U.S. v. Boyd, No. CV.02-2687-D/A.

• Court: United States District Courts. 6th Circuit. Western District of Tennessee
• Writing for the Court: Donald
• Citation: 259 F.Supp.2d 699
• Parties: UNITED STATES of America, Plaintiff, v. Desi Arnez BOYD, Defendant.
• Docket Number: No. CV.02-2687-D/A.,No. CR.01-20182-D.
• Decision Date: 28 March 2003

259 F.Supp.2d 699 UNITED STATES of America, Plaintiff,
v.
Desi Arnez BOYD, Defendant. No. CV.02-2687-D/A. No. CR.01-20182-D. United States District Court, W.D. Tennessee, Western Division. March 28, 2003.

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Desi Arnez Boyd, F.C.I Memphis, Memphis, TN, Pro Se.

ORDER GRANTING MOTION TO PROCEED IN FORMA PAUPERIS ORDER GRANTING MOTION TO AMEND ORDER DENYING MOTION UNDER 28 U.S.C. § 2255 ORDER DENYING CERTIFICATE OF APPEALABILITY AND ORDER CERTIFYING APPEAL NOT TAKEN IN GOOD FAITH

DONALD, District Judge.

On August 29, 2002, defendant, Desi Arnez Boyd, Bureau of Prisons registration number 17967-076, an inmate at the Federal Correctional Institution (FCI) at Memphis, Tennessee, has filed a motion under 28 U.S.C. § 2255, seeking to set aside the sentence imposed for his violation of 21 U.S.C. § 843(b). Boyd also filed

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an application to proceed in forma pauperis and exhibits in support of his motion. Defendant's motion to proceed in forma pauperis is GRANTED. On January 24, 2003, defendant filed a second motion challenging his sentence in this criminal case. The motion raised a single additional issue and the Court directed the Clerk to file the second motion as a motion to amend. On February 10, 2003, defendant filed his brief in support of the motion to amend. The motion to amend is GRANTED.

I. PROCEDURAL HISTORY

On September 13, 2001, a grand jury returned a sixty-four count superseding indictment against defendant Boyd and nine co-defendants. Boyd was named in Counts 1, 60, and 62 of the superseding indictment. Count one charged defendant with conspiracy to possess with the intent to distribute and to distribute in excess of 500 kilograms of cocaine, and in excess of fifty kilograms of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and § 846. Count sixty charged defendant with using a communication facility to facilitate a conspiracy to distribute cocaine and cocaine base, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2. Count sixty-two charged defendant with using a communication facility to facilitate a conspiracy to distribute cocaine, in violation of 21 U.S.C. § 843(b) and 18 U.S.C. § 2.

On October 17, 2001, defendant pled guilty to count sixty of the indictment pursuant to a plea agreement which provided that the Government agreed to dismiss the remaining two counts of the indictment. On January 28, 2002, the Court conducted a sentencing hearing and entered a judgment of conviction imposing a sentence of forty-eight months imprisonment, plus a three year period of supervised release. Defendant did not appeal.

Defendant now claims that his sentence should be set aside. Defendant contends:

1. Counsel was ineffective by:

A. failing to file a motion for a downward departure pursuant to 18 U.S.C. § 3553 and United States Sentencing Guidelines § 5K2 and 5K2.13; and

B. failing to object to the calculation of his base offense level at 38;

2. The trial court erred:

A. by adopting the base offense level as calculated in the pre-sentence report (PSR); and

B. by adopting the criminal history points and resulting criminal history category as calculated in the PSR; and

3. The trial court was without jurisdiction to impose his sentence based upon the failure of the indictment to state an offense.

II. ANALYSIS

Boyd does not challenge the validity of his guilty plea. Insofar as he challenges the validity of his sentence, his claims are devoid of merit. Boyd was sentenced on a single count of conviction pursuant to U.S.S.G. § 5G1.1. The statutorily authorized maximum sentence was less than the minimum of the applicable guideline range. Boyd contends his guideline range was improperly calculated. Boyd alleges that without the errors, his applicable guideline range would not have exceeded the statutory maximum sentence and he could have received a lesser sentence. Defendant's sentencing claims should have been raised on direct appeal.

A § 2255 motion can never be utilized as a substitute for an appeal. Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947); United States v. Walsh, 733 F.2d 31, 35 (6th Cir.1984). Failure to raise a claim on direct appeal constitutes a procedural default that bars

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presentation of the claim in a § 2255 motion.

