrected.1 The statute does not provide a remedy, however, for every error that may have been made in the proceedings leading to conviction. The statute contemplates constitutional errors, and violations of federal law when the error qualifies as a "fundamental defect which inherently results in a complete miscarriage of justice." Reed v. Faley, 512 U.S. 339, 114 S.Ct. 2291, 2296, 2299-2300, 129 L.Ed.2d 277 (1994); Grant v. United States, 72 F.3d 503, 505-06 (6th Cir. 1996).
Rule 4(b) of the Rules Governing Section 2255 Proceedings provides that the Court shall consider the "files, records, transcripts, and correspondence relating to the judgment under attack" in ruling on a petition or motion filed under Section 2255. In addition, where the same judge considering the Section 2255 motion also presided over the underlying criminal proceedings, the judge may rely on his own recollection of those proceedings. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 1629 n.4, 52 L.Ed.2d 136 (1977); Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996).
An evidentiary hearing is not required if the record conclusively shows that the Petitioner is not entitled to relief. 28 U.S.C. § 2255; Rule 8 of the Rules Governing Section 2255 Proceedings For The United States District Courts; Arredondo v. United States, 178 F.3d 778,782 (6th Cir. 1999). No hearing is required "if the petitioner's allegations 'cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.'" Id. (quoting Engelen v. United States, 68 F.3d 238, 240 (8th Cir. 1995)).
The Court has reviewed all the files, records, transcripts and correspondence filed in Petitioner's underlying criminal case, as well as the pleadings, briefs, and records filed by the parties in this case. The Court finds it unnecessary to hold an evidentiary hearing because these records conclusively establish that Petitioner is not entitled to relief on the issues raised.
In order to prevail on an ineffective assistance of counsel claim, the burden is on the Petitioner to show: (1) trial counsel's performance was not within the range of competence demanded of attorneys in criminal cases; and (2) actual prejudice resulted from the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Cullen v. Pinholster, 131 S.Ct. 1388, 1403 (2011); Campbell v. United States, 364 F.3d 727, 730 (6th Cir. 2004).
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." Strickland, 104 S.Ct. at 2052; Ludwig v. United States, 162 F.3d 456, 458 (6th Cir. 1998). In analyzing trial counsel's performance, the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 2065.
In order to show actual prejudice in the guilty plea context, the Petitioner must show that "there is a reasonable probability that, but for counsel's unprofessional errors, he would not havepled guilty and would have insisted on going to trial." Hill v. Lockhart, 47 U.S. 52, 106 S.Ct. 366, 369-70, 88 L.Ed.2d 203 (1985). A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Strickland, 104 S.Ct. at 2052.
Petitioner claims that trial counsel was ineffective because he told the Petitioner that he would ask the Court to recommend Petitioner's participation in the Bureau of Prisons' Residential Drug Abuse Program ("RDAP"), and that Petitioner believed he would receive a one-year reduction in his sentence upon completion of the program. Petitioner further states that he is currently participating in the program, but that he will not receive a reduction in his sentence after completion of the program due to the firearm enhancement applied at sentencing. Petitioner contends that he would not have pled guilty if he had known that he would not receive a reduction in sentence after completion of the program. According to the Petitioner, "[h]e was led to believe that even with the plea agreement, once his Counsel asked the Court to admit him into the substance abuse program, he would of necessity receive the one year off." (Docket No. 6, at 2).
Petitioner does not offer any support in the record for his contention that counsel advised him that he would receive a reduction in his sentence for completion of RDAP if he entered a guilty plea. Petitioner does not cite to any section of the Plea Agreement in which a reduction in sentence for substance abuse treatment is mentioned as part of the agreement between the parties. Because the Bureau of Prisons makes decisions about whether an inmate may participate in a particular program during incarceration, it is unlikely that the United States Attorney, on his own authority, could make such an agreement. See United States v. Jackson, 70 F.3d 874, 877-78 (6th Cir. 1995)(". . . it is solely within the authority of the Federal Bureau of Prisons('Bureau') to select those prisoners who will be best served by participation in [drug rehabilitation] programs.") As the Court advised the Petitioner at sentencing, and as stated in the Judgment, the Court's recommendation that a defendant receive substance abuse treatment does not bind the Bureau of Prisons.
Even if counsel had made such a representation to the Petitioner, the Court is not persuaded that Petitioner has demonstrated any resulting prejudice. Petitioner has not shown a reasonable probability that he would have rejected a Plea Agreement through which he received a 14-month reduction from the mandatory minimum sentence of five years, and a 24-month reduction from the bottom of the applicable Sentencing Guideline Range of 70 to 87 months, upon learning that a potential one-year sentence reduction for completion of RDAP was not available. Accordingly, the Court concludes that Petitioner's ineffective assistance of counsel claim is without merit.2
Petitioner appears to also contend that he did not knowingly and voluntarily enter his guilty plea because, at the time he entered the plea, he believed he would receive a reduction in his sentence after completion of RDAP. As discussed above, Petitioner's purported reliance on such a potential reduction in sentence was not reasonable. Petitioner does not cite to any mention of such a potential reduction in sentence in his Plea Agreement. Indeed, the PleaAgreement states that: "No promises, agreements, or conditions have been entered into other than those set forth in this Plea Agreement, and none will be entered into unless memorialized in writing and...
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