United States v. Ayers, Criminal Action No. 08–364 (JDB)

• Decision Date: 08 May 2018
• Docket Number: Criminal Action No. 08–364 (JDB)
• Parties: UNITED STATES of America v. Lee AYERS, Defendant.
• Court: U.S. District Court — District of Columbia

312 F.Supp.3d 47

UNITED STATES of America

v.Lee AYERS, Defendant.

Criminal Action No. 08–364 (JDB)

United States District Court, District of Columbia.

Signed May 8, 2018

George P. Varghese, Jeffrey Pearlman, William Lee Woodruff, Erin O. Lyons, U.S. Attorney's Office for the District of Columbia, Washington, DC, for United States of America.

Michelle M. Peterson, Federal Public Defender for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JOHN D. BATES, United States District Judge

In many ways, Lee Ayers has locked himself in. He locked himself into legal trouble when he committed a series of crimes that led to both state and federal convictions. He locked himself into a twelve-year prison sentence by agreeing to it in a plea deal. And he locked himself into a sentencing date that happened to occur a month before a landmark bill reducing mandatory minimum sentences was passed into law. Now, Ayers has collaterally attacked his sentence, claiming that his trial counsel rendered ineffective assistance because she did not seek to continue his sentencing until after passage of the Fair Sentencing Act (FSA). His argument is not without appeal. However, for the reasons explained below, the Court will deny his claim.

I. BACKGROUND

Ayers was arrested on September 6, 2008, after attempting to flee officers of the District of Columbia Metropolitan Police Department (MPD) who were conducting a traffic stop of his car. Indictment [ECF No. 1] at 1; United States v. Ayers, 795 F.3d 168, 170 (D.C. Cir. 2015). Ayers accelerated away from the MPD officers, drove the wrong way down a one-way street, lost control of his car, and crashed. Ayers, 795 F.3d at 170. When MPD officers searched his car, they found 98.1 grams of cocaine base (crack cocaine), a Glock 27 pistol, a Beretta 9mm pistol, .40 caliber auto cartridges, .38 special cartridges, a glass cooking pot with cocaine residue, $3,800 in cash, zip-lock bags, and a small quantity of marijuana. Id. at 170–71 ; see Indictment at 1–3.

A federal grand jury indicted Ayers on four charges: possession with intent to distribute fifty or more grams of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii) ; using, carrying, and possessing a firearm during a drug trafficking offense, in violation of 18 U.S.C. § 924(c)(1) ; and two counts of unlawful possession of a firearm and/or ammunition by a felon, in violation of 18 U.S.C. § 922(g)(1). Indictment at 1–3. On April 1, 2010, Ayers entered into a plea agreement, which required him to plead guilty to the possession with intent to distribute offense—which carried a 120–month mandatory minimum—and to agree to a sentence of 144 months. See Plea Agreement [ECF No. 44] at 1–2. In exchange, the government dropped the other three charges—one of which carried a five-year mandatory minimum of its own—though Ayers had to acknowledge that the government had a factual basis for those claims, as well. See id. at 2, 4. The government also agreed to dismiss the sentence enhancements it had sought, see id. at 4, which would have doubled the mandatory minimum for Ayers's guilty plea due to his history of drug offenses. The agreement allowed Ayers to argue at sentencing that part or all of his sentence should run concurrently to any other sentence he was serving, and allowed the government to oppose concurrent sentencing. See id. at 2. Ayers was already serving a nine-year sentence imposed by the D.C. Superior Court for an assault charge stemming from a shootout. See Def.'s Mem. in Aid of Sentencing [ECF No. 49] at 8; Sentencing Tr. [ECF No. 79] at 21:4–:9.

Ayers pleaded guilty in open court on April 1, 2010, see Min. Order of Apr. 1, 2010; Tr. of Plea Hr'g [ECF No. 80] at 25:13–26:19, and the Court deferred a decision on the plea agreement, Tr. of Plea Hr'g at 23:11–:25. Ayers's attorney, Michelle Peterson, asked the Court to postpone sentencing until "toward the end of July": "[p]art of [her] argument" for concurrent sentencing was to "be based on the changes in the crack cocaine laws," so she wished to "have till the end of July to see how that's developing." Id. at 27:10–:18. The Court could not schedule a hearing for the end of July due to scheduling concerns, and suggested either much earlier in July or mid-August. Id. at 27:19–:21. Peterson responded that mid-August did not work for her and said "it would have to be the beginning of September." Id. at 27:22–:23. The Court asked whether that was her request. Id. at 27:24. After consulting with Ayers, Peterson said: "Early July would be fine then, Your Honor." Id. at 27:25–28:2. The Court set the sentencing hearing for July 9, see id. at 28:21–29:3, and Ayers was sentenced on that date to the agreed-upon 144 months, Sentencing Tr. at 38:1–:3. The Court rejected Peterson's argument for concurrent sentencing, running Ayers's sentence consecutive to his Superior Court sentence. Id. at 41.

