Parks v. US

Decision Date13 January 2010
Docket Number5:99CR11-14-V.,No. 5:05CV267-1-V,5:05CV267-1-V
Citation687 F. Supp.2d 564
PartiesCarlos Andreas PARKS, Petitioner, v. UNITED STATES of America, Respondent.
CourtU.S. District Court — Western District of North Carolina

Arnold R. Henderson, Arnold Henderson & Associates, Richmond, VA, for Petitioner.

Amy E. Ray, United States Attorney, Asheville, NC, Gretchen C.F. Shappert, U.S. Attorney's Office, Charlotte, NC, for Respondent.

ORDER

RICHARD L. VOORHEES, District Judge.

THIS MATTER comes before the Court upon Petitioner's Motion to Vacate, Set Aside, or Correct Sentence (Doc. No. 1), filed October 25, 2005; a Motion to Intervene 1 by Aaron Michel (Doc. No. 5), filed December 15, 2005; Respondent's Motion for Summary Judgment (Doc. No. 9), filed January 30, 2006; Petitioner's Motion for Discovery (Doc. No. 13), filed March 29, 2006; and Petitioner's Motion for Summary Judgment (Doc. No. 19), filed May 1, 2006.

For the reasons set forth below, Respondent's Motion for Summary Judgment is granted in part and denied in part; Petitioner's Motion for Summary Judgment is granted in part and denied in part; Petitioner's Motion for Discovery is denied; and Petitioner's Motion to Vacate, Set Aside, or Correct Sentence is granted in part and dismissed in part.

PROCEDURAL HISTORY

Petitioner was one of fifteen individuals indicted by a federal grand jury for conspiracy to possess with the intent to distribute cocaine, cocaine base, and marijuana in violation of 21 U.S.C. § 846. Petitioner was also indicted for possession with intent to distribute cocaine base and aiding and abetting that possession in violation of 21 U.S.C. §§ 841, 2. On March 2, 1999, the Government filed an Information pursuant to 21 U.S.C. § 841(b) notifying Petitioner that the conspiracy charged in Count One involved more than 1.5 kilograms of cocaine base and that the possession with intent to distribute charge in Count Two involved more than 50 grams of cocaine base.

On April 27, 1999, Petitioner filed a Motion to Suppress his statements to law enforcement. After a hearing on the matter, on May 28, 1999, Magistrate Judge McKnight entered a memorandum and opinion recommending the denial of Petitioner's Motion to Suppress. On June 10, 1999, Petitioner filed a second Motion to Suppress. Judge McKnight conducted another suppression hearing and on June 21, 1999, entered a memorandum and opinion recommending the denial of Petitioner's second Motion to Suppress.2

On June 30, 1999, Petitioner entered a "straight-up" plea of guilty to Count One of the Indictment. The Government later moved to dismiss Count Two of the Indictment. On July 25, 2000, this Court sentenced Petitioner to 3603 months imprisonment and five years of supervised release. Judgment was entered on July 27, 2000.

On July 23, 2001, Petitioner filed a Motion to Vacate, Set Aside, or Correct Sentence alleging, among other things that his counsel was ineffective for failing to fully consult with him about an appeal. On October 30, 2003, this Court entered an order dismissing Petitioner's claims without prejudice except for his claim of ineffective assistance of counsel based upon his counsel's failure to fully consult about an appeal, which claim was granted.4 This Court then vacated its July 27, 2000, Judgment and on November 17, 2003, entered an Amended Judgment from which Petitioner could, and did, directly appeal.

On or about February 12, 2004, Petitioner's appellate counsel filed an Anders5 brief with the United States Court of Appeals for the Fourth Circuit requesting that the Fourth Circuit review the case for legal error as counsel identified no cognizable error. Petitioner filed a pro se supplemental appellate brief arguing that the district court erred in enhancing his sentence based upon his role in the offense and for possession of a firearm. On October 29, 2004, the Fourth Circuit, using a plain error standard of review, affirmed the judgment against Petitioner in an unpublished decision specifically holding that the district court did not commit reversible error under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), in sentencing Petitioner based upon a drug quantity of 1.5 kilograms of cocaine base or err in denying Petitioner's motion for a downward departure. United States v. Parks, 113 Fed.Appx. 508, 509-10 (2004). Additionally, the Fourth Circuit held, in response to Petitioner's pro se supplemental brief, that the district court did not err in enhancing Petitioner's sentence based upon his role in the offense and his possession of a firearm. Id. at 510.

