U.S. v. Tate

• Citation: 523 F.Supp.2d 165
• Decision Date: 07 December 2007
• Docket Number: No. 3:01CR98(SRU).,3:01CR98(SRU).
• Court: U.S. District Court — District of Connecticut
• Parties: UNITED STATES of America v. Michael TATE.

523 F.Supp.2d 165

UNITED STATES of America v. Michael TATE.

No. 3:01CR98(SRU).

United States District Court, D. Connecticut.

December 7, 2007.

COPYRIGHT MATERIAL OMITTED

John H. Durham, U.S. Attorney's Office, New Haven, CT, for United States of America.

RULING ON DEFENDANT'S PETITION UNDER 28 U.S.C. § 2255 AND DEFENDANT'S MOTION UNDER FED. R. CIV. P. 60(B)

STEFAN R. UNDERHILL, District Judge.

On July 12, 2001, Michael Tate pled guilty to one count of knowingly and intentionally possessing with the intent to distribute, and distributing, a mixture and substance that contained a detectable amount of cocaine base, a Schedule II controlled substance, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). At Tate's change of plea hearing he affirmed that he understood the nature of the charges against him, that he received a copy of his indictment and discussed it with his lawyer, and that he understood the maximum penalties that could be imposed if he pled guilty. (Gov't Ex. 4 at 7-8.) Tate declared that he knew he was giving up his right to a jury trial, and all associated ancillary rights. (Gov't Ex. 4 at 9-11, 13.) Tate said that he understood his written plea agreement and that he agreed with the factual allegations contained therein. (Gov't Ex. 4 at 17.) Tate affirmed that he possessed "cocaine base or crack cocaine," and that he sold it to other individuals. (Gov't Ex. 4 at 24.)

On January 31, 2002, I sentenced Tate to 90 months' imprisonment, to be followed by a three-year term of supervised release, as well as a statutorily mandatory $100 special assessment. (Gov't Ex. 6.) Tate, through his counsel, argued that he should not be sentenced as a career offender, because he had not previously been imprisoned for any extensive period of time. (Gov't Ex. 5 at 13-16.) Tate's counsel also argued for a downward departure due to childhood psychological abuse. (Gov't Ex. 5 at 17.) Tate's psychiatric evaluation, however, did not show that he suffered from any diagnosable psychological infirmity. (Gov't Ex. 5 at 19.) I declined to downwardly depart on the ground of past psychological abuse. (Gov't Ex. 5 at 52.) I did depart from the Guideline range called for as a result of Tate's classification as a career offender. (Gov't Ex. 5 at 53.)

At the sentencing hearing, Tate also argued that he had sold only freebase, not crack cocaine. (Gov't Ex. 5 at 36.) When I asked if he was denying his guilt, Tate asserted that he was not, but that he wanted to raise the issue so that it would be preserved for an appeal. (Gov't Ex. 5 at 38.)

Tate filed a timely notice of appeal on February 4, 2002. (Gov't Ex. 7.) On February 10, 2003 the Court of Appeals issued a Summary Order affirming Tate's conviction and sentence. (Gov't Ex. 9.) On March 25, 2003, Tate filed a motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. On March 25, 2003, Tate also filed a motion seeking relief from prior judgment under Fed. R.Civ.P. 60(b). For reasons that follow, both motions are denied.

To obtain relief under 28 U.S.C. § 2255, Tate must demonstrate that his sentence "was imposed in violation of the Constitution or laws of the United States." 28 U.S.C. § 2255. Tate's motion raises seven questions of law: (1) Can a criminal defendant challenge his sentence in the sentencing court under Fed.R.Civ.P. 60(b)? (2) Was Tate convicted under an unconstitutional law? (3) Did this court lack subject matter jurisdiction over Tate's indictment? (4) Did defense counsel render ineffective assistance prior to Tate's guilty plea by failing to perform an adequate factual investigation? (5) Did Tate understand the charges against him when he pled guilty? (6) Was Tate deprived of his right to jury trial? (7) Was Tate's sentence improper?

I. Applicability of Fed.R.Civ.P. 60(b)

Rule 60(b) of the Federal Rules of Civil Procedure allows a party to seek relief from a final judgment in a civil case. Here, Tate is trying to use Rule 60(b) to reopen his criminal conviction. Tate also challenges his underlying criminal conviction with a section 2255 petition. Because Rule 60(b) provides relief from civil judgments, and. Tate now seeks relief from his criminal conviction and sentence, a Rule 60(b) motion cannot provide the relief that he seeks.

