United States v. Dyess

• Decision Date: 16 September 2013
• Docket Number: No. 11–7335.,11–7335.
• Citation: 730 F.3d 354
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Calvin Douglas DYESS, a/k/a Carlos, a/k/a Calcutta, a/k/a Rawmel, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

730 F.3d 354

UNITED STATES of America, Plaintiff–Appellee,

v.Calvin Douglas DYESS, a/k/a Carlos, a/k/a Calcutta, a/k/a Rawmel, Defendant–Appellant.

No. 11–7335.

United States Court of Appeals,

Fourth Circuit.

Argued: May 16, 2013.

Decided: Sept. 16, 2013.

ARGUED:Jeffrey Michael Brandt, Robinson & Brandt, P.S.C., Covington, Kentucky, for Appellant. Kimberly Riley Pedersen, Office of United States Attorney, Alexandria, Virginia, for Appellee. ON BRIEF: Neil H. MacBride, United States Attorney, Alexandria, Virginia, for Appellee.

Before NIEMEYER, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge SHEDD wrote the opinion in which Judge NIEMEYER joined and in which Judge GREGORY joined as to Parts I, II, and IV. Judge GREGORY wrote a dissenting opinion as to Part III.

SHEDD, Circuit Judge:

Calvin Dyess pled guilty to conspiracy to distribute cocaine, cocaine base, and marijuana, in violation of 21 U.S.C. § 846 and 21 U.S.C. § 841(b), and conspiracy to commit money laundering, in violation of 18 U.S.C. § 1956, and was sentenced to life imprisonment. We affirmed his conviction and sentence on direct appeal. United States v. Dyess, 478 F.3d 224 (4th Cir.2007)( Dyess I ). Dyess then filed a 28 U.S.C. § 2255 motion, which the district court denied. Dyess v. United States, 2011 WL 3667528 (S.D.W.Va.2011)( Dyess II ). Dyess now appeals and, for the following reasons, we affirm.

I.

The facts and procedural history of Dyess' case are thoroughly recounted in our earlier opinion. See Dyess I at 226–33. Briefly, and as relevant here, Dyess and several co-conspirators were indicted in a thirteen-count indictment arising from their operation of a large-scale drug conspiracy in Charleston, West Virginia, from 1995 to 1998.¹ Before trial, the Government met with Dyess, indicating the strength of its case against him and informing him that he was likely to receive a life sentence unless he was acquitted or pled guilty and offered substantial assistance. Just days after meeting with the Government, Dyess entered a plea agreement whereby he agreed to plead guilty to conspiring to distribute cocaine, cocaine base, and marijuana and conspiring to commit money laundering. In exchange, the Government agreed to dismiss the remaining counts. Among the counts dismissed was a continuing criminal enterprise charge, 21 U.S.C. § 848, which carried a 20–year mandatory minimum sentence. At the plea hearing, the district court expressly told Dyess (among other things) that he was facing a sentence of ten years to life imprisonment on the drug conspiracy count. Dyess stated that he understood, and the court accepted his plea.

A presentence report (PSR) was prepared for Dyess, finding that he was responsible for 20 kilograms of cocaine, 80 kilograms of cocaine base, and 272.16 kilograms of marijuana. These drug amounts yielded a base-offense level of 38 and, when coupled with several enhancements, resulted in a guidelines range of life imprisonment. Dyess objected to the drug amounts and, at a contested sentencing hearing, the district court heard from multiple witnesses about the scope of Dyess' drug enterprise. For example, one witness, Leon Mitchell, testified that he and Dyess handled between 75 and 100 kilograms of cocaine, half of which they cooked into crack cocaine. The district court upheld the PSR's findings and accordingly sentenced Dyess to life.

Dyess timely appealed. While Dyess' appeal was pending, the Government was contacted by Rachel Ursala Rader, Dyess' wife during the conspiracy. Rader informed the Assistant U.S. Attorney (AUSA) that, during the investigation, she had engaged in a sexual relationship with William Hart, a detective and one of the lead investigators in Dyess' case. Rader also informed the AUSA that Hart had let her keep certain drug proceeds that she offered to turn over and had helped to craft her testimony at the sentencing hearing. When presented with this information, we issued an order remanding the case for appropriate proceedings.

