U.S. v. Williams

• Decision Date: 05 November 1996
• Docket Number: Civil No. 96-3169-SAC.,Criminal No. 93-40001-01-SAC.
• Citation: 948 F.Supp. 956
• Parties: UNITED STATES of America, Plaintiff/Respondent, v. Steve E. WILLIAMS, Defendant/Movant.
• Court: U.S. District Court — District of Kansas

948 F.Supp. 956

UNITED STATES of America, Plaintiff/Respondent, v. Steve E. WILLIAMS, Defendant/Movant.

Criminal No. 93-40001-01-SAC.

Civil No. 96-3169-SAC.

United States District Court, D. Kansas.

November 5, 1996.

Steve E. Williams, Littleton, CO, Pro Se and Susan L. Forman, Asst. Federal Public Defender, District of Colorado, Denver, CO, for Defendant.

Thomas G. Luedke, Office of United States Attorney, Topeka, KS, for the U.S.

MEMORANDUM AND ORDER

CROW, District Judge.

On April 22, 1993, the grand jury returned a ten count superseding indictment charging Steve E. Williams and others with conspiracy to distribute in excess of 100 kilograms of marijuana, distribution of marijuana, money laundering and other related crimes. Pursuant to a plea agreement, Williams plead guilty to Count One (conspiracy in violation of 21 U.S.C. § 846) and to Count Seven (money laundering in violation of 18 U.S.C. § 1956). In exchange, the government agreed to dismiss the remaining counts of the superseding indictment. On January 5, 1994, this court sentenced Williams to a primary term of incarceration of 292 months on Count 1 and to a concurrent sentence of 60 months on Count 7. On March 27, 1995, the Tenth Circuit affirmed the sentence imposed by this court. See United States v. Williams, 51 F.3d 287 (10th Cir.1995) (Table). Before this court, Williams was represented by retained counsel David Gilman.¹

This case comes before the court upon Williams' "Petition for Relief Pursuant to 28 U.S.C. § 2255" (Dk 227). In that motion, Williams argues that certain civil forfeiture actions barred his subsequent criminal convictions under double jeopardy principles. Williams also contends his guilty plea was involuntary based upon his attorney's "assurances" that his sentence would be between the range of 52 to 78 months. Williams contends that his reading skills were insufficient to fully understand the operation of the plea agreement and the extent of the penalty that he faced when he entered his plea. With additional time and improved reading skills afforded by his incarceration, Williams now contends that he would never have entered a guilty plea. Williams indicates that he rejected prior offers from the government which would have carried sentences of ten years or seventeen years. Finally, Williams contends that his attorney was ineffective for failing to raise double jeopardy as a defense to his criminal convictions. Williams contends that he is entitled to an evidentiary hearing to resolve the issues raised in his motion.

On May 13, 1996, the government filed its response to Williams' motion. The government contends that Williams' criminal convictions are not barred by double jeopardy. The government disputes Williams' recitation of the facts regarding his guilty plea and argues that he is not entitled to relief based upon the arguments he advances. "The government has no knowledge or record of offering such an agreement."² The government also contends that his counsel was not ineffective. Finally, the government contends that no evidentiary hearing is necessary as Williams' arguments are directly answered by the record in this case.

On June 19, 1996, Williams filed a reply to the government's response. Attached to Williams' reply is an affidavit which indicates that he would not have plead guilty if he knew his sentence would exceed 78 months.

At the time that Williams filed his § 2255 motion and reply brief, the federal courts were divided on the issue of whether civil forfeiture actions instigated by the federal government barred subsequent criminal prosecutions. See United States v. Carlos, 906 F.Supp. 582, 588-89 (D.Kan.1995), aff'd, No. 95-3362, 1996 WL 148583 (10th Cir. April 2, 1996) (summarizing federal court's divergent views on the issue). On June 24, 1996, the Supreme Court resolved the conflict among the circuits, holding that in rem civil forfeitures are neither punishment nor criminal for purposes of the Double Jeopardy Clause. See United States v. Ursery, ___ U.S. ___, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996).

The Supreme Court's holding in Ursery essentially destroyed all of Williams' double jeopardy arguments based upon the prior civil forfeitures as well as his ineffective assistance of counsel arguments tied to those same double jeopardy arguments. See United States v. Madrid, 94 F.3d 656 (10th Cir. 1996) (Table) (available on Westlaw 1996 WL 477294) (in light of Supreme Court's decision in Ursery, defendant has no basis for relief based upon double jeopardy, "and consequently no grounds for an ineffective assistance of counsel claim."). Sensing the death of his double jeopardy arguments, Williams filed a "Motion for Leave to Amend § 2255 Petition" (Dk. 233). In that motion, Williams seeks leave to amend his pleading in light of the Supreme Court's holding in Ursery. Williams contends that the Supreme Court's decision in Ursery does not foreclose an alternative argument that his criminal convictions were barred by the doctrine of res judicata, or in the alternative, that the sentence imposed on count one was a prohibited multiple and successive punishment. In regard to his alternative argument, Williams contends that because Count 1 was "an essential element of Count 7" he was punished twice by imposing a sentence on each count. "It is Mr. Williams' position that the sentence imposed as to Count 1 is invalid and must be set aside." Williams contends that Count 1, charging conspiracy, "as a matter of law, is the lesser included offense of Count 10, Continuing Criminal Enterprise" and that he is therefore entitled to vacation of Count 1.³

The government filed no response to Williams' motion for leave to amend.

In the interest of expediency, the court simply grants Williams' motion for leave to amend and will consider the arguments he advances in his amended "petition" on the merits. The court will consider his arguments seriatim.

Applicable Law

Section 2255 Motions

Title 28, section 2255 now provides in pertinent part:

A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall cause notice thereof to be served upon the United States attorney, grant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.

A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.

An appeal may be taken to the court of appeals from the order entered on the motion as from a final judgment on application for a writ of habeas corpus.

An application for a writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this section, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

A 1-year period of limitation shall apply to a motion under this section. The limitation period shall run from the latest of —

(1) the date on which the judgment of conviction becomes final;

(2) the date on which the impediment to making a motion created by governmental action in violation of the Constitution or laws of the United States is removed, if the movant was prevented from making a motion by such governmental action;

(3) the date on which the right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or

(4) the date on which the facts supporting the claim or claims presented could have been discovered through the exercise of due diligence.

Except as provided in section 408 of the Controlled Substances Act, in all proceedings brought under this section, and any subsequent proceedings on review, the court may appoint counsel, except as provided by a rule promulgated by the Supreme Court pursuant to statutory authority. Appointment of counsel under this section shall be governed by section 3006A of title 18.

. . . . .

"Section 2255 motions are not available to test the legality of matters which should have been raised on direct appeal." United States v. Warner, 23 F.3d 287, 291 (10th Cir.1994) (citation omitted). "Consequently, a defendant may not raise claims that were not presented on direct appeal unless he can show cause and prejudice resulting from the error." United States v. Cook, 45 F.3d 388, 392 (10th Cir.1995) (citing Warner). "A defendant may establish cause for his procedural default by showing that he received ineffective assistance of counsel in violation of the Sixth Amendment." Cook, 45 F.3d at 392 (citing Murray v. Carrier, 477 U.S. 478 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986)).

Ineffective Assistance of Counsel

The Sixth Amendment...