Sellers v. U.S.
| Decision Date | 29 April 2004 |
| Docket Number | No. Cr. 92-81058.,No. Civ. 01-73469.,Civ. 01-73469.,Cr. 92-81058. |
| Citation | 316 F.Supp.2d 516 |
| Parties | Damond SELLERS, Petitioner/ Defendant, v. UNITED STATES of America, Respondent/Plaintiff. |
| Court | U.S. District Court — Eastern District of Michigan |
Damond Sellers, Manchester, KY, Pro se.
F. William Soisson, Assistant U.S. Attorney, Detroit, MI, for defendant.
Petitioner has timely filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. This court has granted Petitioner's requests to amend his § 2255 motion on two occasions. In addition, Petitioner has filed (1) a motion to appoint counsel, (2) a motion seeking discovery, and (3) a motion to stay adjudication of the § 2255 motion pending resolution of his motion for discovery. For the reasons stated below, Petitioner's motions must be DENIED.
Petitioner was one of nearly two dozen defendants involved in a multi-million dollar drug conspiracy in Detroit during the 1980s and 1990s. Upon investigating these activities, the government issued several multi-count indictments over a period of years. On April 18, 1997, the government charged Petitioner in a fourth superseding indictment with conspiracy to possess with intent to distribute and to distribute cocaine and cocaine base in violation of 21 U.S.C. §§ 841(a)(1) and 846. After initially pleading not guilty, Petitioner subsequently pled guilty to these charges. Following this court's acceptance of that plea and the accompanying plea agreement he entered pursuant to Rule 11 of the Federal Rules of Criminal Procedure ("Rule 11 plea agreement"), Petitioner was sentenced to 168 months imprisonment. Petitioner timely appealed his conviction and sentence.
On appeal, Petitioner essentially raised an ineffective assistance of counsel claim based on two issues: (1) that his counsel did not object to a two-level enhancement of Petitioner's sentence for gun possession and made requests for downward departure specifically excluded by the Sentencing Guidelines; and, (2) that his counsel neither objected to, nor recognized that the lack of reference to Petitioner's use of a firearm in any count of the indictment precluded the district court's firearm enhancement. United States v. Sellers, 9 Fed.Appx. 335, 344, 2001 WL 523524 (6th Cir.2001). The appeals court declined to consider the merits of Petitioner's appeal, suggesting instead that Petitioner pursue a § 2255 motion to develop the record concerning his claims which previously had not been raised in the district court.
In addition to the ineffective assistance claims he had raised in the appeals court, Petitioner's initial § 2255 motion also alleged that (1) the district court lacked jurisdiction because the indictment did not specify any drug amount thus it failed to charge each essential element of the offense; and, (2) he was sentenced pursuant to an unconstitutional statute, 21 U.S.C. § 841(b)(1)(A). Petitioner's first amended § 2255 motion supplemented his original ineffective assistance of counsel claims with allegations that the Rule 11 plea agreement contained information of which his attorney failed to apprize him and that his attorney failed to withdraw from the plea agreement when Petitioner instructed him to do so. Finally, Petitioner's second amended § 2255 motion asserted that a November 1, 2002 "Amendment 4" to the sentencing guidelines should be applied to his case. This memorandum constitutes the court's findings of fact and law on Petitioner's § 2255 motion, as well as his subsequent motions requesting appointment of counsel and seeking discovery.
28 U.S.C. § 2255 Motion
Inasmuch as jurisdiction is a threshold issue, the court begins its analysis with that allegation of Petitioner's § 2255 motion. Petitioner alleges that this court lacked jurisdiction due to a fatally defective indictment. Specifically, Petitioner contends that the indictment did not specify the drug amount with which he was being charged and, therefore, failed to specify each element of the crime. The government summarily contends that this claim is untimely because challenges to an indictment must be made before trial. See, Fed.R.Crim.P. 12(b).
The court finds both Petitioner's and the government's arguments to be misguided. While Rule 12(b) of the Federal Rules of Criminal Procedure does instruct that defenses and objections based on defects in the indictment must be raised prior to trial, it also provides an exception for objections concerning the indictment's failure to show jurisdiction or to charge an offense, which objections may be heard at any time during the pendency of the proceedings. Fed.R.Crim.P. 12(b)(2). Petitioner's argument must be rejected as well. The failure of an indictment to allege drug quantity, or some other element of the offense, does not divest the district court of jurisdiction. U.S. v. Stewart, 306 F.3d 295, 321 (6th Cir.2002)(quoting U.S. v. Prentiss, 256 F.3d 971, 981 (10th Cir.2001)( "failure of an indictment to allege an essential element of a crime does not deprive a district court of subject matter jurisdiction; rather, such failure is subject to harmless error review")). The court's authority to adjudicate this matter is found in 18 U.S.C. § 3231.1 "That's the beginning and the end of the `jurisdictional' inquiry." Hugi v. U.S., 164 F.3d 378, 380 (7th Cir.1999).