On remand, Dyess moved to dismiss the indictment for government misconduct, to withdraw his plea, and to be resentenced.² The district court denied the first two requests and deferred ruling on the motion for resentencing pending an evidentiary hearing. Prior to this evidentiary hearing, however, the district judge (Judge Haden) passed away. The case was reassigned to District Judge Faber, who then held an evidentiary hearing limited to the issue of whether Hart's misconduct and the perjury of Rader (and several others) at the sentencing affected Dyess' sentence. The court explained that if the answer was “yes,” a new sentencing would be held. After the hearing, which included testimony from witnesses impacted by Hart's misconduct, the district court found the tainted testimony did not affect Dyess' sentence and declined to hold a resentencing. Dyess appealed, and we affirmed. Dyess I, 478 F.3d at 227.

In 2008, Dyess filed a motion to vacate his sentence under 28 U.S.C. § 2255. The district court eventually denied that motion. Dyess II, 2011 WL 3667528, at *13. Dyess filed this appeal, and this court granted Dyess a COA on six claims: (1) whether the district court erred in failing to address all claims raised in Dyess' § 2255 motion filed on September 29, 2008; (2) whether Dyess was sentenced in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (3) whether Dyess' trial counsel was ineffective for failing to discover and disclose Hart's misconduct; (4) whether Dyess' trial counsel was ineffective for failing to object to the superseding indictment's lack of specific drug quantities and in advising Dyess to plead guilty to the indictment; (5) whether Dyess' remand counsel was ineffective for failing to call all witnesses from Dyess' sentencing hearing to testify at the evidentiary hearing; and (6) whether Dyess' remand counsel was ineffective for failing to effectively challenge Dyess' guilty plea on remand. We review the district court's legal conclusions in denying Dyess' § 2255 motion de novo and its factual findings for clear error. United States v. Stitt, 552 F.3d 345, 350 (4th Cir.2008).

II.

Dyess' first contention is that the district court erred in failing to address all of his § 2255 claims. Dyess filed a “letter” with the court in June 2008 challenging his sentence and requesting appointment of counsel. The district court denied the motion for counsel, construed the letter as a § 2255 motion, and ordered Dyess to file the appropriate paperwork listing all his grounds for relief. Dyess then filed a § 2255 motion on September 29, 2008, listing out approximately 30 claims for relief, roughly 25 of which consisted of a single sentence with no further explanation or factual development. In February 2010, Dyess filed a request to file an “amended” § 2255 petition, raising 16 claims, most of which alleged ineffective assistance of counsel. Several of these claims were repeated from his earlier filings. The district court ruled that, “[g]iven Mr. Dyess' later submission” it was appropriate to consider only the claims in the amended petition. Dyess II, 2011 WL 3667528, at *1.

Dyess claims that the court erred in considering only the claims in the amended complaint and that the case should be remanded for consideration of the roughly 40 claims raised in his initial § 2255 motion and several letters. We disagree. With the exception of the Apprendi claim addressed below, Dyess has never identified which of these claims he believes to have merit. Most, as the Government notes, fail the requirement that a habeas petition “is expected to state facts that point to a real possibility of constitutional error.” Blackledge v. Allison, 431 U.S. 63, 75 n. 7, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) (internal quotation marks omitted). The rules governing habeas proceedings make this very point:

If it plainly appears from the motion and any attached exhibits, and the record of prior proceedings that the moving party is not entitled to relief, the judge must dismiss the motion.

Rule 4(b), Rules Governing Section 2255 Proceedings for the United States District Courts.

Thus, “vague and conclusory allegations contained in a § 2255 petition may be disposed of without further investigation by the District Court.” United States v. Thomas, 221 F.3d 430, 437 (3d Cir.2000). See also Jones v. Gomez, 66 F.3d 199, 204 (9th Cir.1995) (noting “conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief”) (internal quotation marks omitted); Andiarena v. United States, 967 F.2d 715, 719 (1st Cir.1992) (holding claim that included “wholly conclusory” “abstract allegation” was “properly subject to summary dismissal”). We do not believe the district court erred in limiting its review to the 16 claims in the amended petition that were supported by facts and argument, particularly where many of the claims in the amended § 2255 motion were also raised in the original filing and the rest consisted only of vague and conclusory allegations.

III.

Dyess next claims that his sentence violates Apprendi because the indictment did not allege a specific drug quantity. Under Apprendi, “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. In United States v. Promise, 255 F.3d 150, 156–57 (4th Cir.2001) (en banc), we held that Apprendi requires drug amounts under § 841(b) to be alleged in the indictment. Dyess thus argues that, because his conviction and sentence did not become final until after Apprendi,³ the superseding indictment's failure to supply a drug amount limits his maximum sentence to 20 years.⁴

Dyess' argument fails for two reasons. First, it is well settled that Dyess cannot “circumvent a proper ruling ......