U.S. v. Watson

• Decision Date: 27 September 1996
• Docket Number: No. 89-20028-EEO.,No. 96-3238-EEO.,89-20028-EEO.,96-3238-EEO.
• Parties: UNITED STATES of America, v. Edward D. WATSON, Movant.
• Court: U.S. District Court — District of Kansas

942 F.Supp. 1378

UNITED STATES of America, v. Edward D. WATSON, Movant.

No. 89-20028-EEO.

No. 96-3238-EEO.

United States District Court, D. Kansas.

September 27, 1996.

Carl E. Cornwell, Cornwell & Edmonds, Overland Park, KS, for Edward D. Watson.

Jackie N. Williams, United States Attorney, Robin D. Fowler, Assistant U.S. Attorney, Kansas City, KS, Government Counsel.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, District Judge.

This matter is before the court on defendant's motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. # 60). Having reviewed all materials filed, together with pertinent portions of the record, the court makes the following findings and order.

Factual Findings

On September 16, 1989, defendant was stopped by a Kansas City, Kansas police officer after the car he was driving sped away from the area where police were responding to a report of an attempted burglary. Also, the license tags on the vehicle were expired. The officer asked to see defendant's proof of insurance and defendant said it was in the car. When defendant turned around to retrieve it, the officer noticed a gun sticking out of defendant's suit coat. The officer took a fully-loaded Smith & Wesson .357 handgun from the holster defendant was wearing and placed him under arrest for possession of a handgun.

As the officer attempted to conduct a pat down search of defendant, defendant took a bag containing 20.3 grams of cocaine base ("crack cocaine") out of his front pants pocket and threw it down. The officer also found $928 in currency in a wad in defendant's pocket. While searching the passenger compartment of the vehicle, the officers found some government WIC food vouchers, a pipe used for smoking narcotics, and another bag containing 2.4 grams of rock crack cocaine. In the trunk, they found a paper bag containing a roll of $1,840 in U.S. currency, a blue Crown Royal bag containing $72.30 in assorted coins, and a brown paper sack containing $79.45 in assorted coins.

On October 4, 1989, defendant was charged in a two-count information with possession with intent to distribute approximately 27 grams of crack cocaine, a Schedule II controlled substance, in violation of 21 U.S.C. § 841(a)(1), and knowingly using or carrying a firearm during and in relation to a drug trafficking offense, in violation of 18 U.S.C. § 924(c).

On November 17, 1989, a jury was impaneled and the defendant's trial began. After the government presented nearly all of its case in chief, the defendant agreed to plead guilty to the lesser-included offense of simple possession of crack cocaine in violation of 21 U.S.C. § 844, and the section 924(c) gun count (Counts 1 and 2, of the Superseding Indictment, respectively). On November 20, 1989, the jury was dismissed after the defendant pled guilty to both counts.

During the plea colloquy, defendant raised no challenge to evidence that had been presented at trial as the factual basis for his plea on either count. Specifically, he made no mention of a legitimate purpose for the presence of the gun (although he did contend as much at the sentencing hearing). Defendant stated that he was satisfied with the services of his attorney, that it was his decision to enter the pleas, not his attorney's, and that he was entering his pleas freely and voluntarily.¹ Defendant admitted that he was entering the pleas of guilty because he was, in fact, guilty of the crimes charged.

Defendant was sentenced on January 22, 1990, to five years on Count 1 and five years on Count 2, to be served consecutively. Defendant did not take a direct appeal, but filed an initial section 2255 motion on February 24, 1992, seeking to vacate his sentence, alleging, inter alia, ineffective assistance of counsel and that possession of crack cocaine in violation of 21 U.S.C. § 844 cannot serve as a predicate act for an 18 U.S.C. § 924(c) violation. We denied defendant's motion and the Tenth Circuit affirmed. United States v. Watson, No. 92-3292, 1993 WL 128697, at *2 (10th Cir. April 22, 1993).

In this most recent section 2255 motion, defendant alleges ineffective assistance of counsel, that his plea to the gun count was not knowing and voluntary, and that there is no factual basis for his guilty plea on the section 924(c) charge. Defendant essentially raises two constitutional challenges, based on two recent Supreme Court opinions: (1) in light of Bailey v. United States, ___ U.S. ___, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), defendant could not violate section 924(c) by inadvertently carrying the firearm while possessing crack cocaine, and (2) in light of United States v. Lopez, ___ U.S. ___, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), section 844 is unconstitutional because simple possession of crack cocaine lacks the requisite interstate commerce connection for federal jurisdiction.

