U.S.A v. Baker, CRIMINAL ACTION No. 06-20056-03-KHV
| Decision Date | 14 January 2011 |
| Docket Number | CRIMINAL ACTION No. 06-20056-03-KHV,CIVIL ACTION No. 10-2184-KHV |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. TONI BAKER, Defendant. |
| Court | U.S. District Court — District of Kansas |
This matter is before the Court on defendant's Motion Under 28 U.S.C. § 2255 To Vacate, Set Aside Or Correct Sentence By A Person In Federal Prison (Doc. #744) filed April 8, 2010. For reasons stated below, the Court overrules defendant's motion.
On March 31, 2006, a grand jury returned a 36-count indictment which charged Toni Baker and 13 co-defendants. In particular, the indictment charged defendant with (1) conspiracy to distribute and possess with intent to distribute 50 grams or more of a mixture or substance containing cocaine base (crack), five kilograms or more of a mixture or substance containing cocaine and 100 kilograms or more of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846; (2) three counts of using a telephone to facilitate a drug trafficking offense, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2; and (3) money laundering, in violation of 18 U.S.C. §§ 1956(a)(1)(A)(I), (a)(1)(B)(I) and 2. On October 23, 2007, pursuant to a plea agreement, defendant pled guilty to money laundering in violation of18 U.S.C. § 1956. See Petition To Enter Plea Of Guilty And Order Entering Plea (Doc. #328). Defendant's total offense level was 40, with a criminal history category IV, resulting in a guideline range of 360 months to life in prison. See Presentence Investigation Report ("PSIR") dated Mar. 24, 2009 ¶¶ 174-75. Even so, defendant's sentence was capped by the statutory maximum of 240 months in prison for the offense of money laundering. See id. At the original sentencing hearing on March 31, 2009, defendant objected to her criminal history category, the calculation of drug quantity and a firearm enhancement.1 In particular, defendant claimed that the offense level in the PSIR was based in part on statements to agents after she had agreed to cooperate and after agents had promised that the statements would not be used against her. Defendant conceded, however, that even if the Court sustained all of her objections, she faced a minimum guideline range starting at 135 months which was greater than the 96-month sentence which the government intended to propose in its Section 5K1.1 motion. See Testimony Of Defendant On March 31, 2009.
The Court continued sentencing to April 7, 2009. At the beginning of the hearing that day, the parties announced that they had agreed that defendant would withdraw her objections and the government would file a Section 5K1.1 motion and request a sentence of 96 months. After reviewing the relevant factors, the Court sentenced defendant to 96 months in prison. See Judgment In A Criminal Case (Doc. #648) filed April 9, 2009. Defendant did not appeal. Carl Cornwell represented defendant throughout this proceeding.2
On April 8, 2010, defendant filed a pro se motion to vacate her sentence under 28 U.S.C. § 2255. Liberally construed, defendant's motion alleges that Cornwell was ineffective because (1) he did not present or investigate any potential defenses, (2) he did not appeal or advise defendantof the time limits for appeal, (3) he induced defendant to plead guilty by stating that defendant could be subject to a sentence ten times greater than the sentence actually allowed for the charged offense and (4) he suggested a waiver of appeal as part of the plea agreement even though defendant did not agree to that part of the plea agreement.
Liberally construing defendant's amendment to her Section 2255 motion, see Memorandum Of Law To Support Motion Under 2255 Filed April 8, 2010 (Doc. #759), defendant seeks to add two additional claims: (5) her base offense level erroneously included a firearm enhancement and (6) the quantity of narcotics used to calculate her base offense level was based on her statements to government agents after she had agreed to cooperate and after the agents had assured her that the statements could not be used against her.
Rule 15, Fed. R. Civ. P., governs a motion to amend a Section 2255 petition if it is made before the one-year limitation period for filing a Section 2255 petition has expired. United States v. Ohiri, 133 Fed. Appx. 555, 559 (10th Cir. 2005). Here, defendant filed her amendment after the one-year deadline.3 An untimely amendment to a Section 2255 motion which clarifies or amplifies a claim or theory in the original motion by way of additional facts may, in the district court'sdiscretion, relate back to the date of the original motion if the original motion was timely filed and the proposed amendment does not seek to add a new claim or to insert a new theory into the case. United States v. Espinoza-Saenz, 235 F.3d 501, 505 (10th Cir. 2000).
