U.S. v. Ailsworth, No. CIV. 99-3324-SAC. No. CR. 94-40017-01-SAC.

• Court: United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
• Writing for the Court: Crow
• Citation: 206 F.Supp.2d 1148
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Jessie AILSWORTH, Jr., Defendant/Movant.
• Decision Date: 21 June 2002
• Docket Number: No. CIV. 99-3324-SAC. No. CR. 94-40017-01-SAC.

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206 F.Supp.2d 1148 UNITED STATES of America, Plaintiff/Respondent,
v.
Jessie AILSWORTH, Jr., Defendant/Movant. No. CIV. 99-3324-SAC. No. CR. 94-40017-01-SAC. United States District Court, D. Kansas. June 21, 2002.

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COPYRIGHT MATERIAL OMITTED

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Jessie Ailsworth, Jr., Florence, CO, pro se.

MEMORANDUM AND ORDER

CROW, Senior District Judge.

Following a lengthy jury trial during the summer of 1996, the jury found the defendant guilty of some, but not all of the drug trafficking crimes charged in the second superseding indictment. See United States v. Ailsworth, 948 F.Supp. 1485(D.Kan.1996) (denying defendant's post-trial motions for relief), aff'd, 138 F.3d 843(10th Cir.), cert. denied, 525 U.S. 896, 119 S.Ct. 221, 142 L.Ed.2d 181 (1998). Based upon the substantial amount of cocaine base attributable to Ailsworth and his role in the offense, the defendant received a primary term of incarceration of 30 years.

Ailsworth's conviction became final on October 5, 1998, the day the Supreme Court denied his petition for certiorari. Ailsworth filed his motion for relief pursuant to 28 U.S.C. § 2255 within one year of the Supreme Court's denial of his petition for certiorari. Ailsworth is represented by counsel in these § 2255 proceedings.

The defendant's initial brief in support of his motion (Dk.872) contained the following arguments: (1) the sentence was illegal because the defendant was never served with the information required by 21 U.S.C. § 851; (2) the presentence investigation report ("PSR") recommended a base offense level that exceeded the sentencing guidelines; (3) the sentencing court imposed a four-point role adjustment for being a leader without making specific findings by a preponderance of evidence; and (4) defense counsel was ineffective in not requesting the trial court to inquire about the jury's notation on the verdict form. The government filed its answer denying the factual assertions and opposing the legal arguments. (Dk.874). The defendant filed a reply brief adding the argument that the sentencing court had not made a conclusive finding that the controlled substance was cocaine base. (Dk.879). Four months later, the defendant filed a supplemental brief adding arguments based on the intervening Supreme Court decision of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). (Dk.884). The government also filed a response to the defendant's supplement. (Dk.885).

GENERAL § 2255 STANDARDS

"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (citation omitted). When a petitioner "fails to raise an issue on direct appeal, he is barred from raising the issue in a § 2255 proceeding, unless he establishes either cause excusing the procedural default and prejudice resulting from the error, or a fundamental miscarriage of justice if the claim is not considered." United States v. Cox, 83 F.3d 336, 341 (10th Cir.1996); see also United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (citation omitted). Put another way, "[a]n attorney's error provides cause to excuse a procedural default only if the error

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amounts to constitutionally ineffective assistance of counsel." Rogers v. United States, 91 F.3d 1388, 1391 (10th Cir.1996) (citations omitted), cert. denied, 519 U.S. 1134, 117 S.Ct. 1000, 136 L.Ed.2d 879 (1997). A colorable claim of factual innocence may be sufficient to establish a fundamental miscarriage of justice. Moreover, a claim that an indictment "fails to show jurisdiction in the court or to charge an offense ... shall be noticed by the court at any time during the pendency of the proceedings." Fed.R.Crim.P. 12(b)(2). Such a claim may be raised for the first time in a § 2255 proceeding. Marteney v. United States, 216 F.2d 760, 762 (10th Cir.1954); see also United States v. Welch, 849 F.Supp. 5, 7 (D.Me.1994).

To establish a claim for ineffective assistance of counsel, a defendant must show (1) that his counsel's performance fell below the constitutional minimum guaranteed by the Sixth Amendment, that is, "an objective standard of reasonableness," and (2) that his counsel's errors prejudiced him, that is, "were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Strickland v. Washington, 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. The Supreme Court recognizes that:

There is a strong presumption that counsel's performance falls within the wide range of professional assistance, (citation omitted); the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. (citation omitted). The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. (citation omitted).

Kimmelman v. Morrison, 477 U.S. 365, 381, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). A court can jump to the prejudice prong without first determining whether counsel's performance was deficient:

[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.

Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

"Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," the district court must conduct an evidentiary hearing. 28 U.S.C. § 2255; see United States v. Lopez, 100 F.3d 113, 119 (10th Cir.1996) (quotations omitted). When disputed material facts are put in issue by affidavits, an evidentiary hearing is necessary to resolve them. See Machibroda v. United States, 368 U.S. 487, 494-95, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) (hearing necessary to resolve factual disputes which "related primarily to purported occurrences outside the courtroom and upon which the record could, therefore, cast no real light"); Moore v. United States, 950 F.2d 656, 661 (10th Cir.1991) (hearing necessary when "factual disputes and inconsistencies beyond the record exist").

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ANALYSIS

Failure to Serve Information under 21 U.S.C. § 851(a)(1)

This statute provides in relevant part:

No person who stands convicted of an offense under this part shall be sentenced to increased punishment by reason of one or more prior convictions, unless before trial, or before entry of a plea of guilty, the United States attorney files an information with the court (and serves a copy of such information on the person or counsel for the person) stating in writing the previous convictions to be relied upon.

21 U.S.C. § 851(a)(1). As the record reflects, the government filed the information under seal on the same afternoon as the sealed superseding indictment, and the superseding indictment was unsealed the next day on March 25, 1994. (Dks. 3, 5, and 10). The information appears in the record as not sealed and is accompanied by a certificate of service that states it was hand delivered to defense counsel, Charles Dedmon, on March 24, 1994. (Dk.5, p. 2). The defendant, however, attaches to his reply brief the affidavits of his former counsel, Mr. Dedmon and Mr. Johnson, and they aver that they did not receive a copy of the government's information filed under seal.

The only part of the defendant's sentence¹ affected by a prior conviction that would trigger the § 851 notice requirement was the term of supervised release. The court enhanced the defendant's term of supervised release from five years to ten years as a result of the defendant's prior conviction. 21 U.S.C. § 841(b)(1)(A) (1995). The defendant's term of incarceration was not enhanced by reason of a prior conviction, because the enhanced statutory minimum and maximum did not affect the guideline sentence that was imposed.

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