Robinson v. U.S.
| Decision Date | 14 July 2009 |
| Docket Number | Civil No. 06-14431.,Criminal No. 99-20011. |
| Citation | 636 F.Supp.2d 605 |
| Parties | Marcus ROBINSON, Petitioner, v. UNITED STATES of America, Respondent. |
| Court | U.S. District Court — Eastern District of Michigan |
Janet L. Parker, U.S. Attorney's Office, Bay City, MI, for Respondent.
Marcus Robinson, Terre Haute, IN, pro se.
The petitioner, Marcus Robinson, was convicted of violating the Controlled Substances Act and the Travel Act and sentenced to 130 months in prison. He filed a motion under 28 U.S.C. § 2255 to vacate his sentence, which the Court referred to Magistrate Judge Charles E. Binder for a report and recommendation. Judge Binder filed a report recommending that the motion be denied, and the petitioner filed timely objections. The Court has conducted a de novo review of the matter and concludes that the petitioner's objections criticizing the magistrate judge's treatment of his claims have merit, the magistrate judge incorrectly decided the issues regarding the procedural and substantive bars to relief, but the petition should be denied nonetheless because Sixth Circuit precedent requires a finding that the petitioner's appellate counsel's performance was not deficient.
The main issue raised by the section 2255 motion in this case is whether appellate counsel rendered ineffective assistance by failing to anticipate the Supreme Court's holding in United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), thereby preserving a claim that mandatory application of the United States Sentencing Guidelines to Robinson was unconstitutional. Two Sixth Circuit decisions indicate that such a failure does not amount to deficient performance. See Nichols v. United States, 563 F.3d 240, 253 (6th Cir.2009) (en banc) (); Dunham v. United States, 486 F.3d 931, 934 (6th Cir.2007) (). The magistrate judge recommended denial of the motion on different grounds, which the Court believes are incorrect.
The procedural history of the case is as follows. On February 10, 1999, a federal grand jury returned a multi-count indictment charging the petitioner and several others with conspiracy to manufacture marijuana, and traveling in interstate commerce to advance the conspiracy. Superseding indictments were returned on December 7, 1999 and March 28, 2001. A jury trial commenced against the petitioner and five other defendants on May 15, 2001. On June 14, 2001, the jury returned its verdict finding the petitioner guilty of conspiracy to manufacture 1000 kilograms or more of marijuana or 1000 or more marijuana plants and the Travel Act violations.
At sentencing, the petitioner was held accountable for 3,347.5 kilograms of marijuana, and based on that finding the presentence report recommended a base offense level of 32, citing U.S.S.G. § 2D1.1(c)(4) (2000). That reference was erroneous, however, inasmuch as that quantity of marijuana falls within U.S.S.G. § 2D1.1(c)(3), which calls for a base offense level of 34. This mistake was overlooked by the Court and the government, which did not object to that finding, and after the Court rejected an enhancement for the petitioner's role in the offense, the sentencing guideline range was determined to be 121 to 151. The petitioner was sentenced at the lower end of that range, receiving 130 months in custody.
The petitioner filed a direct appeal, alleging five errors: (1) this Court admitted hearsay statements that were not in furtherance of the conspiracy and where there was no independent proof that the petitioner was a member of the conspiracy; (2) the evidence was insufficient because the circumstantial evidence of the petitioner's participation in the conspiracy was equally consistent with innocence; (3) there was insufficient evidence to support the Travel Act convictions; (4) the defendant was denied due process when the Assistant United States Attorney improperly argued the evidence in closing; and (5) the government knowingly presented false testimony. Prior to oral argument in the court of appeals, the Supreme Court handed down its decision in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), which invalidated the statutory sentencing scheme of the State of Washington. The petitioner's appellate counsel did not raise a sentencing issue or cite Blakely as precedent to challenge the petitioner's sentence under the United States Sentencing Guidelines. The court of appeals affirmed the petitioner's convictions in November 2004. United States v. Robinson, 116 Fed.Appx. 646 (6th Cir.2004).