On October 25, 2005, Petitioner filed the instant Motion to Vacate. In his Motion to Vacate, Petitioner alleges that his trial and appellate counsel's representation of him was ineffective. In particular, Petitioner alleges that trial counsel's performance was deficient in his failure to advise Petitioner of a pre-arraignment written plea offer and his decision instead to file two motions to suppress. Petitioner asserts that counsel should have known that the motions to suppress, which resulted in the withdrawal of the plea offer, would be futile. Petitioner also asserts that his counsel was ineffective for erroneously informing him that the quantity of drugs attributable to him made no difference in his sentence exposure. Petitioner also alleges that his trial counsel erroneously represented that Petitioner was withdrawing any objection to the factual basis for Petitioner's possession of a firearm enhancement. Finally, Petitioner asserts that his appellate counsel was ineffective for electing not to challenge the drug quantity attributed to Petitioner.

ANALYSIS

Petitioner's contentions that he received ineffective assistance of counsel are governed by the holding in Strickland v. Washington, 466 U.S. 668, 687-91, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Strickland, the Supreme Court held that in order to succeed on an ineffective assistance of counsel claim, a petitioner must establish that counsel's performance was constitutionally defective to the extent it fell below an objective standard of reasonableness, and that he was prejudiced thereby, which is to say that there is a reasonable probability that but for the error, the outcome would have been different. In making this determination, there is a strong presumption that counsel's conduct was within the wide range of reasonable professional assistance. Id. at 689, 104 S.Ct. 2052; Fields v. Attorney General of Md., 956 F.2d 1290, 1297-99 (4th Cir.), cert. denied, 506 U.S. 885, 113 S.Ct. 243, 121 L.Ed.2d 176 (1992). Petitioner bears the burden of proving Strickland prejudice. Fields, 956 F.2d at 1297. If the petitioner fails to meet this burden, a "reviewing court need not consider the performance prong." Id. at 1290.

Moreover, a petitioner who alleges ineffective assistance of counsel following the entry of a guilty plea has an even higher burden to meet. Hill v. Lockhart, 474 U.S. 52, 53-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). When a petitioner challenges a conviction entered after a guilty plea, in order to establish the requisite prejudice, such a petitioner must show that "there is a reasonable probability that but for counsel's errors he would not have pleaded guilty and would have insisted on going to trial." Hooper v. Garraghty, 845 F.2d 471, 475 (4th Cir.), cert. denied, 488 U.S. 843, 109 S.Ct. 117, 102 L.Ed.2d 91 (1988). Claims of ineffective assistance of counsel at sentencing after a guilty plea, however, require a petitioner to establish that a reasonable probability exists that absent the alleged error, the results of the proceeding would have been different. United States v. Mayfield, 320 Fed.Appx. 190, 191 (4th Cir.2009).

A. Sentencing

Petitioner alleges that he received ineffective assistance of counsel at his sentencing hearing. More specifically, Petitioner alleges that his counsel failed to understand the importance of the fact that his Indictment did not set forth a specific drug amount. (Mot. to Vac. 6, 14; Pet. Answ. Opposing Gov't Mot. Summ. J. 7,17.) Petitioner asserts that because his counsel did not challenge the drug amount he was sentenced to a term of imprisonment in excess of the twenty year maximum sentence to which his Indictment exposed him. (Mot. to Vac. 33) As a result of his counsel's deficient performance, Petitioner asserts he was sentenced in contravention of Apprendi v. New Jersey 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). (Mot. to Vac. 3; Pet. Answ. Opposing Gov't Mot. Summ. J. 6 and n. 6.) Petitioner also asserts that he did not authorize the withdrawal of the objection to the drug amount. (Mot to Vac. 17; Pet. Answ. Opposing Gov't Mot. Summ. J. 20.) In addition, Petitioner alleges that, in general, his counsel lacked familiarity with the United States Sentencing Guidelines and with his presentence report.6

Petitioner's main ineffective assistance of counsel claim with regard to sentencing is that his counsel failed to object to a drug amount that was not specifically charged in the Indictment. Petitioner asserts that as a result of his counsel's deficient performance he was sentenced to a greater term of imprisonment than he should have received pursuant to the terms of his Indictment. Furthermore, Petitioner asserts that his counsel withdrew the objection7 to drug quantity without explaining the impact of such a decision and without Petitioner's permission to do so.

In response to Petitioner's claim, the Government argues that trial counsel was not ineffective because the Government had the evidence to prove the alleged drug amount and because trial counsel withdrew the objection for strategic reasons. Petitioner's trial counsel asserts in his affidavit that based upon his "review of the evidence, interview of witnesses, and discussions with Petitioner" he did not object to the drug amount because "the evidence suggested that the government would be able to...

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