The court had subject matter jurisdiction to adjudicate the charges filed against Petitioner. Therefore, his request for § 2255 relief on this ground must be denied.
Petitioner bases his claim that 21 U.S.C. § 841(b)(1)(A) is unconstitutional solely upon the Ninth Circuit Court of Appeals' ruling in United States v. Buckland, 259 F.3d 1157 (9th Cir.2001). The Buckland court declared 21 U.S.C. 841(b) unconstitutional because it allows judges, not juries, to enhance an offender's sentence beyond the prescribed statutory maximum based on a preponderance of the evidence, instead of applying the reasonable doubt standard used in criminal cases. 259 F.3d 1157, 1163. The Ninth Circuit later held that 21 U.S.C. § 841 is not facially unconstitutional and upheld the twenty-seven (27) year sentence that had been imposed. United States v. Buckland, 289 F.3d 558, 562 (9th Cir.2002)(en banc).
It is without question that the Ninth Circuit's 2001 Buckland decision is not controlling authority in the instant case which is governed by the rulings of the Sixth Circuit Court of Appeals. See, Little v. U.S., 242 F.Supp.2d 478, 481 (E.D.Mich.2003)(Taylor, J.)( that a Tenth Circuit Court of Appeals' unpublished decision is not binding upon a federal district court in Michigan, but rather is treated as learned authority); Grove Press, Inc. v. Blackwell, 308 F.Supp. 361, 373 (E.D.Mich.1969)(Keith, J.) (). Additionally, the Sixth Circuit has rejected a similar challenge to the constitutionality of 21 U.S.C. § 841(b). U.S. v. Talley, 15 Fed.Appx. 215, 218-19, 2001 WL 814936 (6th Cir.2001)( § 841(b) facially constitutional because Congress did not state that only judges could make the necessary findings pursuant to the statute, nor did Congress mandate that those findings be made by a preponderance of evidence); U.S. v. Kirksey, 174 F.Supp.2d 611, 618 (E.D.Mich.2001)(Rosen, J.) (citations omitted). Thus, Petitioner's contention that 21 U.S.C. § 841(b)(1)(A) is unconstitutional is wholly without merit and must be denied.
Petitioner's ineffective assistance of counsel claim focuses largely upon the Rule 11 plea agreement he entered. Petitioner contends that he was denied the effective assistance of counsel because (i) counsel failed to inform him that the Rule 11 plea agreement included a charge for possession of a firearm and 50-150 kilograms of cocaine; (ii) counsel failed to advise the court of an error in the presentence investigation report concerning the firearm; and (iii) counsel told Petitioner that he would receive a ten year sentence. Petitioner also alleges that his attorney failed to inform him that the Rule 11 agreement included a waiver of his right to challenge the constitutionality or legality of the sentencing guidelines on appeal. Petitioner argues that but for counsel's promises of a ten year sentence and counsel's failure to inform Petitioner of charges in the presentence investigation report, Petitioner would have pled guilty and stood trial.
A guilty plea is open to attack on the ground that counsel did not provide Petitioner with reasonably competent advice. Cuyler v. Sullivan, 446 U.S. 335, 344, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir.1998). To obtain reversal of a conviction based on an ineffective assistance of counsel claim, Petitioner must prove that (1) his counsel's performance fell below an objective standard of reasonableness; and (2) a reasonable probability exists that, but for counsel's deficient performance, he would have been acquitted. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
The Rule 11 plea agreement at issue was signed by Petitioner and his attorney. Counsel represented Petitioner at all stages of the prosecution. Petitioner's plea agreement contains the following clause relevant here:
No other terms. This agreement incorporates the complete understanding between the parties, and no other promises have been made by the government to the defendant or to the attorney for the defendant....
The plea agreement contains an integration clause restricting its terms to those written in the agreement. An integration clause prevents a criminal defendant who has entered into a plea agreement from prevailing on a claim that the government made oral...
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