As Ayers pleaded guilty and approached sentencing, the FSA was winding its way through Congress. The FSA was introduced in the Senate on October 15, 2009, but senators did not reach a compromise and pass the bill through the Senate Judiciary Committee until March 11, 2010. See Library of Congress, S.1789—Fair Sentencing Act of 2010, Congress.gov [hereinafter "FSA Enactment History"] (last updated Aug. 3, 2010), https://www.congress.gov/bill/111th-congress/senate-bill/1789/all-actions-without-amendments. The full Senate passed it by voice vote on March 17. Id. The House of Representatives passed the FSA on July 28, and President Barack Obama signed it on August 3. Id. During sentencing, Peterson pointed to the changes Congress appeared to be making to the crack/powder disparity as an argument for running at least part of Ayers's sentence concurrently. See Sentencing Tr. at 18:6–:17, 20:19–:24. Though the FSA had passed the Senate, and would eventually become law less than a month after Ayers's sentencing, Peterson did not seek a continuance of the sentencing date to wait for the possible passage of the FSA.

Ayers appealed his sentence, but the D.C. Circuit affirmed in July 2015. Ayers, 795 F.3d at 177–78. In February 2016, the D.C. Circuit decided United States v. Abney, 812 F.3d 1079 (D.C. Cir. 2015), holding that a defendant had a meritorious ineffective assistance of counsel ("IAC") claim when his attorney had failed to seek a continuance of his sentencing hearing, which took place after the House had passed the FSA and the day before the President signed it into law. On August 26, 2016, armed with the Abney decision, Ayers filed a motion to vacate his sentence under the federal habeas statute, 28 U.S.C. § 2255. See Mot. Under 28 U.S.C. § 2255 to Vacate, Set Aside, or Correct Sentence ("Mot. to Vacate") [ECF No. 59].¹ The Court ordered that Ayers be appointed counsel. See Min. Order of Nov. 29, 2016. The government opposed Ayers's habeas motion, see U.S.'s Opp'n to Def.'s Pro Se Mot. Under 28 U.S.C. § 2255 ("Opp'n") [ECF No. 62], Ayers filed a reply, see Def.'s Reply [ECF No. 77], and the government filed a surreply, see U.S.'s Surreply [ECF No. 78]. The Court ordered an evidentiary hearing, see Scheduling Order [ECF No. 69], and after multiple delays two hearings were held on November 27 and December 12, 2017, see Evid. Hr'g Tr. [ECF Nos. 84, 88]. After the evidentiary hearings, both parties filed final briefs. See Def.'s Br. in Supp. of His Mot. Under 28 U.S.C. § 2255 ("Def.'s Br.") [ECF No. 93]; U.S.'s Final Opp'n to Def.'s Mot. Under 28 U.S.C. § 2255 ("U.S.'s Final Opp'n") [ECF No. 92]. A final motions hearing occurred on February 16, 2018.

II. LEGAL STANDARD

A federal prisoner may bring a habeas corpus action in district court "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." 28 U.S.C. § 2255(a). While "the general rule [is] that claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice," defendants may bring IAC claims for the first time on collateral review without having to meet these standards.

Massaro v. United States, 538 U.S. 500, 504, 509, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003). Instead, IAC claimants "must show [1] ‘that counsel's performance was deficient’ such that ‘counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment’ and [2] that ‘the deficient performance prejudiced the defense.’ " United States v. Glover, 872 F.3d 625, 630 (D.C. Cir. 2017) (quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). A court may deny an IAC claim on either of these two prongs without addressing the other. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052.

III. DISCUSSION

Ayers claims that Peterson rendered ineffective assistance by failing to seek a continuance of his sentencing until after the FSA became law. Ayers also makes the alternative argument that he should be resentenced "in the interests of justice." The Court addresses these arguments in turn.

A. INEFFECTIVE ASSISTANCE OF COUNSEL

Ayers's main contention is that his trial attorney, Michelle Peterson, rendered ineffective assistance of counsel in violation of the Sixth Amendment. The government contests both the idea that Peterson's performance was deficient and the claim that her failure to seek a continuance resulted in prejudice to Ayers. Ultimately, however, the Court need not reach the second prong of the Strickland test, because the Court finds that Ayers has failed to satisfy the first.

To make out a successful IAC claim, a defendant must prove that his counsel was deficient. Under Strickland, "[t]he proper measure of attorney performance" is "reasonableness under prevailing professional norms." 466 U.S. at 688, 104 S.Ct. 2052. Thus, an...