In January 2005, the Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which avoided a determination that the United States Sentencing Guidelines were unconstitutional by severing a portion of the legislation that made them mandatory. Thereafter, federal sentencing courts were to consider the Sentencing Guidelines in an advisory capacity only. In February 2005, the petitioner filed a petition for writ of certiorari in the Supreme Court challenging the reasonableness of his sentence in light of Booker. In March, the Supreme Court issued an order granting certiorari, vacating the judgment of the court of appeals, and remanding for reconsideration in accordance with Booker. Robinson v. United States, 544 U.S. 945, 125 S.Ct. 1711, 161 L.Ed.2d 519 (2005). However, on remand the court of appeals found that the petitioner had waived the right to reconsideration of his sentence by failing to raise a sentencing issue earlier in his appeal to that court. United States v. Marcus Robinson, No. 01-2395, slip. op. (6th Cir. Dec. 20, 2005). As it turns out, a co-defendant, Dennis Miles, pursued an appellate path similar to Robinson's, but Miles's appellate counsel did raise a sentencing issue in the court of appeals, filed a petition for certiorari, and was successful on remand having his sentence reduced at a re-sentence hearing. Noting the crucial difference between the two—the absence of a sentencing issue in Robinson's original appeal—the court of appeals refused to remand the petitioner's case for re-sentencing and simply dismissed his appeal. A subsequent certiorari petition was denied. Robinson v. United States, 547 U.S. 1021, 126 S.Ct. 1591, 164 L.Ed.2d 303 (2006).
The petitioner then filed the present motion to vacate his sentence under 28 U.S.C. § 2255. He alleges that he received ineffective assistance of counsel at trial and on direct appeal because (1) trial counsel failed to move for a mistrial on the ground that the petitioner's Sixth Amendment right to confront witnesses was violated by admission of out-of-court statements of co-conspirators under Federal Rule of Evidence 801(d)(2)(E); and (2) at sentencing, counsel failed to challenge the base offense level determination that was computed on an amount of drugs found by the Court based on a preponderance of evidence and not by the jury, and appellate counsel failed to raise this issue and the corresponding unconstitutionality of the United States Sentencing Guidelines, thereby anticipating the Supreme Court's decision in United States v. Booker, especially as Booker was foreshadowed by the Court's decision in Blakely v. Washington.
The magistrate judge recommended that the petitioner's motion be denied on both procedural and substantive grounds. Procedurally, Judge Binder concluded that this Court is barred from reviewing the petitioner's motion because the petitioner is merely attempting to re-litigate an issue that was previously decided by the court of appeals by characterizing it as an instance of ineffective assistance of counsel. Substantively, Judge Binder concluded that Booker and Blakely cannot apply retroactively to cases on collateral review, even in the guise of an ineffective assistance of counsel claim.
The petitioner filed timely objections to the report and recommendation. He insists that the sentencing issue was never raised or decided by the court of appeals, so no procedural bar can operate here. And he notes that since the argument is that appellate counsel was ineffective for failing to raise the constitutionality of the Sentencing Guidelines on direct appeal, the question of Booker's retroactivity is irrelevant. In a reply to the government's response to the petitioner's objections, the petitioner withdrew his claim that counsel was ineffective for not asserting a Confrontation Clause argument at trial concerning the co-conspirator statements. Reply Br. [doc. # 593] at 2.
Objections to a report and recommendation are reviewed de novo. 28 U.S.C. § 636(b)(1). The Sixth Circuit has stated that "[o]verly general objections do not satisfy the objection requirement." Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir.2006). "The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir....
To continue reading
Request your trial
-
Cooper v. United States
...to perceive or anticipate a change in the law . . . cannot be considered ineffective assistance of counsel"); Robinson v. United States, 636 F. Supp. 2d 605, 613 (E.D. Mich. 2009) (holding that counsel was not constitutionally deficient in failing to anticipate the Supreme Court's ruling th......
-
Stephens v. United States
... ... perceive or anticipate a change in the law ... cannot be ... considered ineffective assistance of counsel”); ... Robinson v. United States, 636 F.Supp.2d 605, 613 ... (E.D. Mich. 2009) (holding that counsel was not ... constitutionally deficient in failing to ... ...