Here, the Court denies defendant leave to amend because she seeks to insert new theories which are not raised in her original motion. See id. ().4 The Court also denies leave to amend because the proposed amendment is futile-both proposed claims are procedurally barred and they lack substantive merit.
The standard of review of Section 2255 petitions is quite stringent. The Court presumes that the proceedings which led to defendant's conviction were correct. See Klein v. United States, 880 F.2d 250, 253 (10th Cir. 1989). To prevail, defendant must show a defect in the proceedings which resulted in a "complete miscarriage of justice." Davis v. United States, 417 U.S. 333, 346 (1974). A. Procedural Bar-Waiver Of Collateral Challenges (Claims 1, 2, 5 and 6)
The government asserts that defendant's claims are barred by the waiver of collateral challenges in the plea agreement.5 See Government's Response To Defendant's Motion Pursuant To 28 U.S.C. § 2255 (Doc. #770) filed August 25, 2010 at 3-6. A knowing and voluntary waiver of the statutory right to appeal or to collaterally attack a sentence is generally enforceable. United States v. Chavez-Salais, 337 F.3d 1170, 1172 (10th Cir. 2003); United States v. Cockerham, 237 F.3d 1179, 1181 (10th Cir. 2001), cert. denied, 534 U.S. 1085 (2002); United States v. Hernandez, 134 F.3d 1435, 1437 (10th Cir. 1998). The Court applies a three-pronged analysis to evaluate the enforceability of such a waiver: (1) whether the disputed issue falls within the scope of the waiver; (2) whether defendant knowingly and voluntarily waived his rights; and (3) whether enforcing the waiver would result in a miscarriage of justice. United States v. Hahn, 359 F.3d 1315, 1325 (10th Cir. 2004) (en banc); see United States v. McMillon, No. 02-20062-01-JWL, 2004 WL 2660641, at *3 (D. Kan. Nov. 19, 2004).
To determine whether the disputed issue falls within the scope of the waiver, the Court begins with the plain language of the plea agreement. United States v. Anderson, 374 F.3d 955, 957 (10th Cir. 2004); Hahn, 359 F.3d at 1328. The Court construes the plea agreement according to contract principles and based on what defendant reasonably understood when she entered the plea. United States v. Arevalo-Jimenez, 372 F.3d 1204, 1206 (10th Cir. 2004). The Court strictly construes the waiver and resolves any ambiguities against the government and in favor of defendant. Hahn, 359 F.3d at 1343.
The plea agreement states in relevant part as follows:
13. Waiver of Appeal and Collateral Attack. Defendant knowingly and voluntarily waives any right to appeal or collaterally attack any matter in connection with this prosecution, conviction and sentence. The defendant is aware that Title 18, U.S.C. § 3742 affords a defendant the right to appeal the conviction and sentence imposed. By entering into this agreement, the defendant knowingly waives any right to appeal a sentence imposed which is within the guideline range determined appropriate by the court. The defendant also waives any right to challenge a sentence or otherwise attempt to modify or change h[er] sentence or manner in which it was determined in any collateral attack, including, but not limited to, a motion brought under Title 28, U.S.C. § 2255 [], a motion brought under Title 18 U.S.C. § 3582(c)(2) and a motion under Fed. Rule Civ. Pro 60(b). In other words, the defendant waives the right to appeal the sentence imposed in this case except to the extent, if any, the court departs upwards from the applicable sentencing guideline range determined by the court. However, if the United States exercises its right to appeal the sentence imposed as authorized by Title 18, U.S.C. § 3742(b), the defendant is released from this waiver and may appeal the sentence as authorized by Title 18, U.S.C. § 3742(a).
Plea Agreement ¶ 13. The scope of this waiver unambiguously includes the right to collaterally attack by a Section 2255 motion any matter in connection with defendant's prosecution, conviction or sentence. In Cockerham, the Tenth Circuit noted that "a plea agreement waiver of postconvictionrights does not waive the right to bring a § 2255 petition based on ineffective assistance of counsel claims challenging the validity of the plea or the waiver, " but that "collateral attacks based on ineffective assistance of counsel claims that are characterized as falling outside that category are waivable." 237 F.3d at 1187. In this case, defendant's first, second, fifth and sixth claims (counsel's failure to present or investigate defenses, counsel's failure to appeal or advise defendant of the time limits for appeal, application of the firearm enhancement and calculation of drug quantity) do not challenge the validity of the plea or waiver.6 Accordingly, those claims fall within the scope of...
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