U.S. v. Craycraft
| Decision Date | 03 February 1999 |
| Docket Number | No. 97-3473,97-3473 |
| Citation | 167 F.3d 451 |
| Parties | UNITED STATES of America, Appellee, v. Michael Lloyd CRAYCRAFT, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Debra L. Scorpiniti, Asst. U.S. Atty., Des Moines, IA, argued, for Appellee.
Frank Burnette, Des Moines, IA, argued, for Appellant.
Before BEAM and LOKEN, Circuit Judges, and BOGUE, 1 District Judge.
Michael Lloyd Craycraft, who pleaded guilty to conspiring to distribute methamphetamine, appeals from the dismissal of his motion to vacate, set aside, or correct his sentence and from the rejection of various ineffective assistance of counsel arguments. We affirm.
On August 31, 1993, Craycraft, pursuant to a plea agreement, pleaded guilty to conspiring to distribute methamphetamine. 21 U.S.C. § 846. He faced a mandatory term of 10 years imprisonment, but the plea agreement spoke to the possibility of a sentence reduction if Craycraft substantially assisted the Government in its prosecution of other defendants. See 18 U.S.C. § 3553(e); U.S.S.G. § 5K1.1. The Government, however, failed to file a motion for a reduction in Craycraft's sentence for substantial assistance. Instead, the Government gave notice of its intent to seek an enhancement of Craycraft's sentence because of a prior state court felony drug conviction. See 21 U.S.C. § 851(a)(1). When the United States District Court for the Southern District of Iowa 2 passed sentence, Craycraft received the minimum term of 20 years confinement as a result of this prior conviction. See 21 U.S.C. § 841(b).
Although Craycraft claims that he instructed his attorney to file an appeal, no notice of appeal was filed by his counsel. On November 26, 1993, Craycraft filed a handwritten pro se notice of appeal, which was dismissed by this Court as not timely filed. Precisely one year after his sentencing, Craycraft's trial counsel moved to reduce Craycraft's sentence for substantial assistance. The motion was resisted by the Government and after a telephone hearing, the requested relief was denied, the District Court noting the absence of evidence of an unconstitutional motive or bad faith on the Government's part.
Several years passed, then, on April 18, 1997, Craycraft filed a pro se petition for relief under 28 U.S.C. § 2255, accompanied by supporting exhibits. Shortly thereafter, all the while acting pro se, he made two amendments to his claim. The District Court directed the Government to respond and briefs were filed. After a telephone hearing conference, the Court denied relief and later denied Craycraft's motion for reconsideration as well. Craycraft then proceeded to file a pro se notice of appeal which this Court treated as an application for appealability, granted it, and appointed counsel to represent Craycraft on appeal.
Craycraft raises several issues before this Court. For purposes of clarity, they can be grouped broadly into two categories, the first dealing with the lawfulness of his sentence enhancement, and the second dealing with the adequacy of his representation by counsel at various stages in the proceedings. A third issue raised by Craycraft cannot be adjudicated by this Court, and so we decline to address its merits as explained below.
Craycraft first raises an issue of statutory construction which was resolved by this Court in United States v. Trevino-Rodriguez, 994 F.2d 533 (8th Cir.1993). Section 851 details the proceedings to establish that a defendant has been previously convicted of a crime when that conviction is used to enhance a federal sentence. 21 U.S.C. § 851. The statute requires that prior to the entry of a plea, the government file an information with the court which identifies the previous conviction or convictions to be relied upon. 21 U.S.C. § 851(a)(1). In the next subsection, the statute states that no such information may be filed when the proposed enhancement exceeds three years "unless the person either waived or was afforded prosecution by indictment for the offense for which such increased punishment may be imposed." 21 U.S.C. § 851(a)(2).