Instead, the Federal Rules of Criminal Procedure apply to Tate's criminal conviction. Rule 33 of the Federal Rules of Criminal Procedure allows a defendant to move for a new trial, but unless that motion is based on new evidence, it must be made within seven days of the finding of guilt. Tate does not argue that any new evidence makes his conviction unjust, and his motion was not made within seven days of the finding of guilt. Therefore, a Rule 33 motion would be inappropriate at this time as well. See, e.g., United States v. Consiglio, 391 F.Supp. 564, 568 (D.Conn.1975).

Because Tate is a pro se litigant, I will construe his pleadings liberally and consider the strongest arguments that they raise. See Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Bertin v. United States, 478 F.3d 489, 491-92 (2d Cir.2007). Tate makes arguments within the context of his Rule 60(b) motion that support his petition under 28 U.S.C. § 2255. Therefore, although Tate's Rule 60(b) motion is procedurally improper, I will consider the substantive arguments he makes in that motion insofar as they relate to his section 2255 petition.

II. Constitutionality of Title 21 of the United States Code

Tate's argument that he was convicted under an unconstitutional law is unfounded. The Second Circuit has held that Congress properly exercised its Commerce Clause power when it outlawed possession and distribution of controlled substances under 21 U.S.C. § 841(a)(1). United States v. Walker, 142 F.3d 103, 111 (2d Cir.1998).

III. Subject Matter Jurisdiction

Tate argues that I lacked subject matter jurisdiction, and that a state court should have properly heard his case. Tate, however, confuses the United States' territorial jurisdiction with its subject matter jurisdiction. Although it is true that Congress generally can only legislate within certain territories enumerated in the Constitution, the Constitution also gives Congress power to legislate throughout the United States by exercising its enumerated powers. One such power is the Commerce Clause, pursuant to which Congress passed 21 U.S.C. § 841.

Under 18 U.S.C. § 3231, the federal courts enjoy jurisdiction over "all offenses against the laws of the United States." As discussed in Part II of this opinion, Congress properly exercised its Commerce Clause power when it enacted 21 U.S.C. § 841. Because 21 U.S.C. § 841 is a "law of the United States" for the purposes of 18 U.S.C. § 3231, this court properly exercised jurisdiction over Tate's criminal proceeding.

IV. Ineffective Assistance of Counsel

The Constitution affords a right to effective assistance of counsel in criminal cases. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "In order to prevail on an ineffective-assistance-of-counsel claim, a defendant must show (1) that his attorney's performance fell below an objective standard of reasonableness, and (2) that as a result he suffered prejudice. Both prongs of the test must be met." United States v. Jones, 455 F.3d 134, 151 (2d Cir.2006). In addressing the adequacy of representation, courts "must indulge a strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

A section 2255 motion does not automatically entitle a petitioner to a hearing; instead, the district court can exercise its discretion and common sense in determining whether a hearing is necessary. Newfield v. United States, 565 F.2d 203, 207 (2d Cir.1977). When the "motion and the files and records of the case conclusively show that the prisoner is entitled to no relief," a hearing need not be held. 28 U.S.C. § 2255; see Williams v. United States, 503 F.2d 995, 998 (2d Cir.1974). "The petitioner must be responsible for setting forth specific facts which he or she is in a position to establish by competent evidence." Newfield, 565 F.2d at 207.

Tate argues that his counsel was ineffective for the following reasons: (1) counsel failed to file any pre-trial motions that would adequately subject the government's case to the adversarial process, (2) counsel failed to conduct an independent investigation of the facts, (3) counsel failed to argue that his sentencing did not comport with Rule 11 of the Federal Rules of Criminal Procedure.

Tate's blanket assertion that counsel was ineffective for failing to file pre-trial motions does not adequately demonstrate that counsel acted unreasonably. Tate has not stated which pre-trial motions he would have liked his attorney to file. Because Tate voluntarily pled guilty, it is not evident that any pre-trial motions, if filed, would have changed the outcome of his case. Considering the evidence that the government was ready to present against Tate, as detailed at his change of plea hearing (see Gov't Ex. 4 at 22-24), I cannot conclude that his counsel made an unreasonable decision not to file pre-trial motions. Tate's guilty plea resulted in a sentence far below the statutory maximum, and his acceptance of responsibility resulted in a lower sentence under the sentencing guidelines.

Tate's argument that his counsel failed to conduct an independent investigation of the facts also fails. First, Tate argues that his counsel could have discovered that he was being prosecuted under an unconstitutional law. Because 21 U.S.C. § 841 is constitutional, that argument fails. In any event, the law's constitutionality is a legal, not a factual, question. If Tate's counsel had investigated the' facts of his case in a different manner, Tate's conduct and the facts of his case would still have constituted a violation of the law,...