Given society's substantial interest in the finality of judgments, only the most serious defects in the trial process will merit relief outside of the normal appellate system. Hence, when a federal statute, but not the Constitution, is the basis for postconviction attack, collateral relief from a defaulted claim of error is appropriate only where there has been fundamental unfairness, or what amounts to a breakdown of the trial process.

Grant v. United States, 72 F.3d 503, 506 (6th Cir.1996)(citing Reed v. Farley, 512 U.S. 339, 354, 114 S.Ct. 2291, 129 L.Ed.2d 277 (1994)). Even claims of constitutional error that could have been raised on appeal are waived unless the defendant demonstrates cause and prejudice for that failure. United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982). Here, defendant cannot demonstrate cause and prejudice, nor are his claims of constitutional dimension.

Defendant failed to allege that the procedural default of issues 2B and 3 resulted from his attorney's ineffective assistance. However, as defendant must demonstrate cause and prejudice for this default, the Court will consider all claims presented in the motion as claims of ineffective assistance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), establishes the standard for an ineffective assistance claim. A petitioner must show:

1. deficient performance by counsel; and

2. prejudice to the defendant from the deficient performance.

Id. at 687, 104 S.Ct. 2052. To demonstrate prejudice, a movant under § 2255 must establish "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. To demonstrate prejudice in the course of a conviction entered on a guilty plea, a movant 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." Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Additionally, however, in analyzing prejudice,

the right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.

Lockhart v. Fretwell, 506 U.S. 364, 368, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (citing United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984)). "Thus an analysis focusing solely on mere outcome determination, without attention to whether the result of the proceeding was fundamentally unfair or unreliable, is defective." Lockhart v. Fretwell, 506 U.S. at 369, 113 S.Ct. 838. In the context of sentencing, the Court looks to whether the result of the sentencing proceeding was unfair or unreliable. Id. at 371, 113 S.Ct. 838.

A prisoner attacking his conviction bears the burden of establishing that he suffered some prejudice from his attorney's ineffectiveness. Lewis v. Alexander, 11 F.3d 1349, 1352 (6th Cir.1993); Isabel v. United States, 980 F.2d 60, 64 (1st Cir. 1992). "[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant." Strickland 466 U.S. at 697, 104 S.Ct. 2052. In evaluating an ineffective assistance claim, the Court

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should not second guess trial counsel's tactical decisions. Adams v. Jago, 703 F.2d 978, 981 (6th Cir.1983). An ineffective assistance claim based on counsel's failure to raise a particular defense requires as a threshold matter a showing that the defense is meritorious. Kimmelman v. Morrison, 477 U.S. 365, 382, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986). If a reviewing court can determine lack of prejudice, it need not determine whether, in fact, counsel's performance was deficient. Id. at 697, 104 S.Ct. 2052. See also United States v. Haddock, 12 F.3d 950, 955 (10th Cir.1993).

Boyd alleges in issue 1A that counsel was ineffective for failing to pursue a downward departure. The flaw in defendant's argument as to his departure claim is that there is no right to a downward departure. The Court's decision to grant that request is not only purely discretionary, but specifically insulated by statute from judicial review. See, e.g., United States v. Bellinger, 986 F.2d 1042, 1044 (6th Cir.1993); United States v. Davis, 919 F.2d 1181, 1187 (6th Cir.1990).

Errors that are not cognizable on direct appeal and that are not of constitutional dimension are generally not cognizable on a motion to vacate. Cf. Durrive v. United States, 4 F.3d 548 (7th Cir.1993) (discussion of sentencing errors that may be challenged on direct, but not collateral, review); Scott v. United States, 997 F.2d 340, 342-43 (7th Cir.1993)(same). As the Court noted in Scott, 997 F.2d at 342-43: "Only extraordinary circumstances—for example, a district court's refusal to implement a provision of the Guidelines designed for the defendant's benefit, coupled with `cause' for not taking a direct appeal— even call for inquiry [under § 2255]."

In order to satisfy the prejudice prong of an ineffective assistance of counsel claim based upon a Guidelines issue, the petitioner must show that the lawyer's failure to pursue the issue actually affected the sentence. Durrive, 4 F.3d at 551. Here, "even if counsel's performance were deficient, [the defendant] has not established...