Craycraft's prior state conviction was tried by information. He claims that because his enhancement exceeded three years, section 851(a)(2) precluded the District Court from relying on his prior conviction since it was not prosecuted by an indictment by a grand jury, and Craycraft did not waive an indictment. He acknowledges, as he must, that this Court has held that the "offense for which such increased punishment may be imposed" is the instant federal offense being prosecuted rather than the prior conviction used for enhancement purposes. Trevino-Rodriguez, 994 F.2d at 536, citing United States v. Espinosa, 827 F.2d 604, 617 (9th Cir.1987), cert. denied, 485 U.S. 968, 108 S.Ct. 1243, 99 L.Ed.2d 441 (1988); United States v. Adams, 914 F.2d 1404, 1407 (10th Cir.1990), cert. denied, 498 U.S. 1015, 111 S.Ct. 588, 112 L.Ed.2d 593 (1990); United States v. Burrell, 963 F.2d 976, 992 (7th Cir.1992), cert. denied, 506 U.S. 928, 113 S.Ct. 357, 121 L.Ed.2d 270 (1992); accord, United States v. Harden, 37 F.3d 595, 600 (11th Cir.1994). In fact, at oral arguments, Craycraft conceded the issue in light of the Second Circuit's recent reversal of Collado, the only case going against this weight of authority. United States v. Collado, 106 F.3d 1097, 1103 (2nd Cir.1997), overruled by United States v. Ortiz, 143 F.3d 728, 731 (2nd Cir.1998). Thus, because the instant offense was prosecuted by indictment, the District Court's enhancement of Craycraft's sentence was proper.
In his section 2255 motion before the District Court, Craycraft raised shortcomings of his trial counsel which, he argued, amounted to ineffective assistance of counsel in violation of the Sixth Amendment. The District Court denied his motion, and we review this determination de novo. See United States v. Deaton, 13 F.3d 270, 271 (8th Cir.1993). The District Court will be affirmed if the record conclusively shows that Craycraft is not entitled to relief. Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir.1992).
The Sixth Amendment provides that "in all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. When a convicted criminal defendant makes an ineffective assistance of counsel claim, he or she is ordinarily required to make a two-part showing of both deficiency and prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). First, the defendant must show that counsel's performance was deficient; that errors were committed which were "so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. To satisfy this requirement, the defendant must demonstrate that counsel's performance "fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. at 2064. Second, the defendant must establish actual prejudice resulting from the deficient performance. That is, the defendant must demonstrate "a reasonable probability that, but for counsel's errors," the result would have been different. Id. at 694, 104 S.Ct. at 2068. Strickland instructs that in the absence of showings of both ineffective performance and resulting prejudice, the District Court's dismissal of his claims must be affirmed.
Craycraft asserts, for the first time on appeal, that he was deprived of effective representation when the District Court required him to proceed without counsel in his § 2255 motion. Even if Craycraft's claim had been raised at the trial court level, there is no general right to counsel in post-conviction habeas proceedings for criminal defendants. See Pollard v. Delo, 28 F.3d 887, 888 (8th Cir.1994), cert. denied, 513 U.S. 1003, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994), citing McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 1471, 113 L.Ed.2d 517 (1991). Therefore, we find this argument to be without merit.
Craycraft's first asserted ground for relief raised before and dismissed by the District Court concerning his trial counsel's alleged shortcomings relates to his counsel's failure to challenge the isomeric structure of the methamphetamine involved in this case. See U.S.S.G. § 2D1.1. Craycraft alleges that his attorney's failure to object to the classification of the drug constituted ineffective assistance of counsel. In order to prevail under Strickland, Craycraft must establish both defective performance and prejudice, yet he merely speculates about the true isomeric structure of the drugs. Without some evidence that the drugs involved actually were l-methamphetamine, he cannot successfully characterize the failure to object to the composition of the drugs as either ineffectual or prejudicial. Moreover, any distinction between l-methamphetamine and d-methamphetamine was irrelevant under a statute imposing a mandatory twenty year mandatory minimum.
Next, Craycraft contends that his trial counsel was ineffective in not pursuing a downward departure for substantial assistance. A motion for downward departure may be made by the government, but not by the defendant. Courts are without statutory authority to grant downward departures for substantial assistance absent a government motion. United States v. Kelly, 18 F.3d 612, 617 (8th Cir.1994). Only limited exceptions to this general rule apply, such as where "a defendant shows that the government's refusal to make the motion was based on an unconstitutional motive, that the refusal was irrational, or that the motion was withheld in bad faith." Id. at 617-18; United States v. Romsey, 975 F.2d 556, 557-58 (8th Cir.1992).
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