Analysis

I. The 18 U.S.C. § 924(c) firearm offense.

Defendant contends that he would not have pled guilty if his attorney had not erroneously advised him that he violated section 924(c) when he jointly possessed the gun and the crack cocaine. Defendant urges that, after Bailey, this advice is erroneous as a matter of law. He claims ineffective assistance of counsel and that his plea was not knowing and voluntary.

The government argues that defendant waived any such challenges by failing to raise them on direct appeal. Generally, a defendant may not raise issues which could have been raised on direct appeal in a section 2255 motion. United States v. Barnhardt, 93 F.3d 706, 708 (10th Cir.1996); Watson, 1993 WL 128697 at * 1 (citing United States v. Khan, 835 F.2d 749, 753 (10th Cir.1987)). "Failure to raise on direct appeal issues cognizable on direct appeal requires a section 2255 movant to show `cause and prejudice' to justify raising those issues in the section 2255 motion." Watson, 1993 WL 128697 at * 1.

However, the Tenth Circuit recently held that the Supreme Court's ruling in Bailey, ___ U.S. ___, 116 S.Ct. 501, applies retroactively to convictions resulting from guilty pleas. Barnhardt, 93 F.3d at 709; United States v. Deases, 923 F.Supp. 170, 171 (D.Kan.1996) (citing United States v. Fletcher, 919 F.Supp. 384 (D.Kan.1996)). "The rationale behind the ruling is that a person who pleads guilty to activity not constituting a crime should not be precluded from collaterally attacking the validity of the sentence for that activity (under 28 U.S.C. § 2255)." Id. Accordingly, defendant may challenge his sentence on the section 924(c) violation via a section 2255 motion.

With respect to defendant's claim of ineffective assistance of counsel, the Tenth Circuit has summarized the standards for evaluating claims of ineffective assistance of counsel in United States v. Smith, 10 F.3d 724, 728 (10th Cir.1993):

The benchmark of an ineffective assistance of counsel claim is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). "To establish ineffective assistance of counsel sufficient to warrant reversal of a conviction, the defendant must show that counsel's performance was deficient and that this deficient performance prejudiced the defense." United States v. Pena, 920 F.2d 1509, 1518 (10th Cir.1990) [cert. denied, 501 U.S. 1207, 111 S.Ct. 2802, 115 L.Ed.2d 975 (1991)] (citing Strickland, 466 U.S. at 687, 104 S.Ct. at 2064). Because a defendant must meet both of these requirements to establish an ineffective assistance of counsel claim, a claim may be disposed of for failure to meet either criteria. Strickland, 466 U.S. at 697, 104 S.Ct. at 2069; e.g., Coleman v. Brown, 802 F.2d 1227, 1233 (10th Cir. 1986).

The standard for determining whether an attorney's performance is deficient or not is that of reasonably effective assistance. "In any case presenting an ineffective assistance claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances" and a defendant must demonstrate that counsel's conduct fell below an objective standard of reasonableness given prevailing professional norms. Strickland, 466 U.S. at 688, 104 S.Ct. at 2064. In making this determination, we are to avoid the distorting effects of hindsight and we are required to "reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689, 104 S.Ct. at 2065. A defendant must overcome the strong presumption that "counsel's conduct falls within the wide range of reasonable professional assistance," and we are reminded that there are "countless ways to provide effective assistance" of counsel. Id.

Defendant alleges ineffective assistance in that his attorney erroneously advised him that he was guilty of a section 924(c) violation, and that he should plead guilty to the lesser-included charge of simple possession under section 844 (and the section 924(c) firearm violation). We find that counsel was not ineffective in either instance.

First, counsel's advice to defendant that he was legally guilty of violating section 924(c) was not erroneous. Even after Bailey, there was ample evidence that defendant violated section 924(c).

The Supreme Court in Bailey held that "to sustain a conviction under the `use' prong of § 924(c)(1), the Government must show that the defendant actively employed the firearm during and in relation to the predicate crime," mere possession will not suffice. Bailey, ___ U.S. at ___, 116 S.Ct. at 506; see also United States v. Miller, 84 F.3d 1244, 1260-61 (10th Cir.1996).

Defendant asserts that he did not violate section 924(c) because he was legally carrying the gun while engaging in the duties of his business as a retail grocer, pursuant to a "commission" issued to him by the sheriff's department. Defendant contends that he...